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Agricultural Marketing Service, Department of Agriculture (USDA).
Final rule.
This rule implements a recommendation from the Almond Board of California (Board) to change multiple provisions in the administrative requirements prescribed under the Federal marketing order regulating the handling of almonds grown in California (Order). This action amends administrative requirements regulating quality control, exempt dispositions, and interest and late charges provisions. In addition, the rule stays two sections of the administrative requirements that define almond butter and stipulate disposition in reserve outlets by handlers to facilitate the efficient administration of the Order.
Effective November 1, 2023.
Peter Sommers, Marketing Specialist, or Gary Olson, Chief, West Region Branch, Market Development Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email:
Small businesses may request information on complying with this regulation by contacting Richard Lower, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-8085, or Email:
This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This final rule is issued under Marketing Order No. 981, as amended (7 CFR part 981), regulating the handling of almonds grown in California. Part 981 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Board locally administers the Order and comprises growers and handlers of almonds operating within the production area.
The Agricultural Marketing Service (AMS) is issuing this rule in conformance with Executive Orders 12866, 14094 and 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 reaffirms, supplements, and updates Executive Order 12866 and further directs agencies to solicit and consider input from a wide range of affected and interested parties through a variety of means. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.
This rule has been reviewed under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have Tribal implications. AMS has determined this rule is unlikely to have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of the entry of the ruling.
This final rule amends administrative requirements in the Order regulating quality control, exempt dispositions, and interest and late charges provisions. In addition, the rule stays two sections of the administrative requirements that define almond butter and stipulate disposition in reserve outlets by handlers. This action modifies the Order's requirements to reflect updates in industry practices and is expected to help facilitate the orderly administration of the Order.
The Board initially recommended the changes effectuated herein, along with proposed changes to the Order's roadside stand exemption and credit-back provisions, at meetings held on December 7, 2020, and June 17, 2021. AMS subsequently published a proposed rule in the
After consideration of the comments received during the proposed rule's initial comment period, AMS reopened the comment period for 15 additional days from June 22, 2022, to July 7, 2022
Given the opposition to proposed changes to the credit-back and roadside stand exemption provisions in the Order, AMS published a withdrawal of the proposed rule in the
The Board met on September 30, 2022, and unanimously recommended the resubmission of the proposed changes to the Order's regulations, minus the previously proposed changes to the credit-back and roadside stand exemption provisions. Excepting the previously discussed provisions that were removed, the modifications to the Order's regulations, as effectuated herein, are identical to the changes proposed in the initial proposed rule published February 22, 2022 (87 FR 9455). A proposed rule concerning this action was published in the
Multiple sections in the Order provide the authority for this action. The authorities are cited with the descriptions of each of the changes in the following narrative.
Section 981.42 of the Order provides the authority to establish quality control regulations for both incoming and outgoing product. Section 981.442 of the Order's administrative requirements establishes quality control regulations under that authority. Section 981.442(a) establishes the quality requirements for incoming product received by handlers. Section 981.442(b) establishes the quality requirements for outgoing product prior to being shipped by handlers.
This final rule modifies provisions in § 981.442(a) to clarify ambiguous language, remove irrelevant dates, and more clearly define “accepted user” as it is referenced in the regulations. The rule also relaxes the requirements for handlers in meeting their disposition obligation under the regulations. The incoming quality requirements have been amended to allow inedible kernels, foreign material, and other defects sorted from off-site cleaning facilities to be credited to a handler's disposition obligation. In addition, almond meal will be allowed to meet the non-inedible portion of the disposition obligation, with the meal content to be determined in a manner acceptable to the Board.
In § 981.442(b), the rule amends the regulations to facilitate handlers utilizing off-site cleaning and treatment facilities in fulfillment of their quality control requirements. The action will allow the transfer of product for off-site cleaning without the transfer being considered a shipment, designates off-site treatment facilities as “custom processors,” and establishes application and approval procedures for Board authorization of such custom processors. This final rule also clarifies the roles of the Technical Expert Review Panel (TERP) and the Board in administering the program as detailed in several provisions in § 981.442(b). Lastly, the rule refines the duties of a Direct Verifiable (DV) program auditor to disallow individuals who conduct process validations from being named as the DV auditor for that same equipment used in the treatment process.
Section 981.50 of the Order establishes handler reserve obligation requirements. Under those Order provisions, certain products are exempted from the reserve obligation, subject to the accountability of the Board. Section 981.450 establishes the provisions for exempt dispositions under the reserve obligation. This rule enhances the procedures currently in place for the Board to account for exempt dispositions. Moving forward, outlets for exempted product will need to be pre-approved by the Board in accordance with the requirements contained in § 981.442(a)(7). Finally, because “animal feed” encompasses “poultry feed,” § 981.450 is simplified by removing any reference to the word “poultry.”
Section 981.66(b) of the Order establishes the conditions governing the disposition of reserve product. Within that paragraph, diversion of reserve almonds to be manufactured into almond butter is listed as an allowable outlet for such product. Section 981.466 further defines “almond butter” as used in § 981.66. The expanded definition of almond butter is no longer relevant in the administration of the program. Therefore, this rule stays § 981.466 indefinitely.
Section 981.467 establishes the requirements regarding the disposition in reserve outlets by handlers. The section details the establishment of agents of the Board, delineates reserve credit in satisfaction of a reserve obligation, sets minimum prices, and establishes certain dates pertaining to the reserve disposition obligations. As the Order is not currently regulating volume, and a significant portion of the requirements are outdated, the provisions in § 981.467 are not currently relevant to the administration of the Order. As such, this rule stays the entire section indefinitely.
Lastly, § 981.481 stipulates the requirements for submission of handler assessment payments, which include documentary requirements for proof of timely submission of assessment payments. Other than actual receipt of payment in the Board's office within 30 days of the invoice date on the handler's statement, the current provisions only identify the U.S. Postal Service postmark as proof of timely submission. This rule adds “or by some other verifiable delivery tracking system” to the section to allow handlers alternative delivery methods.
The Board believes that the changes effectuated herein are necessary to update the Order's administrative requirements to adapt to changes in the industry and to reflect current industry practices. Many of the revisions are conforming changes, but this final rule also makes changes to the quality control regulations that the Board views as essential to the continued efficient administration of the Order. The changes contained herein are expected to facilitate the orderly marketing of California almonds and benefit growers and handlers in the industry.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this final rule on small entities. Accordingly, AMS prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 7,600 almond growers in the production area and approximately 100 handlers subject to regulation under the Order. At the time this analysis was prepared, small agricultural almond producers were defined by the Small Business Administration (SBA) as those having annual receipts equal to or less than $3,750,000 (North American Industry
National Agricultural Statistics Service (NASS) reported in its 2017 Census of Agriculture (Census) that there were 7,611 almond farms in the production area, of which 6,683 had bearing acres. Additionally, the Census indicates that out of the 6,683 California farms with bearing acres of almonds, 4,425 (66 percent) have fewer than 100 bearing acres.
In its annual Noncitrus Fruits and Nuts Publication, NASS reported a 2021 crop year average yield of 2,210 pounds per acre and a season average grower price of $1.86 per pound. Therefore, a 100-acre farm with an average yield of 2,220 pounds per acre would produce about 222,000 pounds of almonds (2,220 pounds times 100 acres equals 221,000 pounds). At $1.86 per pound, that farm's production would be valued at $412,920 (222,000 pounds times $1.86 per pound equals $412,920). Since the Census indicates that 66 percent of California's almond farms are less than 100 acres, it may be concluded that the majority of California almond growers had annual receipts from the sale of almonds of less than $412,920 for the 2020-21 crop year, which is below the SBA threshold of $3,750,000 for small producers. Therefore, the majority of growers may be classified as small businesses.
To estimate the proportion of almond handlers that would be considered small businesses, it was assumed that the unit value per pound of almonds exported in a particular year may serve as a representative almond price at the handler level. A unit value for a commodity is the value of exports divided by the quantity exported. Data from the Global Agricultural Trade System (GATS) database of USDA's Foreign Agricultural Service showed that the value of almond exports from August 2020 to July 2021 (combining shelled and inshell) was $4.647 billion. The quantity of almond exports over that time-period was 2.162 billion pounds. Dividing the export value by the quantity yields a unit value of $2.15 per pound ($4.647 billion divided by 2.162 billion pounds equals $2.15).
NASS estimated that the California almond industry produced 2.915 billion pounds of almonds in 2021. Applying the $2.15 derived representative handler price per pound to total industry production results in an estimated total revenue at the handler level of $6.267 billion (2.915 billion pounds × $2.15 per pound). With an estimated 100 handlers in the California almond industry, average revenue per handler would be approximately $62.67 million ($6.267 billion divided by 100). Assuming a normal distribution of revenues, most almond handlers shipped almonds valued at more than $34,000,000 during the 2010-21 crop year. Therefore, the majority of handlers may be classified as large businesses.
This final rule revises multiple provisions in the Order's administrative requirements. This action amends regulations covering the Order's quality control, exempt dispositions, and interest and late charges provisions. In addition, it stays regulations contained in §§ 981.466 and 981.467. One of the sections that is stayed defines almond butter and the other regulates almond disposition in reserve outlets by handlers. Both sections are stayed indefinitely.
More specifically, in § 981.442(a), the rule clarifies ambiguous language, removes irrelevant dates, and more clearly defines the term “accepted user” as it is referenced in the regulations. It also relaxes the requirements for handlers in meeting their disposition obligation under the Order.
Additionally, in § 981.442(b), the rule change will allow the transfer of product for off-site cleaning without the transfer being considered a shipment, designate off-site treatment facilities as “custom processors,” and establish application and approval procedures for Board authorization of custom processors. This action also clarifies the roles of the TERP and the Board in administering the program in several subparagraphs in the section. Further, this rule refines the definition of a DV program auditor to disallow individuals who conduct process validations from being named as the DV auditor for that same equipment used in the treatment process.
This rule also amends § 981.450 to require outlets for exempted product be Board-approved, in accordance with § 981.442(a)(7).
Further, § 981.466, which defines “almond butter” as it is used in § 981.66(b), is no longer relevant in the administration of the program and is stayed indefinitely. In addition, as the Order is not currently regulating volume, § 981.467 is not necessary for the administration of the Order and is also stayed indefinitely.
Lastly, this action revises § 981.481 by adding “or by some other verifiable delivery tracking system” to the requirements to allow handlers alternative trackable delivery methods for demonstration of timely submission of assessment payments.
The authorities for the changes detailed above are contained in §§ 981.42, 981.50, 981.66, 981.67, and 981.81 of the Order.
The Board believes that the administrative requirement revisions effectuated herein are necessary to reflect changes in the industry and to update the regulations to reflect current practices. Many of the modifications are conforming changes, but this action also makes substantive changes to quality control requirements that the Board views as essential to the efficient administration of the Order. The changes contained herein are expected to facilitate the orderly marketing of California almonds and benefit growers and handlers in the industry.
Initially, the Board unanimously recommended the changes contained herein, along with other recommended changes that were subsequently removed from consideration. The Board unanimously recommended the changes contained herein at a meeting on September 30, 2022.
AMS anticipates this final rule will impose minimal, if any, additional costs on handlers or growers, regardless of size. The changes to the administrative requirements are intended to clarify certain provisions, remove ambiguous and obsolete language, and adapt the requirements to facilitate the orderly marketing of almonds. The benefits derived from this rule are not expected to be disproportionately more or less for small handlers or growers than for larger entities.
The Board considered alternatives to this action, including making no changes to the current requirements and only making changes to some of the requirements. After consideration of all the alternatives, and in consultation with AMS, the Board determined that making the recommended changes is the best option to facilitate the Order's administration, contribute to the orderly marketing of almonds, and provide the greatest benefit to growers and handlers while maintaining the integrity of the Order.
Further, the Board's meeting was widely publicized throughout the California almond industry, and all interested persons were invited to
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB Nos. 0581-0178 (Vegetable and Specialty Crops) and 0581-0242 (Almond Salmonella). This rule announces AMS's intent to request approval from OMB for amendments made to existing information collections under OMB Nos. 0581-0178 and 0581-0242, and for a new information collection under OMB No. 0581-NEW.
Upon publication of this final rule, AMS will submit a Justification for Change to OMB for the ABC Form 52—Direct Verifiable (DV) Program for Further Processing of Untreated Almonds Application Form (OMB No. 0581-0242). The form is necessary to administer the DV Program established by § 981.442(b)(6)(i) in the Order's quality control requirements. The rule changes the body that approves DV Program applications from the TERP to the Board. The instructions that accompany ABC Form 52 need to be revised accordingly.
Lastly, this final rule creates a new form for California almond handlers, titled ABC Form 55, “Custom Processor Application.”
The Order's quality control requirements for outgoing product require handlers to subject their almonds to a treatment process or processes prior to shipment to reduce potential
An individual desiring approval as a custom processor must demonstrate that their facility meets the Order's treatment process requirements and must submit an application to the Board. ABC Form 55, “Custom Processor Application,” must be submitted directly to the Board once each year no later than July 31. The application provides the Board with the name of the applicant, the location of each treatment facility covered by the application, applicant contact information, and certification that the applicant's technology and equipment provide a treatment process that has been validated by a Board-approved process authority.
The Order authorizes the Board to collect certain information necessary for the administration of the Order. The information collected will only be used by authorized representatives of the AMS, including the AMS Specialty Crops Program regional and headquarters staff, and authorized employees of the Board. All proprietary information will be kept confidential in accordance with the Act and the Order.
The request for new information collection under the Order is as follows:
A 60-day comment period regarding the information collection related to this rule was imbedded in the proposed rule that was published on April 27, 2023 (88 FR 25565). The comment period closed June 26, 2023. One comment was received. The commentor expressed opinions on the sustainability of almond production but did not address the merits of the proposed information collection. Therefore, AMS made no changes to the information collection requirements as proposed.
Upon approval by OMB, this information collection will be merged with the information collection currently approved under OMB No. 0581-0242 (Almond Salmonella).
As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Further, the Board's meetings are widely publicized throughout the California almond industry, and all interested persons are invited to attend the meetings and participate in Board deliberations on all issues. Like all Board meetings, the December 7, 2020, June 17, 2021, and September 30, 2022, meetings were open to the public, and all entities, both large and small, were able to express their views on the proposed changes. Also, the Board has several appointed committees to review certain issues and make recommendations to the Board. The Board's Almond Quality, Food Safety, and Services Committee met several times in 2019 and discussed these changes in detail. Those meetings were also public meetings, and both large and small entities were able to participate and express their views. Finally, interested persons were invited to submit comments on the proposed rule, including the regulatory and information collection impacts of this action on small businesses.
A proposed rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendations submitted by the Board, feedback from commenters, and other available information, AMS has determined that this final rule tends to effectuate the declared policy of the Act.
Marketing agreements, Nuts, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Agricultural Marketing Service amends 7 CFR part 981 as follows:
7 U.S.C. 601-674.
The revisions read as follows:
(a) * * *
(1)
(4) * * *
(i) The weight of inedible kernels in excess of 2 percent of kernel weight reported to the Board of any variety received by a handler shall constitute that handler's disposition obligation. For any almonds sold inshell, the weight may be reported to the Board and the disposition obligation for that variety reduced proportionately.
(5)
(b)
(2)
(3) * * *
(i) Validation means that the treatment technology and equipment have been demonstrated to achieve in total a minimum 4-log reduction of
(v) The TERP, in coordination with the Board, may revoke any approval for cause. The Board shall notify the process authority in writing of the reasons for revoking the approval. Should the process authority disagree with the decision, they may appeal the decision in writing to the Board, and ultimately to USDA. A process authority whose approval has been revoked must submit a new application to the TERP and await approval.
(4) * * *
(i) By May 31, each handler shall submit to the Board a Handler Treatment Plan (Treatment Plan) for the upcoming crop year. A Treatment Plan shall describe how a handler plans to treat his or her almonds and must address specific parameters as outlined by the Board for the handler to ship almonds. Such plan shall be reviewed by the Board, in conjunction with the inspection agency, to ensure it is complete and can be verified, and be approved by the Board. Almonds sent by a handler for treatment at a custom processing facility affiliated with another handler shall be subject to the approved Treatment Plan utilized at that facility. Handlers shall follow their own approved Treatment Plans for almonds sent to custom processors that are not affiliated with another handler.
(v) Custom processors shall provide access to the inspection agency and Board staff for verification of treatment and review of treatment records. Custom processors shall utilize technologies that have been determined to achieve, in total, a minimum 4-log reduction of Salmonella bacteria in almonds, pursuant to a letter of determination issued by FDA or accepted by the TERP. Custom processors must submit a Custom Processor Application, ABC Form 55, to the Board annually by July 31. A custom processor who submits a timely application, and utilizes a treatment process or processes that has been validated by a Board-approved process authority and approved by the Board in conjunction with the TERP, shall be approved by the Board for handler use. The Board may revoke any such approval for cause. The Board shall notify the custom processor of the reasons for revoking the approval. Should the custom processor disagree with the Board's decision, it may appeal the decision in writing to USDA. Handlers may treat their almonds only at custom processor treatment facilities that have been approved by the Board.
(6) * * *
(i) Handlers may ship untreated almonds for further processing directly to manufacturers located within the U.S., Canada, or Mexico. This program shall be termed the Direct Verifiable (DV) program. Handlers may only ship untreated almonds to manufacturers who have submitted ABC Form No. 52, “Application for Direct Verifiable (DV) Program for Further Processing of Untreated Almonds,” and have been approved by the Board. Such almonds must be shipped directly to approved manufacturing locations, as specified on Form No. 52. Such manufacturers (DV Users) must submit an initial Form No. 52 to the Board for review and approval in conjunction with the TERP. Should the applicant disagree with the Board's decision concerning approval, it may appeal the decision in writing to the Board, and ultimately to USDA. For subsequent crop years, approved DV Users with no changes to their initial application must send the Board a letter, signed and dated, indicating that there are no changes to the application the Board has on file. Approved DV Users desiring to make changes to their approved application must resubmit Form No. 52 to the Board for approval. The TERP, in coordination with the Board, may revoke any approval for cause. The Board shall notify the DV User in writing of the reasons for revoking the approval. Should the DV User disagree with the decision, it may appeal the decision in writing to the Board, and ultimately to USDA. A DV User whose approval has been revoked must submit a new application to the Board and await approval. The Board shall issue a DV User code to an approved DV User. Handlers must reference such code in all documentation accompanying the lot and identify each container of such almonds with the term “unpasteurized.” Such lettering shall be on one outside principal display panel, at least
(A) Subject such almonds to a treatment process or processes using technologies that achieve in total a minimum 4-log reduction of
(C) Have their treatment technology and equipment validated by a Board approved process authority and accepted by the TERP. Documentation must be provided with their DV application to verify that their treatment technology and equipment have been validated by a Board-approved process authority. Such documentation shall be sufficient to demonstrate that the treatment processes and equipment achieve a 4-log reduction in
(D) Have their technology and procedures verified by a Board-approved DV auditor to ensure they are being applied appropriately. A DV auditor may not be an employee of the manufacturer that they are auditing. A DV auditor may not be the same individual who conducted the process validation accepted by the TERP for the equipment being audited. DV auditors must submit a report to the Board after conducting each audit. DV auditors must submit an initial application to the Board on ABC Form No. 53, “Application for Direct Verifiable (DV) Program Auditors,” and be approved by the Board in coordination with the TERP. Should the applicant disagree with the decision concerning approval, they may appeal the decision in writing to the Board, and ultimately to USDA. For subsequent crop years, approved DV auditors with no changes to their initial application must send the Board a letter, signed and dated, indicating that there are no changes to the application the Board has on file. Approved DV auditors whose status has changed must submit a new application. The Board, in coordination with the TERP, may revoke any approval for cause. The Board shall notify the DV auditor in writing of the reasons for revoking the approval. Should the DV auditor disagree with the
As provided in § 981.50, any handler disposing of almonds for crushing into oil, or for animal feed, may have the kernel weight of these almonds excluded from their program obligations, so long as:
(a) The handler qualifies as, or delivers such almonds to, a Board-approved accepted user;
(b) Each delivery is made directly to the accepted user by June 30 of each crop year; and
(c) Each delivery is certified to the Board by the handler on ABC Form 8.
(a) Pursuant to § 981.81(e), the Board shall impose an interest charge on any handler whose assessment payment has not been received in the Board's office within 30 days of the invoice date shown on the handler's statement, unless an envelope containing the payment has been legibly postmarked by the U.S. Postal Service or some other verifiable delivery tracking system as having been remitted within 30 days of the invoice date. The interest charge shall be a rate of one and a half percent per month and shall be applied to the unpaid assessment balance for the number of days all or any part of the unpaid balance is delinquent beyond the 30-day payment period.
(b) In addition to the interest charge specified in paragraph (a) of this section, the Board shall impose a late payment charge on any handler whose payment has not been received in the Board's office within 60 days of the invoice date, unless an envelope containing the payment has been legibly postmarked by the U.S. Postal Service or some other verifiable delivery tracking system as having been remitted within 60 days of the invoice date. The late payment charge shall be 10 percent of the unpaid balance.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for all Airbus SAS Model A330-200 series airplanes; Model A330-200 Freighter series airplanes; Model A330-300 series airplanes; Model A330-800 series airplanes; Model A330-900 series airplanes; Model A340-200 series airplanes; and Model A340-300 series airplanes. This AD was prompted by a report of cracks found in the fuel control unit housing assembly of a Honeywell GTCP331-350 auxiliary power unit (APU), which caused fuel leakage in the APU compartment. This AD requires replacing any affected APU fuel control unit or affected APU, as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. This AD also prohibits the installation of affected parts under certain conditions. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective November 6, 2023.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 6, 2023.
• For EASA material incorporated by reference in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
• For Honeywell International Inc. service information incorporated by reference in this AD, contact Honeywell International, Inc., 111 South 34th Street, Phoenix, AZ 85034; phone: (800) 601-3099; fax: (602) 365-5577; website:
• You may view this material at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available in the AD docket at
Timothy Dowling, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3667; email
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Model A330-200 series airplanes; Model A330-200 Freighter series airplanes; Model A330-300 series airplanes; Model A330-800 series airplanes; Model A330-900 series airplanes; Model A340-200 series airplanes; and Model A340-300 series airplanes. The NPRM published in the
In the NPRM, the FAA proposed to require replacing any affected APU fuel control unit or affected APU, as specified in EASA AD 2023-0057. The NPRM also proposed to prohibit the installation of affected parts under certain conditions. The FAA is issuing this AD to address the unsafe condition on these products.
You may examine the MCAI in the AD docket at
The FAA received no comments on the NPRM or on the determination of the cost to the public.
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
EASA AD 2023-0057 specifies procedures for replacing affected APU fuel control units or APUs. EASA AD 2023-0057 also prohibits the installation of affected parts under certain conditions.
Honeywell Service Bulletin GTCP331-49-7954, dated December 19, 2007, specifies serial numbers for affected APU fuel control units.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA estimates that this AD affects 128 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA has included all known costs in its cost estimate. According to the APU manufacturer, however, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil 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,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective November 6, 2023.
None.
This AD applies to all Airbus SAS airplanes specified in paragraphs (c)(1) through (7) of this AD, certificated in any category.
(1) Model A330-201, -202, -203, -223, and -243 airplanes.
(2) Model A330-223F and -243F airplanes.
(3) Model A330-301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes.
(4) Model A330-841 airplanes.
(5) Model A330-941 airplanes.
(6) Model A340-211, -212, and -213 airplanes.
(7) Model A340-311, -312, and -313 airplanes.
Air Transport Association (ATA) of America Code 49, Airborne Auxiliary Power.
This AD was prompted by a report of cracks in the fuel control unit housing assembly of a Honeywell GTCP331-350
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2023-0057, dated March 16, 2023 (EASA AD 2023-0057).
(1) Where EASA AD 2023-0057 refers to its effective date; this AD requires using the effective date of this AD.
(2) This AD does not adopt the “Remarks” section of EASA AD 2023-0057.
(3) Where EASA AD 2023-0057 defines “the SB,” for this AD, operators must use Honeywell Service Bulletin GTCP331-49-7954, dated December 19, 2007.
The following provisions also apply to this AD:
(1)
(2)
(3) Required for Compliance (RC): Except as required by paragraph (i)(2) of this AD, if any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.
For more information about this AD, contact Timothy Dowling, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3667; email
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2023-0057, dated March 16, 2023.
(ii) Honeywell Service Bulletin GTCP331-49-7954, dated December 19, 2007.
(3) For EASA AD 2023-0057, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) For Honeywell service information identified in this AD, contact Honeywell International, Inc., 111 South 34th Street, Phoenix, AZ 85034; phone: (800) 601-3099; fax: (602) 365-5577; website:
(5) You may view this material at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(6) You may view this material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is superseding Airworthiness Directive (AD) 64-09-03, which applied to all de Havilland (type certificate now held by Viking Air Limited (Viking)) Model DHC-2 “Beaver” airplanes. AD 64-09-03 required inspecting the aileron mass balance weight arms for cracks and corrosion and replacing any damaged part. Since the FAA issued AD 64-09-03, Transport Canada superseded its mandatory continuing airworthiness information (MCAI) to correct an unsafe condition on these products. This AD requires incorporating into the existing maintenance records for your airplane the actions and associated thresholds and intervals, including life limits, specified in a supplemental inspection and corrosion control manual for Model DHC-2 airplanes. This AD also requires completing all of the initial tasks identified in this manual and reporting certain corrosion findings to Viking. The actions in this supplemental inspection and corrosion control manual include the inspection of the aileron balance weight arms required by AD 64-09-03. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective November 6, 2023.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 6, 2023.
• For service information identified in this final rule, contact Viking Air Limited Technical Support, 1959 de Havilland Way, Sidney, British Columbia, Canada V8L 5V5; phone: (800) 663-8444; fax: (250) 656-0673; email:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 901 Locust, Kansas City, MO 64106. For information on the availability of this material at the FAA, call (817) 222-5110.
James Delisio, Continued Operational Safety Program Manager, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (516) 228-7321; email:
The FAA issued a notice of proposed rulemaking (NPRM) to supersede AD 64-09-03, Amendment 718 (29 FR 5390, April 22, 1964) (AD 64-09-03). AD 64-09-03 applied to all de Havilland (type certificate now held by Viking Air Limited) Model DHC-2 “Beaver” airplanes. AD 64-09-03 required repetitively inspecting the aileron mass balance weight arms for cracks and corrosion and replacing any damaged part. AD 64-09-03 resulted from cracks and corrosion found on aileron mass balance weight arm part numbers (P/Ns) C2WA151, C2WA152, C2WA127, and C2WA128. The FAA issued AD 64-09-03 to address corrosion-related degradation of the aileron mass balance weight arms which, if not addressed, could lead to structural failure with consequent loss of control of the airplane.
The NPRM published in the
You may examine the MCAI in the AD docket at
In the NPRM, the FAA proposed to require establishing a corrosion prevention and control program approved by the FAA. In the NPRM, the FAA also proposed to require completing all of the initial tasks identified in the program and reporting corrosion findings to Viking.
The FAA issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to supersede AD 64-09-03. The SNPRM published in the
The FAA received comments from three individuals. The following presents the comments received on the SNPRM and the FAA's response to each comment.
One individual commenter requested that the FAA reconsider issuing the proposed AD and a second individual commenter requested that the FAA withdraw the proposed rulemaking. The first commenter noted that during an annual inspection, a licensed Airframe and Powerplant (A&P) mechanic can determine if an airplane has been properly maintained and if corrosion is present. This commenter indicated that, by issuing the proposed AD, the FAA would force many operators and pilots to give up their airplanes due to exorbitant costs. This commenter stated that because one or two airplanes were found with extensive corrosion, all Model DHC-2 airplanes should not be placed in the same category and that “the Beaver” is one of the finest built airplanes and should be respected as such.
The second individual commenter stated that the FAA must stop broad brushing all airplanes of a certain build as the same. The commenter noted that a Model DHC-2 “Beaver” built in 1948 is not the same as one built in 1967 and that the lifetime use of service and environmental conditions determine an airplane's risk factors. The commenter explained that many Beavers have thousands of pages of flight records spanning over 70 years that allow owners and maintainers to subjectively evaluate an airplane's condition and operating environments; therefore, based on the points above, the FAA should immediately withdraw the proposed rulemaking because it lacks merit.
The FAA acknowledges the commenters' concerns regarding the impact this final rule will have on operators and pilots. As noted by the first commenter, Model DHC-2 airplanes are currently required to perform annual and 100-hour inspections, including inspections for corrosion, that are required by the Federal Aviation Regulations. The FAA does not agree that these current regulations require the same inspections as those proposed in the SNPRM. The inspections proposed in the SNPRM are focused on certain areas of the airplane and are more detailed than those covered in the required annual or 100-hour inspections. The inspections required by this AD are part of a supplemental inspection and corrosion prevention program that is included in Parts 2 and 3 of Viking PSM 1-2-5, Revision 1. These inspection types and intervals address locations or parts that are not currently required to be inspected as part of annual or 100-hour inspections in existing regulations. These new inspections and intervals are needed to detect and address corrosion, which could lead to structural failure with consequent loss of control of the airplane.
The FAA also acknowledges the first commenter's concern regarding the “exorbitant cost” of complying with the requirements of this AD that could result in operators and pilots having to give up their airplanes. Under 14 CFR 39.1, issuance of an AD is based on the finding that an unsafe condition exists or is likely to develop in aircraft of a particular type design. An aging airplane requires more attention during maintenance procedures and, at times, more frequent inspections of structural components to detect damage due to environmental deterioration, accidental damage, and fatigue. The unsafe condition addressed in this final rule includes undetected corrosion, which could lead to structural failure and consequent loss of control of the airplane. Inspections and repairs are therefore necessary to detect and correct such corrosion before it leads to structural failure.
In response to both commenters' statements that all Model DHC-2 airplanes should not be placed in the same category, the FAA has determined that an unsafe condition exists or is likely to exist or develop in other products of the same type design. In this case, the FAA independently reviewed the MCAI and related service information and determined an unsafe condition exists and an AD is needed to address that unsafe condition. Further, it is within the FAA's authority and responsibility to issue ADs to require actions to address unsafe conditions that are not otherwise being addressed (or are not addressed adequately) by routine maintenance procedures.
The FAA has not changed this AD regarding this issue.
One individual commenter requested clarification regarding what operators should do if there are conflicts between the requirements specified in the SNPRM and the requirements of existing ADs for the affected airplanes. The commenter noted that AD 2008-11-11, Amendment 39-15533 (73 FR 34611, June 18, 2008) (AD 2008-11-11) specifies a fluorescent penetrant inspection for cracks in the front spar center section web of the tailplane, while task C55-10-02 in Viking PSM 1-2-5, Revision 1, allows using a fluorescent penetrant or an eddy current inspection, which seems contradictory.
The FAA acknowledges the commenter's concern. The FAA has reviewed all potentially related ADs against the proposed requirements in the SNPRM and determined that other than AD 64-09-03, no other ADs need to be superseded or rescinded. Any other ADs involving inspections for corrosion on the affected airplanes require either inspections for different parts or locations on an airplane or the inspections are not as in-depth or repetitive; therefore, they do not overlap with the inspections required by this AD. This includes the requirements of AD 2008-11-11, which requires inspecting a different airplane part than the part specified in task C55-10-02 of Viking PSM 1-2-5, Revision 1.
The FAA has not changed this AD regarding this issue.
One individual commenter requested that the SNPRM be revised to provide different requirements based on how an airplane is used. The commenter suggested that instead of using a broad approach and including all Model DHC-2 airplanes, the FAA should use a logical evaluation process and consider the following parameters to determine if an airplane's airworthiness might be compromised due to corrosion: operating environment (exposure to saltwater); commercial or private use; stress on the airframe due to repetitive flights with heavy loads; total flight hours on the airframe; airplane history (has it been partially or completely rebuilt); and maintenance history.
The FAA disagrees with the commenter's request to change the SNPRM based on different airplane operational usage. There is no current requirement to track the hours spent flying in different conditions or types of water. Additionally, operators may not know an airplane's entire flight or maintenance history. Without this detailed knowledge of each airplane, it would be impossible for the FAA to develop a special set of inspections based on airplane usage conditions. However, operators may submit a proposal for revised requirements by requesting an alternative method of compliance (AMOC) using the procedures specified in paragraph (i) of this AD.
The FAA has not changed this AD regarding this issue.
One individual commenter requested that the FAA revise the labor rate in the Costs of Compliance section of the SNPRM. The commenter noted that the FAA's estimate of $85 per hour is not accurate and that the current labor rate for an experienced DHC-2/3 airplane mechanic is greater than $110 per hour, depending on where in the United States the work is being performed. The commenter also mentioned that public comments on the NPRM that is related to the SNPRM stated that DHC-2 mechanic rates are $110 to $150 per hour, depending on the geographic regions where the work is being performed. The commenter added that the proposed costs do not consider the current shortage of qualified mechanics able to do the inspections.
The FAA agrees that the labor rate of $85 per work-hour is dated but disagrees with the commenter's estimate of $110 to $150 per hour. The FAA notes that the current wage rate for aviation mechanics as provided by the Bureau of Labor Statistics, found at
Regarding the commenter's statement that the wage rate for DHC-2 mechanics varies geographically, the commenter did not provide any documentation or references to support this statement. Furthermore, unless the distribution of DHC-2 airplanes also varies along the same geography, using an average rate captures the average effect, including any higher wages; therefore, the FAA has not added a geographical adjustment into its assessment.
The FAA acknowledges the commenter's concerns regarding labor shortages, although this does not affect the cost of this final rule.
The FAA has not changed this AD regarding this issue.
These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the SNPRM.
The FAA has previously mandated airworthiness limitations by issuing ADs that require revising the ALS of the existing maintenance manual or instructions for continued airworthiness to incorporate new or revised inspections. This AD, however, requires establishing and incorporating new inspections into the existing maintenance records required by 14 CFR 91.417(a)(2) or 135.439(a)(2) for your airplane. The FAA does not intend this as a substantive change. Requiring incorporation of the new ALS requirements into the existing maintenance records, rather than requiring individual repetitive inspections and replacements, allows operators to record AD compliance once after updating the existing maintenance records, rather than recording compliance after every inspection and part replacement.
The FAA reviewed Viking PSM 1-2-5, Revision 1, which specifies procedures for inspecting locations of the airplane that are particularly susceptible to corrosion-related degradation and includes repetitive inspection intervals, defines the different levels of corrosion, and provides corrective action if corrosion is found.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
The FAA reviewed Viking DHC-2 Beaver Service Bulletin V2/0011, Revision NC, dated November 28, 2019. This service information provides a list of new inspection tasks that have been added to the DHC-2 supplementary inspection and corrosion control program, Viking PSM 1-2-5, Revision 1.
In light of the heavy reliance on aviation for intrastate transportation in Alaska, the FAA has fully considered the effects of this final rule (including costs to be borne by affected operators) from the earliest possible stages of AD development. As previously stated, 14 CFR part 39 requires operators to correct an unsafe condition identified on an airplane to ensure operation of that airplane in an airworthy condition. The FAA has determined that the need to correct corrosion-related degradation in aging aircraft, which could lead to structural failure with consequent loss of control of the airplane, outweighs any impact on aviation in Alaska.
The FAA estimates that this AD affects 409 airplanes of U.S. registry. The FAA also estimates that it will take about 1 work-hour per airplane at a labor rate of $85 per work-hour to revise the existing maintenance records.
Based on these figures, the FAA estimates the cost of this AD on U.S. operators to be $34,765 or $85 per airplane.
The FAA estimates it will take about 1 work-hour to report any Level 2 corrosion found during the initial or subsequent inspections or any Level 3 corrosion found during the initial or subsequent inspections, for an estimated cost of $85 per airplane.
A federal agency may not conduct or sponsor, and a person is not 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 unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The Regulatory Flexibility Act of 1980, Public Law 96-354, 94 Stat. 1164 (5 U.S.C. 601-612) (RFA) establishes as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.
To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
The FAA published an Initial Regulatory Flexibility Analysis (IRFA) for this rule to aid the public in commenting on the potential impacts to small entities. The FAA considered the public comments in developing the final rule and this Final Regulatory Flexibility Analysis (FRFA). A FRFA must contain the following:
(1) A statement of the need for, and objectives of, the rule;
(2) A statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments;
(3) The response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments;
(4) A description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available;
(5) A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and
(6) A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.
The NPRM proposed to supersede AD 64-09-03, which applied to all de Havilland (type certificate now held by Viking) Model DHC-2 “Beaver” airplanes, because after the FAA issued AD 64-09-03, Transport Canada superseded its MCAI to identify specific locations of an airplane that must be inspected to ensure corrosion-related degradation does not result in an unsafe condition. This final rule requires incorporating into the existing maintenance records for your airplane the actions and associated thresholds and intervals, including life limits, specified in a supplemental inspection and corrosion control manual for Model DHC-2 airplanes. This final rule also requires completing all the initial tasks identified in this manual and reporting certain corrosion findings to Viking. The actions in this supplemental inspection and corrosion control manual include the inspection of the aileron balance weight arms required by AD 64-09-03.
The FAA received comments related to costs from three individual commenters. The following presents the significant issues in the comments received on the SNPRM and the FAA's response to each comment.
Two commenters requested that the SNPRM be revised to have different requirements based on how the airplane is used, including but not limited to corrosion level, operating environment (
The FAA disagrees with the commenters' requests to change the SNPRM based on airplane operational usage. There is no current requirement to track the hours spent flying in different conditions or types of water. Additionally, operators may not know an airplane's entire flight or maintenance history. Without this detailed knowledge of each airplane, it would be impossible for the FAA to develop a special set of inspections based on airplane usage conditions. However, operators may submit a proposal for revised requirements by requesting an AMOC using the procedures specified in paragraph (i) of this AD. The FAA has not changed this AD regarding this issue.
One commenter requested that the FAA revise the labor rate in the Costs of Compliance section of the SNPRM. The commenter noted that current labor rates are anywhere from $110 to $150 per hour and added that the proposed costs do not consider the current shortage of qualified mechanics able to do the inspections.
The FAA agrees that the labor rate of $85 per work-hour provided in the SNPRM is dated but disagrees with the provided estimate of $110 to $150 per hour provided by the commenter. The FAA notes that the current wage rate for aviation mechanics as provided by the Bureau of Labor Statistics, found at
The commenter also indicated that the wage rate for DHC-2 mechanics varies geographically but did not provide any documentation or references to support this statement. Furthermore, unless the distribution of DHC-2 airplanes also varies along the same geography, using an average rate captures the average effect, including any higher wages; therefore, the FAA has not added a geographical adjustment into its assessment.
The Chief Counsel for Advocacy of the SBA did not file any comments in response to the SNPRM. Thus, the FAA did not make any changes to this final rule.
The FAA used the definition of small entities in the RFA for this analysis. The RFA defines small entities as small businesses, small governmental jurisdictions, or small organizations. In 5 U.S.C. 601(3), the RFA defines “small business” to have the same meaning as “small business concern” under section 3 of the Small Business Act. The Small Business Act authorizes the SBA to define “small business” by issuing regulations.
SBA (2022) has established size standards for various types of economic activities, or industries, under the North American Industry Classification System (NAICS).
The FAA Civil Aircraft Registry shows 409 Model DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes that will be affected by this AD. These 409 airplanes are registered to 235 private businesses, 76 individuals, and 3 government agencies. The 76 individuals and 3 government agencies are excluded from this analysis as the RFA does not apply to individuals and the 3 government agencies are not small entities as defined by the RFA.
Three hundred nineteen (319) airplanes are owned and operated by 235 private entities. A sample of 50 private businesses was randomly selected for the analysis.
As can be seen, the impacts range from nearly 0%, to a maximum of 0.5%. The average impact is 0.1%, and the median impact rounds to 0.0%. As
The FAA estimates that this AD will take 1 work-hour per airplane at a labor rate of $85 per work-hour to incorporate into the existing maintenance records the actions specified in Parts 2 and 3 of Viking PSM 1-2-5, Revision 1, plus $85 per airplane to report any Level 2 corrosion found during the initial or subsequent inspections or any Level 3 corrosion found during the initial or subsequent inspections, for an estimated total cost of $170 per airplane.
The estimated cost of this AD, per small entity, is shown in the “Cost” column of Table 1 and cost impact is measured by cost as a percentage of revenues. As the table shows, the mean cost impact is 0.1% of annual revenues,
To the extent that small entities provide more unique services or serve markets with less competition, they may also be able to pass on costs in the form of price increases. However, the FAA assumed that none of these small entities would be able to pass these compliance costs to their customers in terms of higher prices. This shows no significant impact on any of the small entities.
As part of the FRFA, the FAA is required to consider regulatory alternatives that may be less burdensome.
The FAA did not find any significant regulatory alternatives to this AD that would accomplish the safety objectives of this AD.
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,
(2) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the RFA.
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 November 6, 2023.
This AD replaces AD 64-09-03, Amendment 718 (29 FR 5390, April 22, 1964).
This AD applies to Viking Air Limited (type certificate previously held by Bombardier Inc. and de Havilland Inc.) Model DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes, all serial numbers, certificated in any category.
Joint Aircraft System Component (JASC) Code 2000, Airframe.
This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as corrosion-related degradation in aging aircraft. The FAA is issuing this AD to detect and address corrosion, which could lead to structural failure with consequent loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 90 days after the effective date of this AD, incorporate into the existing maintenance records required by 14 CFR 91.417(a)(2) or 135.439(a)(2), as applicable for your airplane, the actions and associated thresholds and intervals, including life limits, specified in Parts 2 and 3 of Viking DHC-2 Beaver Supplemental Inspection and Corrosion Control Manual, PSM 1-2-5, Revision 1, dated January 10, 2019 (Viking PSM 1-2-5, Revision 1). Do each initial task within 6 months after the effective date of this AD or at the threshold for each applicable task specified in Part 3 of Viking Product Support Manual PSM 1-2-5, Revision 1, whichever occurs later. Where Viking PSM 1-2-5, Revision 1, specifies contacting Viking for instructions on forward and rear fin attachment bolt replacement, inspection, and installation, and for a disposition regarding attachment bolts, this AD requires contacting the Manager, International Validation Branch, FAA; or Transport Canada; or Viking's Transport Canada Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.
Viking DHC-2 Beaver Service Bulletin V2/0011, Revision NC, dated November 28, 2019, contains additional information related to this AD.
(2) After the action required by paragraph (g)(1) of this AD has been done, no alternative actions and associated thresholds and intervals, including life limits, are allowed unless they are approved as specified in paragraph (i) of this AD.
(1) For inspections done after the effective date of this AD, report to Viking any Level 2 or Level 3 corrosion, as specified in Viking PSM 1-2-5, Revision 1, at the times specified in and in accordance with part 3, paragraph 5, of Viking PSM 1-2-5, Revision 1.
(2) For inspections done before the effective date of this AD, within 30 days after the effective date of this AD, report to Viking any Level 2 or Level 3 corrosion, as specified in Viking PSM 1-2-5, Revision 1, in accordance with part 3, paragraph 5, of Viking PSM 1-2-5, Revision 1.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, mail it to ATTN: Program Manager, Continuing Operational Safety, at the address identified in paragraph (j)(2) of this AD or email to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(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 specifically for this AD by the Manager, International Validation Branch, FAA.
(1) Refer to the MCAI from Transport Canada, AD CF-2019-25, dated July 5, 2019, for related information. This Transport Canada AD may be found in the AD docket at
(2) For more information about this AD, contact James Delisio, Continued Operational Safety Program Manager, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (516) 228-7321; email:
(3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (k)(3) and (4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Viking DHC-2 Beaver Supplemental Inspection and Corrosion Control Manual, PSM 1-2-5, Revision 1, dated January 10, 2019.
(ii) [Reserved]
(3) For service information identified in this AD, contact Viking Air Limited Technical Support, 1959 De Havilland Way, Sidney, British Columbia, Canada, V8L 5V5; phone: (800) 663-8444; fax: (250) 656-0673; email:
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 901 Locust, Kansas City, MO 64106. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email:
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is superseding Airworthiness Directive (AD) 2020-24-04, which applied to all The Boeing Company Model 787-8, 787-9, and 787-10 airplanes. AD 2020-24-04 required revising the existing airplane flight manual (AFM) to incorporate procedures for an approach with a localizer-based navigation aid, monitoring localizer raw data, calling out any significant deviations, and performing an immediate go around under certain conditions. This AD was prompted by the development of a modification to address the previously identified unsafe condition, and the identification of a separate unsafe condition where misleading vertical flight director (FD) guidance can be presented to the flightcrew under certain conditions. This AD continues to require the actions specified in AD 2020-24-04 and requires installing applicable software updates to the flight control module (FCM). Using updated software terminates the retained AFM requirement in this AD. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective November 6, 2023.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 6, 2023.
• For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; website
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available at
Doug Tsuji, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 206-231-3548; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-24-04, Amendment 39-21334 (85 FR 77991, December 3, 2020; corrected December 14, 2020 (85 FR 80589)) (AD 2020-24-04). AD 2020-24-04 applied to all The Boeing Company Model 787-8, 787-9, and 787-10 airplanes. The NPRM published in the
The FAA received comments from the Air Line Pilots Association, International (ALPA), who supported the NPRM without change.
The FAA received additional comments from two commenters, including Boeing and an individual. The following presents the comments received on the NPRM and the FAA's response to each comment.
Boeing requested that the proposed AD be revised to remove line numbers 1062 and 1076 from the applicability. Boeing noted that those airplanes would have the requirements of B787-81205-SB270053-00 RB, Issue 002, dated May 6, 2021, incorporated during production.
The FAA agrees with the intent of the commenter's request. The FAA has added paragraph (j)(2) of this AD to specify that for airplanes on which Common Block Point (CBP) 5.1, 27 FCM Operational Program Software (OPS) part number HNP5A-AL01-5041 or later-approved software part number is installed on FCM-L, FCM-C, and FCM-R during production, the actions specified in paragraph (h) of this AD are not required. Additionally, the FAA has revised paragraph (g) of this AD to apply only to airplanes on which CBP 5.1, 27 FCM OPS part number HNP5A-AL01-5041 or later approved software part number is not installed on FCM-L, FCM-C, and FCM-R. Finally, the FAA has revised paragraph (k) of this AD to specify that installation of CBP 5.1, 27 FCM OPS part number HNP5A-AL01-5041 or later-approved software part number on FCM-L, FCM-C, and FCM-R in production terminates the AFM revision required by paragraph (g) of this AD. Since some airplanes had this software installed during production, the FAA has determined that revision of the existing AFM required by paragraph (g) of this AD is not applicable to those airplanes.
An individual requested that the FAA clarify whether accomplishing the actions in Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 001, dated February 19, 2021, terminates the AFM revision required by paragraph (g) of the proposed AD. The commenter noted that paragraph (l)(1) of the proposed AD provides credit for previous accomplishment of Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 001, dated February 19, 2021, but does not specify whether that credit extends to the terminating actions specified in paragraph (k) of the proposed AD.
The FAA agrees to clarify. The FAA has revised paragraph (l)(1) of this AD to specify that the credit applies to the actions in both paragraphs (h) and (k) of this AD. Therefore, accomplishing the actions in Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 001, dated February 19, 2021, terminates the AFM revision required by paragraph (g) of the proposed AD, provided the software update has been installed on all affected airplanes in an operator's fleet.
The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
The FAA reviewed Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 002, dated May 6, 2021. This service information specifies procedures for updating flight control electronics (FCE) software to install CBP 5.1 OPS having part number HNP5A-AL01-5041 in the FCM, and doing a software configuration check.
Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 002, dated May 6, 2021, specifies prior or concurrent accomplishment of Boeing Alert Service Bulletin B787-81205-SB270044-00, Issue 003, dated
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
The FAA estimates that this AD affects 214 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA has determined that updating the software requires installing up to 8 software loads, at $300 per load, per operator. For the parts cost, the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the FAA estimates the total cost for software to be $2,400 per operator.
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil 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,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective November 6, 2023.
This AD replaces AD 2020-24-04, Amendment 39-21334 (85 FR 77991, December 3, 2020; corrected December 14, 2020 (85 FR 80589)) (AD 2020-24-04).
This AD applies to all The Boeing Company Model 787-8, 787-9, and 787-10 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 22, Auto flight.
This AD was prompted by reports indicating that the autopilot flight director system (AFDS) failed to transition to the instrument landing system localizer (LOC) beam after the consistent localizer capture function in the flight control modules initiated a transition to capture LOC during approach. The FAA is issuing this AD to address the AFDS failing to transition, which could result in localizer overshoot leading to glideslope descent on the wrong heading. Combined with a lack of flight deck effects for a consistent localizer capture mode failure, this condition could result in a controlled flight into terrain (CFIT). This AD was further prompted by reports of misleading vertical flight director guidance that in certain scenarios can be presented to the flightcrew during approach and could lead to CFIT or a runway overrun.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2020-24-04, with new terminating action and revised affected airplanes. For airplanes on which Common Block Point (CBP) 5.1, 27 Flight Control Module (FCM) Operational Program Software (OPS) part number HNP5A-AL01-5041 or later approved software part number is not installed on FCM-L, FCM-C, and FCM-R: Within 14 days after December 18, 2020 (the effective date of AD 2020-24-04), revise the Operating Procedures chapter of the existing AFM and applicable corresponding operational procedures to incorporate the procedures specified in figure 1 to paragraph (g) of this AD. Revising the existing AFM to include the changes specified in paragraph (g) of this AD may be done by inserting a
For airplanes identified in paragraph A, “Effectivity,” of Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 002, dated May 6, 2021: Except as specified by paragraph (j) of this AD, at the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 002, dated May 6, 2021, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 002, dated May 6, 2021.
Guidance for accomplishing the actions required by paragraph (h) of this AD can be found in Boeing Alert Service Bulletin B787-81205-SB270053-00, Issue 002, dated May 6, 2021, which is referred to in Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 002, dated May 6, 2021.
For airplanes identified as Group 1, Configuration 1, and as Group 2, Configuration 1, in paragraph A, “Effectivity,” of Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 002, dated May 6, 2021: Prior to or concurrently with accomplishing the actions required by paragraph (h) of this AD, do all applicable actions identified as “RC” (required for compliance) in, and in accordance with, the applicable service information identified in paragraphs (i)(1) and (2) of this AD.
(1) Boeing Alert Service Bulletin B787-81205-SB270044-00, Issue 003, dated July 7, 2020.
(2) Boeing Service Bulletin B787-81205-SB270046-00, Issue 002, dated October 24, 2019.
(1) Where the Compliance Time columns of the tables in the “Compliance” paragraph of Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 002, dated May 6, 2021, use the phrase “the Issue 001 date of the Requirements Bulletin B787-81205-SB270053-00 RB,” this AD requires using “the effective date of this AD.”
(2) For airplanes on which CBP 5.1, 27 FCM OPS part number HNP5A-AL01-5041 or later-approved software part number was installed on FCM-L, FCM-C, and FCM-R in production, the actions specified in paragraph (h) of this AD are not required.
Installation of the software update specified in the Accomplishment Instructions of Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 002, dated May 6, 2021, or installation of CBP 5.1, 27 FCM OPS part number HNP5A-AL01-5041 or later-approved software part number on FCM-L, FCM-C, and FCM-R in production, terminates the AFM revision required by paragraph (g) of this AD, and the AFM revision may be removed, provided that this software update has been installed on all affected airplanes in an operator's fleet.
(1) This paragraph provides credit for the actions specified in paragraphs (h) and (k) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 001, dated February 19, 2021.
(2) This paragraph provides credit for the actions specified in paragraph (i)(1) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin B787-81205-SB270044-00, Issue 001, dated December 18, 2018; or Boeing Alert Service Bulletin B787-81205-SB270044-00, Issue 002, dated November 20, 2019.
(3) This paragraph provides credit for the actions specified in paragraph (i)(2) of this AD, if those actions were performed before the effective date of this AD using Boeing Service Bulletin B787-81205-SB270046-00, Issue 001, dated November 30, 2018.
(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 (n)(1) 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.
(4) AMOCs approved for AD 2020-24-04 are approved as AMOCs for the corresponding provisions of paragraph (g) of this AD.
(5) Except as specified by paragraph (j) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (m)(5)(i) and (ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition
(1) For more information about this AD, contact Doug Tsuji, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (o)(3) and (4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Service Bulletin B787-81205-SB270044-00, Issue 003, dated July 7, 2020.
(ii) Boeing Service Bulletin B787-81205-SB270046-00, Issue 002, dated October 24, 2019.
(iii) Boeing Alert Requirements Bulletin B787-81205-SB270053-00 RB, Issue 002, dated May 6, 2021.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; website
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is superseding Airworthiness Directive (AD) 2017-19-22 for all British Aerospace Regional Aircraft Jetstream Series 3101 and Jetstream Model 3201 airplanes. AD 2017-19-22 required incorporating BAE Systems' Corrosion Prevention and Control program into the Airworthiness Limitations Section (ALS) of the existing instructions for continued airworthiness (ICA) for your airplane, which added new and more restrictive inspections for corrosion that include inspecting the door hinges/supporting structure and attachment bolts for the main spar joint and engine support, and the rudder hinge location on the vertical stabilizer, and applicable corrective actions. Since the FAA issued AD 2017-19-22, the Civil Aviation Authority (CAA) of the United Kingdom (UK) superseded the mandatory continuing airworthiness information (MCAI) issued by the European Aviation Safety Agency (now European Union Aviation Safety Agency) (EASA) to correct an unsafe condition on these products. This AD requires revising the ALS of the existing ICA for your airplane. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective November 6, 2023.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 6, 2023.
• For service information identified in this final rule, contact BAE Systems (Operations) Ltd., Customer Information Department, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland, United Kingdom; phone: +44 3300 488727; fax: +44 1292 675704; email:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 901 Locust, Kansas City, MO 64106. For information on the availability of this material at the FAA, call (817) 222-5110. It is also available at
Doug Rudolph, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Westbury, NY 11590; phone: (816) 329-4059; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2017-19-22, Amendment 39-19052 (82 FR 44502, September 25, 2017) (AD 2017-19-22). AD 2017-19-22 applied to all British Aerospace Regional Aircraft Jetstream Series 3101 and Jetstream Model 3201 airplanes. AD 2017-19-22 required incorporating new revisions to the ALS of the existing ICA for your airplane to incorporate new and more restrictive inspections for corrosion, which include inspecting the door hinges/supporting structure and attachment bolts of the main spar joint and engine support, and the hinge location on the vertical stabilizer, and repair or replacement, as applicable. The FAA issued AD 2017-19-22 to address corrosion on the rudder upper hinge bracket and internal wing, areas of the passenger/crew door hinges and supporting structure, the main spar joint, and the engine support attachment bolts, which could lead to reduced structural integrity with consequent loss of control.
The NPRM published in the
You may examine the MCAI in the AD docket at
In the NPRM, the FAA proposed to require revising the ALS of the existing
The FAA is issuing this AD to address corrosion on the rudder tab hinges, fuselage skin beneath the marker beacon antenna external doubler, and fuselage skin beneath the static vent external doubler. The unsafe condition, if not addressed, could lead to reduced structural integrity of the affected parts with consequent loss of control of the airplane.
The FAA received no comments on the NPRM or on the determination of the costs.
These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.
The FAA reviewed BAE Systems CPCP Manual JS/CPCP/01, Revision 9. This service information specifies procedures for a comprehensive corrosion prevention and control program.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
The MCAI applies to Model Jetstream Series 3100 and Jetstream Series 3200 airplanes, which are identified on the FAA type certificates as Jetstream Model 3101 and Jetstream Model 3201 airplanes, respectively.
The MCAI specifies contacting BAE for approved corrective actions instructions and this AD requires, for certain corrective actions, contacting the Manager, International Validation Branch, FAA; UK CAA; British Aerospace (Operations) Limited's Design Organization Approval (DOA) (for Jetstream Series 3101); or British Aerospace Regional Aircraft's DOA (for Jetstream Model 3201) for approved corrective action instructions and accomplishing those instructions accordingly. If approved by the DOA, the approval must include the DOA-authorized signature.
The MCAI requires revising the existing aircraft maintenance program (AMP) to introduce the actions specified in BAE Systems CPCP Manual JS/CPCP/01, Revision 9. After the AMP is revised, the MCAI does not require recording AD compliance on a continued basis each time an action in the revised AMP is performed. The AMP is not required for U.S. operators for the affected airplanes; however, this AD requires incorporating BAE Systems CPCP Manual JS/CPCP/01, Revision 9, into the ALS of the existing ICA for your airplane, which has the same intended result as revising the AMP of not needing to record compliance with the AD each time an individual action is accomplished.
The MCAI requires doing all actions in BAE Systems CPCP Manual JS/CPCP/01, Revision 9, from the effective date of UK CAA AD G-2022-0021 and this AD requires doing all actions in BAE Systems CPCP Manual JS/CPCP/01, Revision 9, at the compliance times specified in that manual or within 12 months after the effective date of this AD, whichever occurs later, except for the actions identified in paragraph (g)(3) of this AD.
BAE Systems CPCP Manual JS/CPCP/01, Revision 9 specifies reporting of Level 2 and Level 3 corrosion, and this AD does not.
The FAA estimates that this AD affects 42 airplanes of U.S. registry.
The FAA estimates the following costs to comply with this AD:
The scope of damage found while performing the actions specified in BAE Systems CPCP Manual JS/CPCP/01, Revision 9, could vary significantly from airplane to airplane. The FAA has no data to determine the costs to repair or replace damaged parts on each airplane or the number of airplanes that may require repair.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA has determined that 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,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative,
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 November 6, 2023.
This AD replaces AD 2017-19-22, Amendment 39-19052 (82 FR 44502, September 25, 2017).
This AD applies to British Aerospace (Operations) Limited Model Jetstream Model 3101 airplanes and British Aerospace Regional Aircraft Model Jetstream Model 3201 airplanes, all serial numbers, certificated in any category.
Joint Aircraft System Component (JASC) Code 2721, Rudder Tab Control System; 5330, Fuselage Main, Plate/Skin.
This AD was prompted by reports of corrosion on the rudder tab hinges, fuselage skin beneath the marker beacon antenna external doubler, and fuselage skin beneath the static vent external doubler. The FAA is issuing this AD to detect and correct corrosion on the rudder tab hinges, fuselage skin beneath the marker beacon antenna external doubler, and fuselage skin beneath the static vent external doubler. The unsafe condition, if not addressed, could lead to reduced structural integrity of the affected parts with consequent loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Before further flight after the effective date of this AD, revise the Airworthiness Limitations Section of the existing instructions for continued airworthiness for your approved maintenance or inspection program, as applicable, by incorporating the actions and associated thresholds and intervals, including life limits, specified in BAE Systems Jetstream Series 3100 & 3200 Corrosion Prevention and Control Programme, Manual Ref: JS/CPCP/01, Revision 9, dated April 15, 2022 (BAE Systems CPCP Manual JS/CPCP/01, Revision 9).
(2) The actions required by paragraph (g)(1) of this AD may be performed by the owner/operator (pilot) holding at least a private pilot certificate and must be entered into the aircraft records showing compliance with this AD in accordance with 14 CFR 43.9(a) and 14 CFR 91.417(a)(2)(v). The record must be maintained as required by 14 CFR 91.417, 121.380, or 135.439.
(3) Do all the actions in BAE Systems CPCP Manual JS/CPCP/01, Revision 9, as follows:
(i) For all tasks other than 130/EX/01 C3, 140/EX/01 C2, 150/EX/01 C2, 150/EX/01 C3, 150/EX/01 C4, and 200/EX/01 C3: At the compliance times specified in BAE Systems CPCP Manual JS/CPCP/01, Revision 9, or within 12 months after the effective date of this AD, whichever occurs later.
(ii) For tasks 130/EX/01 C3, 140/EX/01 C2, 150/EX/01 C2, 150/EX/01 C3, 150/EX/01 C4, and 200/EX/01 C3: Within 12 months after the effective date of this AD.
(4) If any discrepancy, as identified in BAE Systems CPCP Manual JS/CPCP/01, Revision 9, is found during any inspection or task required by paragraph (g)(3) of this AD, repair or replace, as applicable, all damaged structural parts and components and do the maintenance procedures for corrective action in accordance with and at the compliance time specified in BAE Systems CPCP Manual JS/CPCP/01, Revision 9, except reporting Level 2 and Level 3 corrosion and reporting cracks or other structural defects are not required. If no compliance time is defined, do the applicable corrective action before further flight.
(5) If during any inspection or task required by paragraph (g)(3) of this AD, any discrepancy is found that is not identified in paragraph (g)(4) of this AD or is beyond the repairable limits specified in paragraph (g)(4) of this AD, before further flight, contact either the Manager, International Validation Branch, FAA; Civil Aviation Authority (CAA) of the United Kingdom (UK); British Aerospace (Operations) Limited's Design Organization Approval (DOA) (for Jetstream Series 3101); or British Aerospace Regional Aircraft's DOA (for Jetstream Model 3201) for approved corrective action instructions and accomplish those instructions accordingly. If approved by the DOA, the approval must include the DOA-authorized signature.
After the action required by paragraph (g)(1) of this AD has been done, no alternative actions and associated thresholds and intervals, including life limits, are allowed unless they are approved as specified in paragraph (i) of this AD.
The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, mail it to the address identified in paragraph (j)(2) of this AD or email to:
(1) Refer to UK CAA AD G-2022-0021, dated December 21, 2022, for related information. This UK CAA AD may be found in the AD docket at
(2) For more information about this AD, contact Doug Rudolph, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Westbury, NY 11590; phone: (816) 329-4059; email:
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) BAE Systems Jetstream Series 3100 & 3200 Corrosion Prevention and Control Programme, Manual Ref: JS/CPCP/01, Revision 9, dated April 15, 2022.
(ii) [Reserved]
(3) For service information identified in this AD, contact BAE Systems (Operations) Ltd., Customer Information Department, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland, United Kingdom; phone: +44 3300 488727; fax: +44 1292 675704; email:
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 901 Locust, Kansas City, MO 64106. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA,
Department of State.
Final rule; request for comment.
The Department of State (“Department”) finalizes regulations regarding the publication, coordination, and reporting of international agreements. Section 5947 of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 made changes regarding the reporting to Congress and publication of the texts of international agreements and related information. The amendments include changes to the scope and deadlines associated with requirements to report international agreements and related information to Congress, and to publish the texts of international agreements in the Treaties and Other International Acts Series (TIAS). These amendments are intended to reflect and to implement the recently enacted changes to the reporting process.
Interested parties may submit comments to the Department by any of the following methods:
•
•
• All comments should include the commenter's name, the organization the commenter represents, if applicable, and the commenter's address. If the Department is unable to read your comment for any reason, and cannot contact you for clarification, the Department may not be able to consider your comment. After the conclusion of the comment period, the Department will publish a final rule (in which it will address relevant comments) as expeditiously as possible.
Michael Mattler, Assistant Legal Adviser for Treaty Affairs, Office of the Legal Adviser, Department of State, Washington, DC 20520, (202) 647-1345, or at
The Department of State is implementing amendments to 22 CFR part 181 to reflect the enactment of Section 5947 of the National Defense Authorization Act for Fiscal Year (FY) 2023 (Pub. L. 117-263) (“the NDAA”). Section 5947 amends 1 U.S.C. 112a and 1 U.S.C. 112b, known as the Case-Zablocki Act, regarding the publication, coordination, and reporting to Congress of international agreements.
Section 5947 expands the application of the Case-Zablocki Act's reporting and publication requirements to include “qualifying non-binding” instruments as defined in the statute. To implement these changes, the rule adds two new sections to 22 CFR part 181: one establishing criteria that will apply to the identification of qualifying non-binding instruments (Section 181.4) and one regarding the process the Department of State will follow for assessing whether particular non-binding instruments constitute “qualifying non-binding instruments” within the meaning of the statute (Section 181.5). These sections follow the form and structure of existing Sections 181.2 and 181.3 which establish comparable criteria and procedures regarding the identification of international agreements.
In accordance with 1 U.S.C. 112b(k)(5), among the elements for determining whether a non-binding instrument is a “qualifying non-binding instrument” for the purposes of the statute is whether the instrument “could reasonably be expected to have a significant impact on the foreign policy of the United States.” Amended 22 CFR 181.3(b)(3) establishes factors for consideration when assessing the significance of a non-binding instrument on the foreign policy of the United States. These factors reflect considerations cited by the Congressional sponsors of section 5947 in connection with Congress's consideration of the legislation. These factors include whether, and to what extent, the instrument is of importance to the United States' relationship with another country, such as by addressing a significant new policy or initiative (rather than ongoing activities or cooperation); affects the rights or responsibilities of U.S. citizens, U.S. nationals, or individuals in the United States; impacts State laws; has budgetary or appropriations impact; requires changes to U.S. law to satisfy commitments made therein; presents a new commitment or risk for the entire Nation; and is of Congressional or public interest.
The procedures set out in 22 CFR 181.4(b) for assessing whether particular non-binding instruments could reasonably be expected to have a significant impact on the foreign policy of the United States provide for such assessments to be made in the first instance by the State Department bureau for instruments negotiated by the Department of State or the U.S. Government agency responsible for negotiating the instrument. On a monthly basis a list of instruments identified by State Department bureaus and U.S. Government agencies as reasonably expected to have a significant impact on the foreign policy of the United States will be submitted to the Under Secretary of State for Political Affairs for approval for transmittal to the Congress in accordance with the Case-Zablocki Act.
Amendments to 22 CFR 181.6 update the procedures by which U.S. Government agencies consult with the Secretary of State regarding international agreements proposed for negotiation or conclusion to reflect developments in practice and technical clarifications since 22 CFR 181.6 was last updated. Amendments to this section also reflect recommendations from the Government Accountability Office designed to facilitate the identification and monitoring of international agreements containing fiscal contingencies that could give rise to future financial losses or other costs for the United States or U.S. Government agencies in amounts that could be material for the purposes of reporting on annual financial statements.
Amendments to 22 CFR 181.7 consolidate in a single section guidance previously contained in other sections of the regulations regarding transmittal by U.S. Government agencies to the Department of State of international agreements and related material. They also include new guidance on the transmittal of qualifying non-binding instruments and related material to reflect new requirements contained in section 5947 of NDAA 2023, as well as
Amendments to 22 CFR 181.8 implement changes made by Section 5947 in the categories of information required to be transmitted to the Congress related to international agreements and qualifying non-binding instruments. The new provisions are drawn from the text of the relevant statutory requirements.
Amendments to 22 CFR 181.9 implement changes made by section 5947 of NDAA 2023 regarding requirements for the publication of international agreements. They reflect new requirements to publish the texts of qualifying non-binding instruments as well as information regarding legal authorities relied upon to enter into international agreements and qualifying non-binding instruments, and any new legislative or regulatory authorities needed to implement such agreements and instruments. Amendments to this section also reflect changes made by section 5947 to categories of international agreements that are exempt from requirements to be published and to deadlines for publication. The amended language in this section is drawn from the text of section 5947.
The Department is issuing this rule as a final rule, asserting the “good cause” exemption to the Administrative Procedure Act (5 U.S.C. 553(b)). The Department finds that public comment would be impractical prior to the effective date of this rulemaking, given the short deadline provided by Congress to implement this rule, and the imminent effective date of the statute itself. See
This rulemaking is hereby certified as not expected to have a significant impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act, 5 U.S.C. 601
This rulemaking does not constitute a major rule, as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking.
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure nor would it significantly or uniquely affect small governments.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of national government. Nor will the regulations have federalism implications warranting the application of Executive Orders 12372 and 13132. This rule will not have tribal implications, will not impose costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.
This rule has been drafted in accordance with the principles of Executive Order 12866, as amended by Executive Order 14094, and 13563. The rulemaking is mandated by a Congressional statute; therefore, Congress determined that the benefits of this rulemaking outweigh the costs. This rule has been determined to be a significant rulemaking under section 3 of Executive Order 12866, but not economically significant.
This rule has been reviewed in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Treaties.
1 U.S.C. 112a, 112b; and 22 U.S.C. 2651a.
(a) The purpose of this part is to implement the provisions of 1 U.S.C. 112b, popularly known as the Case-Zablocki Act (hereinafter “the Act”), on the reporting to Congress and publication of international agreements and qualifying non-binding instruments and related coordination with the Secretary of State. This part applies to all agencies of the U.S. Government whose responsibilities include the negotiation and conclusion of international agreements and qualifying non-binding instruments. This part does not, however, constitute a delegation by the Secretary of State of the authority to engage in such activities. Further, it does not affect any additional requirements of law governing the relationship between particular agencies and the Secretary of State in connection with international negotiations and agreements, or any other requirements
(b) Pursuant to the key legal requirements of the Act—full and timely disclosure to the Congress of all concluded international agreements and qualifying non-binding instruments, publication of international agreements and qualifying non-binding instruments, and consultation by agencies with the Secretary of State with respect to proposed international agreements—every agency of the U.S. Government is required to comply with each of the provisions set out in this part in implementation of the Act. Nevertheless, this part is intended as a framework of measures and procedures which, it is recognized, cannot anticipate all circumstances or situations that may arise. Deviation or derogation from the provisions of this part will not affect the legal validity, under United States law or under international law, of international agreements concluded, will not give rise to a cause of action, and will not affect any public or private rights established by such agreements, Similarly, any such deviation will not affect the status or effectiveness of any non-binding instrument.
(c) To facilitate coordination with the Department of State in the implementation of the Act, agencies whose responsibilities include the negotiation and conclusion of international agreements or qualifying non-binding instruments shall notify the Department of State of the official designated as the agency's Chief International Agreements Officer in accordance with 1 U.S.C. 112b(e) promptly upon that official's designation, and shall promptly inform the Department of any changes in the official designated.
(d) For the Department of State, the Deputy Legal Adviser with supervisory responsibility over the Office of Treaty Affairs will be designated as the Department's Chief International Agreements Officer in accordance with 1 U.S.C. 112b(e), and will have the title of International Agreements Compliance Officer.
(a)
(1)
(2)
(i) Are of political significance;
(ii) Involve substantial grants of funds or loans by the United States or credits payable to the United States;
(iii) Constitute a substantial commitment of funds that extends beyond a fiscal year or would be a basis for requesting new appropriations;
(iv) Involve continuing and/or substantial cooperation in the conduct of a particular program or activity, such as scientific, technical, or other cooperation, including the exchange or receipt of information and its treatment, or the pooling of data. However, individual research grants and contracts do not ordinarily constitute international agreements.
(3)
(4)
(5)
(b)
(c)
(2) Although the considerations discussed in this paragraph generally are to be applied to determine whether an implementing agreement is itself an international agreement within the meaning of the Act, the Act specifies some circumstances in which an implementing agreement may be subject to the requirements of the Act for reasons independent of the considerations in this paragraph. For example, the Act defines the “text” of an international agreement to include “any implementing agreement or arrangement . . . that is entered into contemporaneously and in conjunction with the international agreement,” and further provides, subject to some exceptions, that the Secretary shall submit to specified members of Congress the text of implementing agreements not otherwise covered by the Act not later than 30 days after receipt of a request from the Chair or Ranking Member of the Senate Foreign Relations Committee or the House Foreign Affairs Committee for the text of such implementing agreements.
(d)
(e)
(a) Whether any undertaking, document, or set of documents constitutes or would constitute an international agreement within the meaning of the Act shall be determined by the Legal Adviser of the Department of State, a Deputy Legal Adviser, or in most cases the Assistant Legal Adviser for Treaty Affairs. Such determinations shall be made either on a case-by-case basis, or on periodic consultation, as appropriate.
(b) Agencies whose responsibilities include the negotiation and conclusion of international agreements are responsible for transmitting to the Assistant Legal Adviser for Treaty Affairs, for decision pursuant to paragraph (a) of this section, the text, as defined in § 181.10, of any document or set of documents that might constitute an international agreement. The transmittal shall be made prior to or simultaneously with the request for consultations with the Secretary of State required by subsection (g) of the Act and § 181.6.
(c) Agencies to which paragraph (b) of this section applies shall consult periodically with the Assistant Legal Adviser for Treaty Affairs in order to determine which categories of arrangements for which they are responsible are likely to be international agreements within the meaning of the Act.
(a) General. Pursuant to 1 U.S.C. 112b(k)(5), a qualifying non-binding instrument is a non-binding instrument that:
(1) Is or will be under negotiation, is signed or otherwise becomes operative, or is implemented with one or more foreign governments, international organizations, or foreign entities, including non-state actors; and
(2)(i) Could reasonably be expected to have a significant impact on the foreign policy of the United States; or
(ii) Is the subject of a written communication from the Chair or Ranking Member of the Committee on Foreign Relations of the Senate or the Committee on Foreign Affairs of the House of Representatives to the Secretary.
(3) Consistent with 1 U.S.C. 112b(k)(5)(B), any non-binding instrument that is signed or otherwise becomes operative or is implemented pursuant to the authorities relied upon by the Department of Defense, the Armed Forces of the United States, or any element of the intelligence community does not constitute a qualifying non-binding instrument.
(4) As outlined in further detail in this part, requirements under 1 U.S.C. 112b
(b)
(1)
(2)
(3)
(A) Is of importance to the United States' relationship with another country, such as by addressing a significant new policy or initiative (rather than ongoing activities or cooperation);
(B) Affects the rights or responsibilities of U.S. citizens, U.S. nationals, or individuals in the United States;
(C) Impacts State laws;
(D) Has budgetary or appropriations impact;
(E) Requires changes to U.S. law to satisfy commitments made therein;
(F) Presents a new commitment or risk for the entire Nation); and
(G) Is of Congressional or public interest.
(ii) In applying these criteria, neither the form or structure of the instrument nor the number of participants involved shall be determinative of whether the instrument meets the significance standard. Similarly, neither the duration of the activities pursuant to the instrument nor the duration of the instrument itself shall be determinative of whether the instrument meets the standard. An instrument that is technical in nature could meet the standard if, for example, it was of particular importance to a bilateral relationship, or if it satisfied other of the criteria set out in this section.
(iii) In the context of these considerations, non-binding instruments concluded as part of the regular work of international organizations and fora such as the United Nations and its specialized agencies, the G-20, and similar multilateral or regional groupings and that are made public within 30 days of their conclusion in most instances will not be submitted to Congress pursuant to 1 U.S.C. 112b(k)(5)(A)(ii)(I). Similarly, instruments memorializing general outcomes of meetings between senior U.S. officials and foreign counterparts and that are made public within 30 days of their conclusion in most instances will not be submitted to Congress pursuant to 1 U.S.C. 112b(k)(5)(A)(ii)(I).
(iv) In the context of these criteria, non-binding instruments concluded for the purposes of facilitating routine sharing of information (including personally identifiable information of U.S. citizens, U.S. nationals, or other individuals in the United States) in a manner authorized by U.S. law for the purposes of law enforcement cooperation, will not, on that basis alone, be regarded as expected to have a significant impact on the foreign policy of the United States.
(c) Non-binding instruments requested by Congress. In accordance with section 112b(k)(5)(A)(ii)(II) of the Act, and except for instruments referred to in section 112b(k)(5)(B) of the Act, a non-binding instrument that is the subject of a written communication from the Chair or Ranking Member of either of the appropriate congressional committees defined in the Act as the Senate Committee on Foreign Relations and the House Committee on Foreign Affairs, to the Secretary is a qualifying non-binding instrument.
(a)
(b)
(2) As provided in § 181.7(a)(2), Department of State bureaus whose responsibilities include the negotiation of non-binding instruments, or the oversight of negotiation of non-binding instruments by posts abroad, shall notify the Bureau of Legislative Affairs and the Office of the Assistant Legal Adviser for Treaty Affairs within 15 days of the signature, conclusion, or other finalization of a qualifying non-binding instrument that they have identified as one that could reasonably be expected to have a significant impact on the foreign policy of the United States. Bureaus shall also indicate whether the instrument has already been published, or whether it is anticipated to be published, either on the website of the Department of State or by a depositary or other similar administrative body.
(3) As provided in § 181.7(a)(2), agencies whose responsibilities include the negotiation and conclusion of non-binding instruments shall transmit to the Department via a memorandum addressed to the Department's Executive Secretary the text of any qualifying non-binding instrument that they, applying the criteria in § 181.4(b), determine could reasonably be expected to have a
(4) On a monthly basis, the Bureau of Legislative Affairs and the Office of the Assistant Legal Adviser for Treaty Affairs shall compile a list of qualifying non-binding instruments received in accordance with paragraphs (b)(2) and (3) of this section and shall submit the list to the Under Secretary of State for Political Affairs for his or her approval for transmittal to the Congress in accordance with the procedures set out in § 181.8.
(5) State Department bureaus and U.S. Government agencies are encouraged to identify qualifying non-binding instruments that could reasonably be expected to have a significant impact on the foreign policy of the United States at the earliest possible stage during the negotiating process and to advise of their expected conclusion in advance of the deadlines specified in paragraphs (b)(2) and (3) of this section, in order to facilitate timely compliance with the Act.
(c)
(a) The Secretary of State is responsible, on behalf of the President, for ensuring that all proposed international agreements of the United States are fully consistent with United States foreign policy objectives. In accordance with 1 U.S.C. 112b(g), no agency of the U.S. Government may sign or otherwise conclude an international agreement, whether entered into in the name of the U.S. Government or in the name of the agency, without prior consultation with the Secretary of State or the Secretary's designee. At an early stage in the development and negotiation of non-binding instruments, agencies should also consult as appropriate with the Department of State to facilitate identification at an early stage of instruments that may constitute qualifying non-binding instruments for the purposes of the Act, and to ensure that the intended non-binding character of such instruments is appropriately reflected in their drafting. . .
(b) Consultation with the Secretary of State (or the Secretary's designee) regarding proposed international agreements, including to obtain authority to negotiate or conclude an international agreement, shall be done pursuant to Department of State procedures set out in Volume 11, Foreign Affairs Manual, Chapter 700 (Circular 175 procedure). Officers of the Department of State shall be responsible for the preparation of all documents required by the Circular 175 procedure.
(c) Any agency wishing to commence negotiations for a proposed international agreement or to conclude an international agreement shall transmit to the interested bureau or office in the Department of State, or to the Office of the Legal Adviser, for consultation pursuant to this section, the following:
(1) A draft text of the proposed agreement or a detailed summary of the proposed agreement if the text is not available (where authority to negotiate a proposed agreement is sought) or the text of the agreement proposed to be concluded (where authority to conclude an agreement is sought).
(2) A detailed description of the Constitutional, statutory, or treaty authority proposed to be relied upon to negotiate or to conclude the agreement. If multiple authorities are relied upon, all such authorities shall be cited. All citations to the Constitution of the United States, a treaty, or a statute shall include the specific article or section and subsection reference whenever available and, if not available, shall be as specific as possible. If the authority relied upon is or includes article II of the Constitution of the United States, the basis for that reliance shall be explained.
(3) Other relevant background information, including:
(i) If a proposed agreement embodies a commitment to furnish funds, goods, or services that are beyond or in addition to those authorized in an approved budget, the agency proposing the agreement shall state what arrangements have been planned or carried out concerning consultation with the Office of Management and Budget for such commitment. The Department of State should receive confirmation that the relevant budget approved by the President provides or requests funds adequate to fulfill the proposed commitment, or that the President has made a determination to seek the required funds.
(ii) If a proposed agreement embodies a commitment that could reasonably be expected to require (for its implementation) the issuance of a significant regulatory action (as defined in section 3 of Executive Order 12866), the agency proposing the agreement shall state what arrangements have been planned or carried out concerning timely consultation with the Office of Management and Budget (OMB) for such commitment. The Department of State should receive confirmation that OMB has been consulted in a timely manner concerning the proposed commitment.
(iii) If a proposed agreement contains fiscal contingencies that could give rise to material future financial losses or other costs for the United States (or an agency thereof), the agency proposing the agreement shall identify the contingency and indicate what arrangements have been planned for monitoring the contingency and for meeting any expenses that may arise from it.
(d) The Department of State will endeavor to complete the consultation process in respect of a proposed international agreement in most cases within 30 days of receipt of a request for consultation pursuant to this section and of the information specified in paragraph (c) of this section. The negotiation or conclusion (as the case may be) of a proposed international agreement may not be undertaken prior to the completion of the consultation process.
(e) Consultation may encompass a specific class of agreements rather than a particular agreement where a series of agreements of the same general type is contemplated; that is, where a number of agreements are to be negotiated according to a more or less standard formula, such as, for example, Public Law 480 Agricultural Commodities Agreements. Any agency wishing to conclude a particular agreement within a specific class of agreements about which consultations have previously been held pursuant to this section shall transmit a draft text of the proposed agreement to the Office of the Legal
(f) The consultation requirement shall be deemed to be satisfied with respect to proposed international agreements of the United States about which the Secretary of State (or the Secretary's designee) has been consulted in the Secretary's capacity as a member of an interagency committee or council established for the purpose of approving such proposed agreements. Such consultation should encompass both policy and legal issues associated with the proposed agreement. Designees of the Secretary of State serving on any such interagency committee or council are to provide as soon as possible to the interested offices or bureaus of the Department of State and to the Office of the Legal Adviser copies of draft texts or summaries of such proposed agreements and other background information as requested.
(g) Before an international agreement containing a foreign language text may be signed or otherwise concluded, a signed memorandum must be obtained from a responsible language officer of the Department of State or of the U.S. Government agency concerned certifying that the foreign language text and the English language text are in conformity with each other and that both texts have the same meaning in all substantive respects. The signed memorandum is to be made available to the Department of State upon request.
(a) This rule, which is required by section 112b(d) of the Act, is essential for purposes of permitting the Department of State to meet its obligations under the Act to transmit concluded international agreements and qualifying non-binding instruments to the Congress by the end of the month following their conclusion, and to report on international agreements and qualifying non-binding instruments that entered into force or became operative by the end of the month following the date on which they entered into force or became operative.
(1) International agreements. Any agency, including the Department of State, that concludes an international agreement within the meaning of the Act, whether entered into in the name of the U.S. Government or in the name of the agency, must transmit the following documents and certification to the Office of the Assistant Legal Adviser for Treaty Affairs at the Department of State in accordance with the procedures set out in Volume 11, Foreign Affairs Manual, Chapter 700, as soon as possible and in no event to arrive at that office later than fifteen (15) days after the date the agreement is signed or otherwise concluded:
(i) Signed or initialed original texts constituting the agreement, together with all accompanying papers, including any annex, appendix, codicil, side agreement, side letter, or any document of similar purpose or function to the aforementioned regardless of the title of the document that is entered into contemporaneously and in conjunction with the agreement, and any implementing agreements or arrangements or any document of similar purpose or function to the aforementioned regardless of the title of the document that is entered into contemporaneously and in conjunction with the agreement. (See § 181.10.) The texts transmitted must be accurate, legible, and complete, and must include the texts of all languages in which the international agreement was signed, or initialed;
(A) Where the original texts of concluded international agreements are not available, certified copies must be transmitted in the same manner as original texts. A certified copy must be an exact copy of the signed original.
(B) When an exchange of diplomatic notes between the United States and a foreign government constitutes an international agreement or has the effect of extending, modifying, or terminating an international agreement, a properly certified copy of the note from the United States to the foreign government, and the signed original or the note from the foreign government to the United States, must be transmitted.
(C) If in conjunction with the international agreement signed, other diplomatic notes are exchanged (either at the same time, beforehand, or subsequently), properly certified copies of the diplomatic notes from the United States to the foreign government must be transmitted with the signed originals of the notes from the foreign government.
(D) Copies may be certified either by a certification on the document itself, or by a separate certification attached to the document.
(1) A certification on the document itself is placed at the end of the document, either typed or stamped, and states that the document is a true copy of the original text signed or initialed by (insert full name of signatory), and is signed by the certifying officer.
(2) A certification on a separate document is typed and briefly describes the document being certified and states that it is a true copy of the original text signed or initialed by (insert full name of signatory), and is signed by the certifying officer.
(ii) A signed memorandum of language conformity obtained pursuant to § 181.6(g), as applicable;
(iii) A statement listing the names and titles/positions of the individuals signing or initialing the international agreement for the foreign government as well as for the United States, unless clear in the texts being transmitted;
(iv) A statement identifying the Circular 175 authorization pursuant to which the international agreement was concluded, so that the sources of legal authority relevant to the agreement's conclusion and implementation may be readily identified for inclusion in reporting to Congress under the Act; and
(v) the exchange of diplomatic notes bringing an international agreement into force, as applicable.
(2) Qualifying non-binding instruments. (i) When a Department of State bureau identifies a non-binding instrument that is not covered by section 112b(k)(5)(B) of the Act as one that could reasonably be expected to have a significant impact on the foreign policy of the United States pursuant to § 181.5(b), the bureau shall provide to the Bureau of Legislative Affairs and the Office of the Assistant Legal Adviser for Treaty Affairs within 15 days of the conclusion of the qualifying non-binding instrument the documents and information specified in paragraph (a)(1)(iv) of this section.
(ii) When an agency other than the Department of State, applying the criteria in § 181.4(b), determines that a non-binding instrument (other than a non-binding instrument covered by section 112b(k)(5)(B) of the Act) could reasonably be expected to have a significant impact on the foreign policy of the United States, the agency shall transmit to the Department via a memorandum addressed to the Department's Executive Secretary within 15 days of the conclusion of the qualifying non-binding instrument the documents and information specified in subparagraph iv.
(iii) When a Department of State bureau or an agency receives from the Department of State's Bureau of Legislative Affairs notice of a written communication related to a qualifying non-binding instrument from the Chair or Ranking Member of either of the appropriate congressional committees in accordance with § 181.5(c), the bureau or agency shall provide to the Bureau of
(iv) The documents and information to be provided pursuant to paragraphs (a)(2)(i), (ii), and (iii) of this section are as follows:
(A) The text of the qualifying non-binding instrument (the signed original instrument need not be submitted), together with all accompanying papers, including any annex, appendix, codicil, side agreement, side letter, or any document of similar purpose or function to the aforementioned regardless of the title of the document that is entered into contemporaneously and in conjunction with the instrument, and any implementing agreements or arrangements or any document of similar purpose or function to the aforementioned regardless of the title of the document that is entered into contemporaneously and in conjunction with the instrument (See section 181.10);
(B) A detailed description of the Constitutional, statutory, or treaty authority relied upon to conclude the qualifying non-binding instrument. If multiple authorities are relied upon, all such authorities shall be cited. All citations to the Constitution of the United States, a treaty, or a statute shall include the specific article or section and subsection reference whenever available and, if not available, shall be as specific as possible. If the authority relied upon is or includes article II of the Constitution of the United States, the basis for that reliance shall be explained;
(C) A description of any new or amended statutory or regulatory authority anticipated to be required to implement the instrument for inclusion in reporting to Congress under the Act; and
(D) An indication of whether the text has been published on the website of the Department of State or of another U.S. Government agency, or by a depositary or other similar administrative body.
(b) On an ongoing basis, State Department bureaus and U.S. Government agencies shall promptly provide to the Bureau of Legislative Affairs and the Assistant Legal Adviser for Treaty Affairs any implementing materials related to an international agreement or qualifying non-binding instrument needed to respond to a request from the Chair or Ranking Member of the Committee on Foreign Relations of the Senate or the Committee on Foreign Affairs of the House of Representatives for such materials in accordance with 1 U.S.C. 112b(c). State Department bureaus and U.S. Government agencies shall provide to the Bureau of Legislative Affairs and the Assistant Legal Adviser for Treaty Affairs materials responsive to the congressional communication within 15 days of being informed of such communication.
(c) In the event the text of an international agreement or qualifying non-binding instrument changes between the time of its conclusion and the time of its entry into force or effect, State Department bureaus and U.S. Government agencies shall provide to the Assistant Legal Adviser for Treaty Affairs the revised text of the agreement or qualifying non-binding instrument within 15 days of its entry into force or effect so that the Department is able to provide the revised text to Congress within the statutorily-required time period.
(a) Not less frequently than once each month the Assistant Legal Adviser for Treaty Affairs shall transmit to the Majority Leader of the Senate, the Minority Leader of the Senate, the Speaker of the House of Representatives, the Minority Leader of the House of Representatives, and to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives the following:
(1) A list of all international agreements and qualifying non-binding instruments signed, concluded, or otherwise finalized during the prior month;
(2) The text of all international agreements and qualifying non-binding instruments described in subparagraph (a)(1) of this section;
(3) For each international agreement and qualifying non-binding instrument transmitted, a detailed description of the legal authority relied upon to enter into the international agreement or qualifying non-binding instrument;
(4) A list of all international agreements that entered into force and qualifying non-binding instruments that became operative for the United States or an agency of the United States during the prior month;
(5) The text of all international agreements and qualifying non-binding instruments described in paragraph (a)(4) of this section if such text differs from the text of the agreement or instrument previously provided pursuant to paragraph (a)(2) of this section; and
(6) A statement describing any new or amended statutory or regulatory authority anticipated to be required to fully implement each international agreement and qualifying non-binding instrument included in the list described in paragraph (a)(1) of this section.
(b) If any of the information or texts to be transmitted pursuant to paragraph (a) of this section is or contains classified information, the Assistant Legal Adviser for Treaty Affairs shall transmit such information or texts in a classified annex.
(c) Pursuant to section 12 of the Taiwan Relations Act (22 U.S.C. 3311), any agreement entered into between the American Institute in Taiwan and the governing authorities on Taiwan, or any agreement entered into between the Institute and an agency of the United States Government, shall be transmitted by the Assistant Legal Adviser for Treaty Affairs to the President of the Senate and to the Speaker of the House of Representatives as soon as practicable after the entry into force of such agreements, but in no event later than 60 days thereafter. Classified agreements entered into by the Institute shall be transmitted by the Assistant Legal Adviser for Treaty Affairs to the Senate Committee on Foreign Relations and the House Committee on Foreign Affairs.
(a)
(b)
(c)
(d)
(i) International agreements and qualifying non-binding instruments that contain information that has been given a national security classification pursuant to Executive Order 13526 (50 U.S.C. 3161 note; relating to classified national security information) or any predecessor or successor order, or that contain any information that is otherwise exempt from public disclosure pursuant to United States law. “Information that is otherwise exempt from public disclosure pursuant to United States law” includes information that is exempt from public disclosure under the Freedom of Information Act pursuant to one of the exemptions set out in 5 U.S.C. 552(b)(1) through (9);
(ii) International agreements and qualifying non-binding instruments that address military operations, military exercises, acquisition and cross servicing, logistics support, military personnel exchange or education programs, or the provision of health care to military personnel on a reciprocal basis;
(iii) International agreements and qualifying non-binding instruments that establish the terms of grant or other similar assistance, including in-kind assistance, financed with foreign assistance funds pursuant to the Foreign Assistance Act of 1961 (22 U.S.C. 2151
(iv) International agreements and qualifying non-binding instruments, such as project annexes and other similar instruments, for which the principal function is to establish technical details for the implementation of a specific project undertaken pursuant to another agreement or qualifying nonbinding instrument that has been published in accordance with 1 U.S.C. 112b(b)(1) or (2);
(v) International agreements and qualifying non-binding instruments that have been separately published by a depositary or other similar administrative body, except that the information described in § 181.8(a)(3) and (6) relating to such international agreements and qualifying non-binding instruments shall be made available to the public on the website of the Department of State in accordance with paragraph (c) of this section; and
(vi) any international agreements and qualifying non-binding instruments within one of the above categories that had not been published as of September 19, 2023, unless, in the case of such a non-binding instrument, the instrument is the subject of a written communication from the Chair or Ranking Member of either the Committee on Foreign Relations of the Senate or the Committee on Foreign Affairs of the House of Representatives to the Secretary in accordance with 1 U.S.C. 112b(k)(5)(A)(ii)(II).
(2) Pursuant to 1 U.S.C. 112a(b), any international agreements and qualifying non-binding instruments in the possession of the Department of State, other than those in paragraph (d)(1)(i) of this section, but not published will be made available upon request by the Department of State.
(3) Pursuant to 1 U.S.C. 112b(l)(1), nothing in the Act may be construed to authorize the withholding from disclosure to the public of any record if such disclosure is required by law.
(a) In accordance with 1 U.S.C. 112b(k)(7), the term “text” with respect to an international agreement or qualifying non-binding instrument includes:
(1) Any annex, appendix, codicil, side agreement, side letter, or any document of similar purpose or function to the aforementioned, regardless of the title of the document, that is entered into contemporaneously and in conjunction with the international agreement or qualifying non-binding instrument; and
(2) Any implementing agreement or arrangement, or any document of similar purpose or function to the aforementioned regardless of the title of the document, that is entered into contemporaneously and in conjunction with the international agreement or qualifying non-binding instrument.
(b) 1 U.S.C. 112b(k)(7) further provides that, as used in this definition, the term “contemporaneously and in conjunction with”:
(1) Shall be construed liberally; and
(2) May not be interpreted to require any action to have occurred simultaneously or on the same day.
Environmental Protection Agency (EPA).
Final rule.
On November 15, 2021, the New Jersey Department of Environmental Protection (NJDEP) submitted a request for the Environmental Protection Agency (EPA) to approve the redesignation of the New Jersey portion of the Northeast Pennsylvania-Upper Delaware Valley Interstate Air Quality Control Region (Warren County, New Jersey) from nonattainment to attainment for the 1971 Sulfur Dioxide (SO
This final rule is effective on October 2, 2023.
The EPA has established a docket for this action under Docket ID Number EPA-R02-OAR-2021-0871. All documents in the docket are listed on the
Kenneth Fradkin, Air Programs Branch, Environmental Protection Agency, 290 Broadway, New York, New York 10007-1866, at (212) 637-3702, or by email at
On August 14, 2023, the EPA proposed to redesignate the Warren County SO
The specific details of New Jersey's redesignation request and SIP revision, and the rationale for the EPA's approval action are explained in the EPA's proposed rulemaking and are not restated in this final action. For this detailed information, the reader is referred to the EPA's August 14, 2023, proposed rulemaking (88 FR 54983).
NJDEP provided a supplement to its SIP submission on March 16, 2023, which described New Jersey's programs and initiatives addressing the needs of communities with Environmental Justice (EJ) concerns.
The EPA performed an EJ analysis for the Warren County SO
On August 14, 2023, we proposed to find that action would not have or lead to disproportionately high or adverse human health or environmental effects on communities with EJ concerns. For the specific details regarding the EPA's evaluation of EJ considerations, the reader is referred to the August 14, 2023, proposed rulemaking (88 FR 54983, 54994-54995).
The EPA provided a 30-day review and comment period for the August 14, 2023, proposed rule. The comment period ended on September 13, 2023. The EPA received no comments on the proposed action.
The EPA has evaluated New Jersey's redesignation request and determined that it meets the redesignation criteria provided under CAA section 107(d)(3)(E) and is consistent with Agency regulations and policy. The EPA is approving New Jersey's request to redesignate the Warren County SO
In accordance with 5 U.S.C. 553(d) of the Administrative Procedure Act (APA), the EPA finds there is good cause for this action to become effective immediately upon publication. The immediate effective date for this action is authorized under 5 U.S.C. 553(d)(1). Section 553(d)(1) of the APA provides that final rules shall not become effective until 30 days after publication in the
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the 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 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 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 it 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. 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.”
NJDEP evaluated EJ considerations as part of its SIP submittal even though the CAA and applicable implementing regulations neither prohibit nor require an evaluation. The EPA's evaluation of the NJDEP's environmental justice considerations is described above in the section titled, “Environmental Justice Considerations.” The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. The EPA is taking action under the CAA on reasoning independent of the NJDEP's evaluation of environmental justice. Due to the nature of this action, it is expected to have a neutral to positive impact on the air quality of the affected area.
This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and 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 December 1, 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, Reporting and recordkeeping requirements, Sulfur oxides.
Environmental protection, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides.
42 U.S.C. 7401
For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
42 U.S.C. 7401,
Federal Communications Commission.
Final rule; correction.
The Federal Communications Commission (FCC) is correcting a final rule that appeared in the
Effective October 2, 2023.
For further information, please contact, Travis Hahn, Attorney Advisor, Telecommunications Access Policy Division, Wireline Competition Bureau, at
In FR Doc. 2023-18621, appearing on page 60347 in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; quota transfer.
NMFS is transferring 25 metric tons (mt) of Atlantic bluefin tuna (BFT) quota from the Reserve category to the General category October through November time period resulting in an adjusted October through November time period subquota of 117.4 mt and a Reserve category quota of 87.2 mt. This action would affect Atlantic Tunas General category (commercial) permitted vessels and Highly Migratory Species (HMS) Charter/Headboat permitted vessels with a commercial sale endorsement when fishing commercially for BFT.
The transfer is effective September 28, 2023, through November 30, 2023.
Lisa Crawford,
Atlantic HMS fisheries, including BFT fisheries, are managed under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971
As described in § 635.27(a), the current baseline U.S. BFT quota is 1,316.14 metric tons (mt) (not including the 25 mt ICCAT allocated to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area). The baseline quotas for the General and Reserve categories are 710.7 mt and 38.2 mt, respectively. The General category baseline quota is suballocated to different time periods. Relevant to this action, the baseline subquota for the October to November time period is 92.4 mt. To date, NMFS has published several actions that resulted in adjustments to the Reserve category quota, including the allowable carryover of underharvest from 2022 to 2023, resulting in an adjusted Reserve category quota of 112.2 mt (88 FR 48136, July 26, 2023; 88 FR 64385,
Under § 635.27(a)(8), NMFS has the authority to transfer quota among fishing categories or subcategories after considering the determination criteria provided under § 635.27(a)(7). NMFS has considered all of the relevant determination criteria and their applicability to this inseason quota transfer. These criteria include, but are not limited to, the following:
Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock (§ 635.27(a)(7)(i)), biological samples collected from BFT landed by General category fishermen and provided by BFT dealers continue to provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT in the General category will support the continued collection of a broad range of data for these studies and for stock monitoring purposes.
NMFS considered the catches of the General category quota to date and the likelihood of overharvests and an earlier closure of the General category if no adjustment is made (§ 635.27(a)(7)(ii) and (ix)). While the General category is currently closed and the October through November time-period subquota has not yet opened or been exceeded, without a quota transfer, NMFS would likely need to close the General category shortly after the October through November time period opens and participants would have to stop BFT fishing activities while commercial-sized BFT remain available in the areas where General category permitted vessels operate. A quota transfer of 25 mt at this time provides limited additional opportunities to harvest the U.S. BFT quota while avoiding exceeding it.
Regarding the projected ability of the vessels fishing under the General category to harvest the additional amount of BFT quota transferred before the end of the fishing year (§ 635.27(a)(7)(iii)), NMFS considered General category landings over the last several years and landings to date this year. Landings are highly variable and depend on access to commercial-sized BFT and fishing conditions, among other factors. Thus, this quota transfer will allow fishermen to take advantage of the availability of BFT on the fishing grounds and provide a reasonable opportunity to harvest the available U.S. BFT quota.
NMFS also considered the estimated amounts by which quotas for other gear categories of the fishery might be exceeded (§ 635.27(a)(7)(iv)) and the ability to account for all 2023 landings and dead discards. In most of the last several years, total U.S. BFT landings have been below the available U.S. quota such that the United States has carried forward the maximum amount of underharvest allowed by ICCAT from one year to the next. NMFS recently took such an action to carry over the allowable 106.5 mt of underharvest from 2022 to 2023 (88 FR 64831, September 20, 2023). NMFS anticipates having sufficient quota to account for landings and dead discards within the adjusted U.S. quota, consistent with ICCAT recommendations.
NMFS also considered the effects of the adjustment on the BFT stock and the effects of the transfer on accomplishing the objectives of the FMP (§ 635.27(a)(7)(v) and (vi)). This transfer would be consistent with established quotas and subquotas, which are implemented consistent with ICCAT Recommendation 22-10, ATCA, and the objectives of the 2006 Consolidated HMS FMP and amendments. In establishing these quotas and subquotas and associated management measures, ICCAT and NMFS considered the best scientific information available, objectives for stock management and status, and effects on the stock. This quota transfer is in line with the established management measures and stock status determinations. Another principal consideration is the objective of providing opportunities to harvest the available General category quota without exceeding the annual quota. This consideration is based on the objectives of the 2006 Consolidated HMS FMP and its amendments, and includes achieving optimum yield on a continuing basis and optimizing the ability of all permit categories to harvest available BFT quota allocations (related to § 635.27(a)(7)(x)). Specific to the General category, this includes providing opportunities equitably across all time periods.
Given these considerations, NMFS is transferring 25 mt of the available 112.2 mt of Reserve category quota to the General category October through November time period subquota. Therefore, NMFS adjusts the General category October through November time period subquota to 117.4 mt and the Reserve category quota to 87.2 mt for the remainder of the 2023 fishing year, or until modified by a later action.
NMFS will continue to monitor the BFT fishery closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustments, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General and HMS Charter/Headboat category vessel owners are required to report their own catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing
Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustments are necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act and regulations at 50 CFR part 635 and is exempt from review under Executive Order 12866.
The Assistant Administrator for NMFS (AA) finds that pursuant to 5 U.S.C. 533(b)(B), there is good cause to waive prior notice and opportunity to provide comment on this action, as notice and comment would be impracticable and contrary to this action for the following reasons. Specifically, the regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT
For all of the above reasons, the AA finds that pursuant to 5 U.S.C. 553(d), there is good cause to waive the 30-day delay in effective date.
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; inseason adjustments to biennial groundfish management measures.
This final rule announces routine inseason adjustments to management measures in commercial and recreational groundfish fisheries for the remainder of the 2023 fishing year. This action is intended to allow commercial and recreational fishing vessels to access more abundant groundfish stocks while protecting overfished and depleted stocks.
This final rule is effective October 2, 2023.
Keeley Kent, phone: 206-247-8252 or email:
The Pacific Coast Groundfish Fishery Management Plan (PCGFMP) and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish in the exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops groundfish harvest specifications and management measures for 2 year periods (
At its September 2023 meeting, in an effort to limit mortality of quillback rockfish off California (as discussed below), the Council recommended NMFS prohibit quillback rockfish retention in federal waters off California in all recreational (
In addition to the quillback rockfish related management measure adjustments, the Council recommended modifying fixed gear trip limits for LE and OA fisheries for sablefish north of 36° N lat. and lingcod north of 42° N lat. All of the inseason actions the Council recommended were adjustments to be implemented for the remainder of the 2023 fishing year.
Pacific Coast groundfish fisheries are managed using harvest specifications or
Under current management, quillback rockfish are a contributing species within the Minor Nearshore Rockfish complex north and south of 40°10′ N lat. The harvest specifications for this species (ACL, ABC, OFL) contribute to the harvest specifications of the complex. Quillback rockfish was assessed in 2021 and that assessment was determined to be the best scientific information available by the Pacific Fishery Management Council's Science and Statistical Committee as well as NMFS (see
In an analysis for the November 2021 Council meeting, a report by the Groundfish Management Team (GMT) showed continued exceedances of the OFL contribution of quillback rockfish to the nearshore rockfish complex every year in all 4 years between 2017 and 2020 (Agenda Item E.3.a GMT Report 2, November 2021). Additionally, the Council noted that quillback rockfish has a 2.22 vulnerability score, making it one of the most vulnerable rockfishes in the PCGFMP. For these reasons, the Council recommended species-specific ACTs for quillback rockfish off the coast of California as part of the 2023-24 harvest specifications and management measures (87 FR 77007, December 16, 2022) to support better tracking of mortality in light of the depleted nature of quillback off California.
Quillback rockfish have a shared commercial and recreational species-specific ACT of 0.87 metric tons (mt) for the area between 42° N lat. and 40°10′ N lat. and 0.89 mt for south of 40°10′ N lat. (see 50 CFR 660 Table 1a and Table 2a). The ACTs were set under the 2023-24 Groundfish Harvest Specifications and Management Measures action in response to the 2021 stock assessment for quillback rockfish off the coast of California, which has been deemed the best scientific information available by NOAA Fisheries and the scientific advisors to the Council. Given quillback rockfish are currently managed in a stock complex, the new ACT was meant to essentially formalize the ACL contributions for management purposes. Setting the ACTs equal to the ACL contributions allows the Council to recommend necessary management measures inseason when the ACL contribution is met or projected to be met. Exceeding the ACL contribution for species in a complex would otherwise typically not trigger a Council response or accountability measure.
At the September 2023 Council meeting, the California Department of Fish and Wildlife (CDFW) requested that the Council take action in federal waters similar to management measures recently taken in California state waters as a result of mortality of quillback rockfish off California estimated to substantially exceed the federally set harvest limits (see
In response, the Council's GMT conducted analysis to see if there were any particular aspects of the fishery (by sector, location, gear type,
The GMT analyzed observer (commercial only) and landings data (commercial and recreational) from 2021 and 2022 for the two geographic areas off the coast of California with
This information indicated that in 2021 and 2022, most landed catch of quillback rockfish was from recreational fisheries, OA fixed gear had high estimated discards in 2022, and the nearshore fishery has a relatively lower overall but more consistent harvest tonnage from a mix of both landings and discards. Further investigation on commercial fishery encounters indicated that very few trips in the OA fixed gear fishery that fished with hook and line gears caught quillback rockfish in 2021 and 2022 (approximately 2 percent of trips between 42° N lat. and 40°10′ N lat. and less than 0.2 percent of trips south of 40°10′ N lat.). Comparatively, the nearshore fishery has much higher encounter rates with quillback rockfish, with approximately 15 percent of trips between 42° N lat. and 40°10′ N lat. and 6 percent of trips south of 40°10′ N lat. catching quillback rockfish.
A further consideration of limited available spatial data indicated that quillback rockfish are very rarely encountered in waters deeper than 50 fathoms (91.4 meters (m)) but that the depth ranges where they are most commonly encountered varies somewhat by latitude with more attributed catches in shallower depths (
The GMT also looked at whether the legal non-bottom contact hook-and-line gear allowed in the non-trawl rockfish conservation area (RCA) (50 CFR 660.330(b)(3)) has been encountering quillback rockfish. This gear was a new management measure under the 2023-24 harvest specifications and management measures (87 FR 77007, December 16, 2022) within the non-trawl RCA in order to provide additional opportunity to commercial non-trawl fisheries to target healthy stocks while relieving pressure on depleted or constraining nearshore stocks. While data is limited so far, the gear configurations have shown to have relatively low bycatch of groundfish species of concern while being able to harvest healthy midwater rockfish. In the 14 years the three Experimental Fishing Permits (EFPs) operated that used similar gear (Emley-Platt, Real Good Fish, and Oregon RFA EFP), a total of only three quillback rockfish were caught. Further analysis showed that of the 108 mt of total catch in all three EFPs combined, approximately only 3 percent was quillback rockfish.
In light of this new information, the Council recommended limiting the closures of trip limits by gear type and by area in order to maintain some fishing opportunity with limited quillback rockfish impacts, and focusing action on the sectors with greater quillback impacts. The recommendations from the Council are projected to reduce take of quillback rockfish in order to address localized depletion while minimizing the economic impact to fishing communities to the extent possible. Therefore, the Council recommended and NMFS is implementing, by modifying Tables 2 North and South to part 660, subpart E, Tables 3 North and South to part 660, subpart F, and 50 CFR 660.360(c)(3), a zero pound trip and bag limits, thereby effectively prohibiting retention of quillback rockfish off California (south of 42° N lat.) in both commercial (0 lbs per bimonthly period trip limit) and recreational fisheries in federal waters (0 lbs bag limit). The Council also recommended and NMFS is implementing, by Tables 2 North and South to part 660, subpart E, a zero pound trip limit for LE fisheries, effectively closing those LE fisheries for period 6 (November-December) between 42° North (N) latitude (lat.) to 34°27′ N lat. (unless otherwise specified) for the following stocks and complexes: Minor Shelf Rockfish complex, widow rockfish, yellowtail rockfish (42° N lat. to 40°10′ N lat), canary rockfish, Minor Nearshore Rockfish complex, lingcod, chilipepper rockfish (40°10′ N lat. to 34°27′ N lat.), bocaccio rockfish (40°10′ N lat. to 34°27′ N lat.), and cabezon.
The Council recommended and NMFS is implementing, by modifying Tables 3 North and South to part 660, subpart F, a zero pound trip limit for OA fisheries, effectively closing the OA fisheries for period 6 (November-December) between 42° North (N) latitude (lat.) to 34°27′ N lat. for the following stocks and complexes: Minor Nearshore Rockfish complex, lingcod, and cabezon.
The Council recommended and NMFS is implementing, by modifying Tables 3 North and South to part 660, subpart F, a zero pound trip limit for OA fisheries, effectively closing the OA fishieries for period 6 (November-December), except for vessels using legal non-bottom contact hook and line gear (as defined at § 660.330(b)(3)) between 42° North (N) latitude (lat.) to 34°27′ N lat. (unless otherwise specified) for the following stocks and complexes: minor shelf rockfish (42° N lat. to 40°10′ N lat), widow rockfish, yellowtail rockfish (42° N lat. to 40°10′ N lat), canary rockfish, chilipepper rockfish (40°10′ N lat. to 34°27′ N lat.), and bocaccio rockfish (40°10′ N lat. to 34°27′ N lat.).
Additionally, the Council recommended and NMFS is implementing, by modifying 50 CFR 660.360, a closure for the nearshore recreational groundfish fisheries for the remainder of 2023 in federal waters for the Northern GMA, Mendocino GMA, San Francisco GMA, and Central GMA; and prohibiting recreational vessels from fishing in federal waters shoreward of the 50 fathom RCA boundary line. Shelf rockfish, slope rockfish, and lingcod may be taken seaward of the 50-fathom boundary line by recreational vessels, while it will be unlawful to take or possess nearshore rockfish, cabezon or greenlings at any depth in federal waters by recreational vessels.
Vermilion rockfish off California are currently managed as part of the Minor Shelf Rockfish complex, south of 40°10′ N latitude; as well as the Minor Shelf Rockfish complex north of 40°10′ N latitude, but only in the area between 42° and 40°10′ N lat. For 2023, the southern complex has an ACL of 1,469 mt, and vermilion rockfish has an ACL contribution of 281.3 mt; the northern complex has an ACL of 1,283 mt, and vermilion rockfish has an ACL contribution of 6.5 mt within it.
With the changes described above, which will shift fishing effort from the nearshore out to the shelf, concerns about limiting shelf stocks, specifically vermilion rockfish, arose. Due to the high value of vermilion rockfish, there are concerns about potential effort increases to minor shelf rockfish species, especially vermilion rockfish, as well as additional concerns with non-compliance in utilizing the legal non-bottom contact hook and line gear (as defined at § 660.330(b)(3)). While the Council intends to minimize impacts to quillback rockfish, the intent of this action is also to avoid overharvesting other species. To achieve this, the
Given that the new LE trip limits for the Minor Shelf Rockfish complex will be set to zero for the areas between 42° N lat. to 40°10′ N lat. and 40°10′ N lat. to 34°27′ N lat. for period 6 (November-December), it is assumed that the LE entrants will shift their effort to the OA fishery when targeting the Minor Shelf Rockfish complex since legal non-bottom contact hook and line gear (as defined at § 660.330(b)(3)) will still be allowed in that area. Therefore, the GMT analyzed the potential reduction to open access Minor Shelf Rockfish complex trip limits between 42° N lat. to 40°10′ N lat. and 40°10′ N lat. to 34°27′ N lat. Additionally, the GMT analyzed a potential reduction to the vermilion rockfish subtrip limit between 40°10′ N lat. and 34°27′ N lat. (Agenda Item G.8.a Supplemental GMT Report 5, September 2023).
Consequently, the Council recommended and NMFS is implementing, by modifying Tables 3 North and South to part 660, subpart F, a closure of the Minor Shelf Rockfish complex trip limit for all OA gear between 42° N lat. to 34°27′ N lat. except legal non-bottom contact hook and line gear (as defined at § 660.330(b)(3)) (as discussed above). For vessels using legal non-bottom contact hook and line gear, the Council recommended and NMFS is implementing a reduction in the Minor Shelf Rockfish complex trip limits for period 6 (November-December). Between 42° N lat. to 40°10′ N lat., the Minor Shelf Rockfish trip limit will be 400 lbs. (181.4 kg) per month. Between 40° 10′ N lat. to 34°27′ N lat., the trip limit will be 2,000 lbs. (907.2 kg) per bimonthly period, of which no more than 200 lb. (90.7 kg) may be vermilion rockfish.
Sablefish is an important commercial species on the west coast with vessels targeting sablefish with both trawl and fixed gear (longlines and pots/traps). Sablefish is managed with a coast-wide ACL that is apportioned north and south of 36° N lat. based on a 5-year rolling average of swept-area biomass from the trawl survey. In 2023, the portion of the ACL for sablefish north of 36° N lat. is 8,486 mt with a fishery HG of 7,600 mt. The fishery HG north of 36° N lat. is further divided between the Limited Entry Fixed Gear (LEFG) and OA sectors with 90.6 percent, or 6,885 mt, going to the LEFG sector and 9.4 percent, or 714 mt, going to the OA sector.
At the September 2023 Council meeting, the Council's GMT received requests from industry members and members of the Council's Groundfish Advisory Subpanel to examine the potential to increase sablefish trips limits for the LEFG and OA fisheries north of 36° N lat. Landings in both northern sectors are tracking well below their respective sector-specific targets so far in 2023, and the LEFG sector in particular had a slow start to the fishing season, largely driven by fishing opportunities off Alaska. The intent of increasing trip limits is to increase harvest opportunities for vessels targeting sablefish. To evaluate potential increases to sablefish trip limits, the GMT made model-based landings projections under current regulations and alternative sablefish trip limits, including the limits ultimately recommended by the Council, for the LEFG and OA fisheries through the remainder of the year. Table 4 shows the projected sablefish landings, the sablefish allocations, and the projected attainment percentage by fishery under both the current trip limits and the Council's recommended adjusted trip limits. These projections were based on the most recent catch information available through early September 2023. Industry did not request changes to sablefish trip limits for the LEFG or OA fishery south of 36° N lat. Therefore, NMFS and the Council did not consider trip limit changes for these fisheries at this time.
As shown in Table 4, under the current trip limits, the model predicts catches of sablefish will be at or below 58 percent, or 240 mt of the 417 mt allocation, for LEFG and 82 percent, or 561 mt of the 687 mt allocation, for OA fishery north of 36° N lat. Under the Council's recommended trip limits, sablefish attainment is projected to increase in the LEFG and OA fisheries north of 36° N lat. up to 87 and 95 percent, respectively.
Trip limit increases for sablefish are intended to increase attainment of the non-trawl HG. The recommended trip limit increases do not change projected impacts to co-occurring rebuilding species compared to the impacts anticipated in the 2023-24 harvest specifications because the projected impacts to those species assume that the entire sablefish ACL is harvested. Therefore, the Council recommended and NMFS is implementing, by modifying Tables 2 North and South to part 660, subpart E, trip limit changes for the LEFG fishery north of 36° N lat. to set the limits at “9,000 lbs. (4,082.3 kg)/week not to exceed 18,000 lbs. (8,164.7 kg)/2 months” beginning in period 6 (November-December) through the end of the year. NMFS is also implementing, by modifying Tables 3 North and South to part 660, subpart F, trip limit changes for the OA sablefish fishery north of 36° N lat. to set the limits at 4,000 lbs. (1,814.4 kg)/week not to exceed 8,000 lbs. (3,628.7 kg)/2 months starting with period 6 (November-December) through the end of the year.
Prior to the September 2023 meeting, the GMT also received a request to increase the lingcod trip limits north of 42° N lat. to reduce regulatory discarding and increase economic opportunity. Status quo is currently resulting in regulatory discard for certain participants in the fishery. Lingcod is managed with an ACL north of 40°10′ N lat. and an ACL south of 40°10′ N lat. The 2023 ACL for lingcod north of 40°10′ N lat. is 4,378 mt.
To evaluate potential increases to lingcod trip limits north of 42° N lat., the GMT made model-based landings projections under current regulations and alternative trip limits, including the limits ultimately recommended by the Council, for the LE and OA fisheries through the remainder of the year. Table 5 shows the projected lingcod landings, the lingcod allocations, and the projected attainment percentage by fishery under both the current trip limits and the Council's recommended adjusted trip limits for north of 42° N lat. These projections were based on the most recent catch information available through late August 2023.
Under the current trip limits, the model predicts catches of lingcod north of 42° N lat. will total 160.8 mt, which is 7.1 percent of the 2023 non-trawl allocation of lingcod (2,254.1 mt). Under the Council's recommended trip limits, lingcod mortality north of 42° N lat. is expected to increase to 166.0 mt, which is 7.4 percent of the 2023 non-trawl allocation of lingcod.
Trip limit increases for lingcod are intended to marginally increase attainment of the non-trawl allocation. The recommended trip limit increases do not appreciably change projected impacts to co-occurring rebuilding species compared to the impacts anticipated in the 2023-2024 harvest specifications because the projected impacts to those species assume that the entire lingcod ACL is harvested. Therefore, the Council recommended and NMFS is implementing, by modifying Table 2 North to part 660, subpart E, and Table 3 North to part 660, subpart F, trip limit changes for LE and OA lingcod north of 42° N lat. for period 6 (November-December) as shown above in Table 5. These changes will be implemented through the end of 2023.
This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best scientific information available, consistent with the PCGFMP and its implementing regulations.
This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.
The aggregate data upon which these actions are based are available for public inspection by contacting the NMFS West Coast Region (see
Pursuant to 5 U.S.C. 553(b), NMFS finds good cause to waive prior public notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. Changes of this nature were anticipated in the final rule for the 2023-24 harvest specifications and management measures which published on December 16, 2022 (87 FR 76007). The majority of the adjustments to management measures in this action address a conservation concern for quillback rockfish off of California as new information demonstrates the current management measures are not sufficient to control mortality as is needed. Therefore, providing a comment period for this action could hamper the adherence to scientifically informed reference points, created to ensure sustainability of the affected fisheries, and would delay measures intended to address localized depletion of quillback rockfish. In addition, trip limit increases for sablefish and lingcod are expected to potentially increase economic value of the fisheries by increasing harvest opportunity and reducing regulatory discards. Delaying implementation to allow for public comment would likely reduce the economic benefits to the commercial fishing industry and the businesses that rely on that industry, because the new regulations could not be implemented in time to realize the projected benefits to fishing
Fisheries, Fishing, and Indian Fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:
16 U.S.C. 1801
(c) * * *
(3)
(i) * * *
(A) * * *
(
(
(
(
(5) South of 34°27′ N lat. (Southern Management Area), recreational fishing for the RCG Complex and lingcod is closed from January 1 through March 31, open at all depths from April 1 through September 15; and is prohibited in the EEZ shoreward of a boundary line approximating the 50 fm (91 m) depth contour from September 16 through December 31 along the mainland coast and along islands and offshore seamounts (seaward of 50 fm (91 m) is open), except in the CCAs where fishing is prohibited seaward of the 40 fm (73 m) depth contour when the fishing season is open (see paragraph (c)(3)(i)(B) of this section).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reallocation.
NMFS is reallocating the projected unused amount of Pacific cod from trawl catcher vessels to catcher vessels less than 60 feet (18.3 m) length overall (LOA) using hook-and-line or pot gear and to Amendment 80 trawl catcher/processors in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to allow the 2023 total allowable catch (TAC) of Pacific cod to be harvested.
Effective September 26, 2023, through 2400 hours, Alaska local time (A.l.t.), December 31, 2023.
Krista Milani, 907-581-2062.
NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2023 Pacific cod TAC specified for trawl catcher vessels in the BSAI is 26,307 mt as established by the final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023), correction (88 FR 18258, March 28, 2023) and reallocation (88 FR 56778, August 21, 2023).
The 2023 Pacific cod TAC allocated to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI is 4,740 mt as established by the final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023), correction (88 FR 18258, March 28, 2023), and reallocations (88 FR 18443, March 29, 2023; 88 FR 56778, August 21, 2023).
The 2023 Pacific cod TAC allocated to Amendment 80 trawl catcher/processors in the BSAI is 16,254 mt as established by the final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023), and correction (88 FR 18258, March 28, 2023).
The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that trawl catcher vessels will not be able to harvest 1,000 mt of the 2023 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(
Therefore, in accordance with § 679.20(a)(7)(iii)(A), NMFS reallocates 300 mt from trawl catcher vessels to the annual amount specified for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear, and in accordance with § 679.20(a)(7)(iii)(B), NMFS reallocates 700 mt from trawl catcher vessels to the annual amount specified for Amendment 80 trawl catcher/processors.
The harvest specifications for 2023 Pacific cod included in final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023), correction (88 FR 18258, March 28, 2023), and reallocations (88 FR 18443, March 29, 2023; 88 FR 56778, August 21, 2023) is revised as follows: 25,307 mt to trawl catcher vessels, 5,040 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear, and 16,954 mt to Amendment 80 trawl catcher/processors.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would allow for harvests that exceed the originally specified apportionment of the Pacific cod TAC. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 26, 2023.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Interim final rule; request for comments.
Based on the Atlantic States Marine Fisheries Commission's recommendations, we are implementing aggregate ownership caps in Lobster Conservation Management Areas 2 and 3, a maximum trap cap reduction in Area 3, and mandatory coastwide electronic harvester reporting for all federally permitted lobster vessels. The ownership caps and trap cap reduction measures are intended to reduce fishing exploitation and latent effort in the trap fishery by scaling the fishery to the size of the Southern New England lobster stock. The harvester reporting requirement is intended to improve the spatial resolution of harvester data, and improve and expand the collection of fishery effort data. This action is necessary to better manage the lobster fishery toward sustainability and to ensure fishery regulations for the lobster fishery in Federal waters remain compatible with the intent of the Commission's Interstate Fishery Management Plan for American Lobster and consistent with the Atlantic Coastal Fisheries Cooperative Management Act.
You may submit comments, identified by NOAA-NMFS-2022-0032, by any one of the following methods:
•
A copy of the environmental assessment, including the Regulatory Impact Review (RIR) and the Regulatory Flexibility Act (RFA) analyses is available online at:
Copies of the Atlantic States Marine Fisheries Commission's Addenda to the Interstate Fishery Management Plan for American Lobster are available at:
Allison Murphy, Fishery Policy Analyst, (978) 281-9122.
These regulations modify Federal lobster fishery management measures in the Exclusive Economic Zone (EEZ) under the authority of section 803(b) of the Atlantic Coastal Fisheries Cooperative Management Act (16 U.S.C. 5101
The purpose of this action is to manage the American lobster fishery to maximize resource sustainability, recognizing that Federal management occurs in concert with state management, and thus, that compatibility between state and Federal measures is crucial to the overall success of American lobster management. To achieve this purpose, we are responding to state management measures to address poor stock conditions and persistent recruitment failure of the Southern New England (SNE) American lobster stock. We are also responding to efforts to improve the spatial resolution of harvester data, and improve and expand the collection of fishery effort data. A full description of the Commission's recommendations and justification for measures, as well as NMFS' rationale for measures ultimately proposed is included in the proposed rule (87 FR 41084, July 11, 2022) and is not repeated here.
In Area 2, we are implementing an ownership cap that would restrict an entity to 800 Area 2 traps, effective on May 1, 2025, as proposed, regardless of the status of those traps (actively fished, inactive, and associated with a permit in confirmation of permit history, etc.). We are accepting additional comment on this measure, as discussed below. This action does not place a limit on the number of permits that can be owned. This measure complements the Commission's Area 2 recommendations in Addendum XXI (see
As discussed in greater detail in the proposed rule (87 FR 41084, July 11, 2022), the Commission's goals were to address latent effort and scale the fishery to the size of the lobster stock to allow for potential stock rebuilding, and to preserve the owner/operator nature of the fishery. Our analysis of 2019 permit and trap data indicated that the vast majority (85 percent) of Area 2 entities own a single permit, and thus have a trap allocation of 800 traps or fewer. Thus, as the vast majority of the fishery already complies with this requirement, few negative economic impacts are expected to result from this approved measure, though these entities would be prevented from building up their businesses beyond 800 traps in the future.
Addendum XXI originally included a provision that would allow an entity owning two or more permits (
Based on 2019 permit data, approximately 15 percent of Area 2 entities (5 entities) exceeded the approved ownership cap of 800 traps, due to owning outright, or having an ownership interest in, multiple Federal Area 2 permits. These five entities are a small portion of the fishery and demonstrate that substantial consolidation in the Area 2 fishery has not taken place. As this measure allows entities who exceeded the 800-trap limit as of May 1, 2022, to retain their trap allocations, few negative economic impacts are expected to result from this action, though these entities would be prevented from acquiring additional traps beyond their current allocations in the future. This allowance is entity-specific, and does not transfer with permits if they are sold to a new entity that did not have a trap higher limit on May 1, 2022.
This action does not place limits on the number of permits that an Area 2 entity may own. Entities would be free to own or purchase additional permits, provided that the total trap allocation across those permits does not exceed 800 traps (or the entity-specific allocation for those entities who exceeded the 800-trap limit as of May 1, 2022). Entities with multiple Federal Area 2 permits would be free to determine how to divide their trap allocation across multiple permits and would be free to adjust permit-specific trap allocations using the annual trap transfer program.
During the proposed rule (87 FR 41084, July 11, 2022) comment period, we received several comments that our management partners and industry need additional time to understand these measures, consider them in the current context of the fishery, and provide adequate comment. While we are approving these measures in this action, we are delaying implementation until May 1, 2025, while we accept additional public comments on these measures. Upon consideration of additional comments we receive, we will evaluate the Area 2 and 3 measures in this interim final rule, and, if necessary and appropriate, publish a subsequent rule to address any changes.
This action implements two separate but related measures in Area 3. First, this action reduces the maximum number of traps that could be allocated to a permit in Area 3 (
Based on 2019 permit data, 21 permits have trap allocations that exceed the first-year cap of 1,805 by a total of just over 1,000 traps. In the second year of the reduction to a maximum trap cap of 1,629 traps, 37 permits have trap allocations that exceed the cap, by a total of just over 6,000 traps. By the final year of the reductions to a maximum trap cap of 1,548 traps, 43 permits would have trap allocations that exceed the cap, by just over 9,000 traps. Only the permits that are in excess of the maximum trap cap would be affected by this measure. We expect that some negative economic impacts may result from decreasing the maximum trap cap for permit holders that exceed the ultimate cap of 1,548 traps. We estimated that, at most, a corresponding loss of $600,000 (in 2019 dollars) in collective lost trap value and profit in the first year could be expected by these permit holders, as discussed in greater detail below. As discussed above, these vessel owners would be free to use the trap transfer program to either sell the right to fish with these excess traps to recoup some potential economic losses or, if they own multiple vessels, adjust their trap allocations across their fleet.
Second, as of May 1, 2025, we will implement an aggregate ownership cap, at the entity level, which would continue to allow an entity to accumulate and own as many permits as it desired, but would cap the number of traps an entity could own across permits to the equivalent of five times the maximum trap cap. The aggregate ownership cap would be reduced over three years, in proportion to the maximum trap cap reduction, as summarized in Table 1. This action does not place a limit on the number of permits that can be owned; but limits the total aggregate number of traps that an entity may own across all permits.
As discussed in greater detail in the proposed rule (87 FR 41084, July 11, 2022), the Commission's goals were to address latent effort and scale the fishery to the size of the lobster stock to allow for potential stock rebuilding, and to limit consolidation in the Area 3 fishery. A review of 2019 Area 3 permit and trap allocations by entity reveals that a substantial level of consolidation has not occurred, as only two entities exceed the final aggregate ownership allocation of 7,740 traps. Entities below this limit as of May 1, 2022, would be
As this measure would allow entities who exceeded the ownership cap as of May 1, 2022, to retain their trap allocations, few negative economic impacts are expected to result solely from this ownership cap, though these entities would be prevented from expanding their businesses beyond their current allocations in the future. As discussed above, the implementation of the maximum trap caps may result in some traps being retired from these entities; however, they would be free to use the trap transfer program to either sell traps to recoup some potential economic losses or, if they own multiple vessels, adjust their trap allocations across their fleet.
Given that the annual 2016-2020 trap reductions are complete, as with Area 2, the individual permit cap or trap `banking' provisions of Addendum XXII (see
This action does not place limits on the number of permits that an Area 3 entity may own. Entities would be free to own or purchase additional permits, provided that the total trap allocation across those permits does not exceed the ownership cap in any given year (and final ownership cap of 7,740 traps), and each individual vessel's trap allocation does not exceed the maximum trap cap in any given year (and final maximum trap cap of 1,548 traps). Entities with multiple Federal Area 3 permits would be free to determine how to divide their total trap allocation across multiple permits and would be free to adjust permit-specific trap allocations using the annual trap transfer program.
During the proposed rule comment period, we received several comments that our management partners and industry need additional time to understand these measures, consider them in the current context of the fishery, and provide adequate comment. While we are proceeding with implementation of these measures as proposed on May 1, 2025, we are accepting comment for an additional 60 days through this interim final rule. Upon consideration of additional comments, we will publish a subsequent rule if changes to these measures are determined to be necessary and appropriate. If we make no changes to these measures, we will ensure adequate and appropriate notification of such is provided to the fishing industry in advance of the May 1, 2025, effective date.
We are implementing mandatory electronic harvester reporting requirements for all Federal lobster permit holders and adding the collection of several additional data elements in the electronic form, within 48 hours following the completion of a trip, beginning April 1, 2024. The submission of electronic vessel trip reports (eVTR) is being required that align the reporting requirements for Federal lobster permit holders with the existing reporting requirements for all other fisheries permitted by Greater Atlantic Regional Fisheries Office (GARFO).
This rule also implements the collection of several additional data elements in the electronic form and includes some changes from the proposed rule. In addition to the existing reporting elements of the Federal eVTR, Addendum XXVI (see
While we proposed all new data elements, as recommended, we requested comment on the redundancy of several new data elements. First, we requested comment on the utility of several of these new data elements, as we are able to derive the lobster management area, 10-minute square fished, and trip length from fields that are already on the VTR. Ultimately, we are approving data elements that are new. All of these are: Total number of traps hauled by chart area, number of traps in chart area fished, average number of traps per string hauled in the chart area fished, number of buoy lines in the chart area fished, and total number of buoy lines in the water. To alleviate the reporting burden to industry, we are not implementing or requiring redundant fields (the lobster management area, 10-minute square fished, and trip length) in the Federal eVTR. However, to remain consistent with the data that states are providing to the ACCSP data warehouse from state-level reporting requirements, we intend to derive these data elements from data collected and provide derived data to the ACCSP data warehouse.
While other elements of this rule are set to become effective at the start of the 2025 fishing year, this rule implements mandatory harvester reporting requirements earlier, on April 1, 2024. We recognize that mandating the collection of this data as soon as possible is essential to improve the science and management of the lobster fishery, to understand the co-occurrence of the fishery with protected species, and to support our ability to determine impacts from other marine activities. Further, as discussed in greater detail in the comments and responses below, most comment letters supported proceeding with mandatory harvester requirements on an accelerated timeframe from the Area 2 and 3 requirements. Based on the need for the data and general support for this approach, Federal eVTRs will become required for all Federal American lobster permit holders beginning on April 1, 2024.
Overall economic impacts, as summarized in the accompanying
Ownership caps in Areas 2 and 3 are expected to have minimal impacts, as these measures capture the Area 2 and 3 fisheries as they are prosecuted today in perpetuity. As entities that exceed these ownership caps will be capped at their aggregate level as of May 1, 2022, and will be prohibited from exceeding this level in the future, no entity will lose traps as a result of this measure, and thus will not incur an economic loss. These caps would restrict entities that are at or above the caps from continuing to build up their businesses. Positive impacts can be expected to the larger fishing community, as such an action supports National Standard 8 of the Magnuson-Stevens Fishery Conservation and Management Act, by providing sustained fishery participation at current levels for communities engaged in the Area 2 and 3 fisheries. In addition, implementation of Federal regulations that are mirrored at the state level would avoid administrative and regulatory disconnects that could have occurred if the states and the Federal government made disparate allocative decisions on a single entity. Such a situation would cause confusion for harvesters and enforcement, resulting in an ineffective management program, and avoidance of this situation creates a cost savings. Additional discussion of the costs and benefits can be found in sections 6 and 8.14 of the environmental assessment.
As discussed in greater detail in Section 7.2.2.2 of the environmental assessment accompanying this action, Area 3 maximum trap cap reductions may, at most, result in approximately 10,000 traps being retired from 43 permit holders whose trap allocation exceeds the year 3 maximum trap cap of 1,548 traps. We estimated that, at most, a corresponding loss of $600,000 (in 2019 dollars) in collective lost trap value (based on the 2019 value of traps on the trap transfer market) and profit in the first year could be expected by these permit holders. However, these permit holders would be free to use the trap transfer program to either sell traps to recoup some potential economic losses or, if they own multiple vessels, adjust their trap allocations across their fleet. In addition, implementation of Federal regulations that are mirrored at the state level would avoid administrative and regulatory disconnects that could have occurred if the states and the Federal government made disparate allocative decisions on a single entity. Such a situation would cause confusion for harvesters and enforcement, resulting in an ineffective management program, and avoidance of this situation creates a cost savings. Further, any traps retired from the Area 3 fishery may reduce fishing pressure and aid in rebuilding on the SNE stock, leading to increased future catch by Area 3 permit holders. Additional discussion of the costs and benefits can be found in sections 6 and 8.14 of the environmental assessment.
As discussed in greater detail below in Classification, mandatory electronic harvester reporting is expected to apply to all 2,291 Federal American lobster permits, 2,025 entities, and 1,683 small entities. It is also expected to have a minimal cost with associated benefits. Devices used to complete and submit reports (smartphones, tablets, etc.) are nearly universally used and reporting applications for these devices are available free of charge. Improved spatial resolution of fishery data would result in a better understanding of where fishing activity occurs, which would aid lobster management and assist with understanding the overlap between the fishery and protected species. It would also bring consistency with requirements for other permits, thus minimizing potential confusion about applicable requirements. Additional discussion of the costs and benefits can be found in sections 6 and 8.14 of the environmental assessment. Further, half (approximately 1,500) of all Federal lobster permit holders (see section 6.1.5 of the environmental assessment) are presently required to report to NMFS due to holding permits in other fisheries with mandatory reporting requirements. The remainder of Federal lobster permit holders (approximately 1,400) must, at this time, report to their state. Therefore, this action transitions Federal permit holders who currently report to their state to reporting to NMFS.
This rule also makes several regulatory corrections. We are removing regulations that are no longer necessary because they were time-limited and outdated or have been updated by this action, including:
• Area 1 participation requirements at § 697.4(a)(7)(vi);
• Outer Cape Area participation requirements at § 697.4(a)(7)(vii);
• Area 2 participation requirements at § 697.4(a)(7)(viii);
• Outdated lobster size restrictions at § 697.20(a)(5) and (6); and
• Outdated gear marking requirements at § 697.21(a)(1).
In addition, we are correcting several regulations, including:
• Updating the Greater Atlantic Regional Fisheries Office name and address in several locations;
• Correcting management area coordinates at § 697.18 and § 697.23; and
• Trap transferability requirements at § 697.27(a)(1)(vi), allowing traps to be transferred in any increment.
We published a proposed rule in the
This action did not propose, and does not include, any restrictions on the number of permits that can be owned. When considering the Commission's recommendation and developing these measures, we reviewed Area 2 permit data and were aware that some entities owned multiple permits, often transferring the trap allocation from a secondary permit to mitigate the 2016-2021 traps cuts and retain a full allocation of 800 traps. Thus, this action only regulates the number of traps that can be owned per entity. Entities can determine how best to split traps across their permits to maximize their business operations. Further, these Area 2 measures will not result in NMFS assessing any additional trap reductions on Area 2 entities. Due to the 2016-2021 trap reductions, the vast majority of Area 2 entities hold 800 traps or fewer and, thus, are at or under the limits approved in this action. The Commission recommended that we allow entities that exceeded the 800-trap limit to maintain their trap allocations, but prevent these entities from ownership in additional traps. Thus, this action allows any entity that exceeded the 800-trap limit as of May 1, 2022, to retain their trap allocation as of May 1, 2022, but prevents these entities from owning additional traps. Together, these measures codify the Area 2 fishery, as it exists in 2022, and will not
Finally, a change such as the removal of the trap transfer conservation tax, without concurrent implementation by the states, would create a misalignment in our trap transfer programs and would result in inconsistent individual vessel trap allocations. As we have stated in past actions, particularly our Final Rule (79 FR 19026, April 7, 2014) implementing our Trap Transfer Program, incongruent state and federal management has the potential to undermine effective lobster management. Thus, this action includes no changes to the trap transfer conservation tax.
1. The measures were developed following the 2009 stock assessment, and are no longer based on the best available science;
2. The Area 3 fishery has already undergone a near 25-percent trap reduction;
3. The proposed measures, coupled with regulations to protect the North Atlantic right whale requiring longer trap trawls, will create inefficiencies for industry, including their ability to locate lobster, and will increase the fishery's carbon footprint; and
4. These measures run counter to National Standards 5 and 7.
The commenter is correct that we implemented a 5-year, 5-percent trap reduction, assessed at the permit level, from 2016 to 2020, complementing measures in Addendum XVIII. The Lobster Board developed Addendum XXI shortly after the approval of Addendum XVIII and intended for concurrent implementation, such that Area 3 allocations and the maximum trap cap would be reduced in tandem. Ultimately, Federal implementation of these measures did not proceed as originally conceived. As discussed in greater detail in the response to Comment 6, our outreach materials for the annual trap transfer program notified industry that future regulations may impact trap allocations, and to proceed at their own risk. Any permit holders who chose to rebuild their allocations made short-term business decisions, and were advised of the risks. Thus, these permit holders may have experienced unexpected benefits, but this does not change our obligation under the Atlantic Coastal Fisheries Cooperative Management Act to complement the measures recommended by the Commission.
We recognize that the management landscape has changed in the 10 years since the Commission approved Addendum XXI, including several NMFS actions to promote the recovery of North Atlantic right whales. As discussed in the above comment response, we are delaying implementation of the Area 2 and 3 measures approved in this interim final rule and accepting additional comment on these measures. This will give industry, partner states, and the Commission additional time to understand and formulate comments and recommendations on these measures, in light of recent changes to the fishery.
We disagree that the proposed measures do not comply with National Standards 5 and 7. The proposed measures were developed by the Commission with a goal of scaling the fishery to the smaller size of the Southern New England lobster stock in light of the most recent stock assessment information. Ownership caps and the maximum trap cap reductions, in conjunction with the existing trap transfer program, promote efficiency by allowing participants to regulate their trap allocation or even exit the fishery based on their situation and the economics within the Area-specific fishery. Thus, we are promoting efficiencies in the Area 3 fishery, consistent with National Standard 5, while meeting necessary conservation objectives for the Southern New England lobster stock. In addition, these measures are intended to ensure state and Federal regulations are compatible, minimize confusion by industry participants, enhance compliance, and avoid duplication. The Commission has mandated that the states implement these measures and has similarly requested that NMFS do the same. Compatible measures and coordinated management of the ownership caps also reduces administrative costs to agencies and industry participants, clarify and standardize application procedures, and more effectively quantifies trap fishing effort in the future. Thus, we are minimizing costs and avoiding unnecessary duplication. Failure to complement these recommended measures and unilaterally implement alternative measures would be inappropriate and not consistent with our authority under section 803(b) of the Atlantic Coastal Fisheries Cooperative Management Act (16 U.S.C. 5101
The Area 3 trap measures are intended to scale the fishery in light of the Southern New England lobster stock population. Our analysis indicated that approximately 40 Area 3 permit holders would be affected by the proposed maximum trap cap reductions, with a potential to affect approximately 9,000 traps. We acknowledge that this could result in some negative socio-economic impacts to these permit holders. However, these negative impacts may be mitigated by participating in the annual trap transfer program. At worst, a permit holder could recoup some of their potential losses. At best, permit holders with multiple vessels/permits would have the opportunity to reconfigure their trap allocations across their fleet.
As summarized in other response to comments and in the preamble of this rule, we acknowledge that these measures were recommended by the Commission 10 years ago, and much about the fishery and fishery management landscape has changed in the intervening years. Nevertheless, the Commission, which includes members of industry, supported this rulemaking and the proposed measures, but requested more time to consider the Area 2 and 3 measures in the current context of the fishery. As a result of public comments received, we are approving these measures and delaying implementation for 1 year to accept additional public comment and give industry time to better understand these measures and provide more input.
Since the inception of the trap transfer program, our outreach materials and trap transfer application notified permit holders to proceed with caution when participating in the program. Since we began rulemaking on these addenda in the late 2010s, we have specifically stated in these materials that we were undertaking rulemaking that could affect future trap allocations, and to proceed with transfers at their own risk. Thus, industry has been frequently cautioned about the implications of their individual business decisions. We also note, as we stated in the response to Comment 6, that the lobster management under the Commission is a bottoms-up approach where regulations are recommended to the states and Federal Government by the Commission, which is an entity comprised of a multitude of stakeholders, including members of the fishing industry. The Commission recommended this measure and supported it in its recent commentary.
Subsistence fishing is not within the purpose and need of this action and has not, to date, been incorporated into the Commission's Interstate Fishery Management Plan for American Lobster. Thus, it would be inappropriate for us to implement such a measure as it would be a radical departure from the Lobster Plan and create incompatible state and federal regulations. The ownership and trap cap measures approved in this rule were developed to scale the fishery to the Southern New England lobster stock, and are expected to sufficiently meet this conservation objective, while still providing permit holders flexibility and ways to mitigate these reductions. Eliminating all fishing for this stock, with the exception of subsistence fishing, would not be consistent with the goals and objectives of the Fishery Management Plan.
With regard to the implementation date, we understand the urgent need to begin collecting these data as quickly as possible. However, we must balance that need against the industry's ability to comply with new requirements. Thus, we intend to implement this requirement on April 1, 2024, which will provide industry with the opportunity to understand the requirements and options, receive any necessary training, obtain any technology, acquire a free reporting application, and begin to report.
In addition, we intend to give industry sufficient time to comply with this harvester reporting requirement. We intend to implement this requirement on April 1, 2024, which will provide industry with the opportunity to understand the requirements and options, receive any necessary training, obtain any technology, acquire a free reporting application, and begin to report.
We are implementing the mandatory harvester reporting requirements, Area 2 cap measures, and corrections as proposed. Based on comments requesting additional time to consider the Area 2 and 3 proposed measures, we are approving the Area 3 measures largely as proposed, but with a 1-year delay. Upon consideration of additional comments, we will publish a subsequent rule if changes to these measures are determined to be necessary and appropriate. If we make no changes to these measures, we will ensure adequate and appropriate notification of such is provided to the fishing industry in advance of the May 1, 2025, effective date.
The NMFS Assistant Administrator has determined that this final rule is consistent with the Atlantic Coastal Fisheries Cooperative Management Act, applicable provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law.
This final rule has been determined to be significant for purposes of Executive Order 12866.
A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, and NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of this analysis is available from NMFS (see
This is provided in the preamble to this rule and the proposed rule (87 FR 41084, July 11, 2022) and not repeated here.
No public comments were received pertaining directly to the economic effects of this rule. Comments 2, 5 and 6 (see Comments and Responses) raised the need for additional time to understand the economic impacts of this action, citing that the impacts of this action plus recent actions regulating the lobster fishery will change the economics of the fishery. No specific data or dollar value estimates were provided. Responses to the comments are provided above.
NMFS received no comments on the proposed rule for this action from the Chief Counsel for Advocacy of the Small Business Administration; therefore, no changes were made in this final rule as a result.
As of June 1, 2021, NMFS had issued 2,291 Federal American lobster permits that are potentially regulated by this action. The Area 2-preferred alternative would apply to 131 Federal permits, and the Area 3-preferred alternatives would apply to 82 Federal permits. The reporting requirements preferred alternative would apply to all 2,291 Federal American lobster permits, though many of these permit holders are already subject to electronic trip reporting based on other species permits they hold that require eVTRs.
Each vessel may be individually owned or part of a larger corporate ownership structure and, for RFA purposes, it is the ownership entity that is ultimately regulated by this action. Ownership entities are identified on June 1st of each year based on the list of all permit numbers, for the most recent complete calendar year, that have applied for any type of Greater Atlantic Region Federal fishing permit. The current ownership data set is based on calendar year 2020 permits and contains gross sales associated with those permits for calendar years 2018 through 2020.
For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. The Small Business Administration (SBA) has established size standards for all other major industry sectors in the U.S., including for-hire fishing (NAICS code 487210). These entities are classified as small businesses if combined annual receipts are not in excess of $8.0 million for all its affiliated operations. Similar to permit data, the annual average of the three most recent years (2018-2020) is used in determining annual receipts for fishing and for-hire businesses.
Ownership data collected from permit holders indicates that there are 2,025 distinct business entities that hold at least one Federal permit regulated by this action. All 2,025 business entities identified could be directly regulated by this action. Of these 2,025 entities, 1,685 are commercial fishing entities, 6 are for-hire entities, and 334 did not have revenues (
The Area 2 cap of 800 traps is at, or higher than, most entities' trap allocations, and all entities with trap allocations in excess of the preferred cap will be able to retain their current allocation as of May 1, 2022. Thus, no costs are expected. The Area 3 ownership caps are similarly set higher than most entities' allocations, and all entities in excess of the preferred cap will be able to retain their current allocation. The maximum trap cap reduction may result in the loss of some traps, reducing fishing revenues and profits for fishing businesses. The loss in fishing profit from retired traps is estimated to be between $307,000 and $419,000, assuming a profit margin of 5 percent. For harvester reporting, the GARFO-supported application for eVTRs is free of charge, and most individuals in the fishery own a device which can be used to submit eVTRs. Wage hours are summarized below. We requested comments in the proposed rule on economic impacts of the reporting requirements approved in this rule, including assumptions that impacts are discountable due to the prevalence of smartphones and tablets in society and the fact that reporting applications are free, and that entities are able to cover fixed costs on diminished revenues. No comments were received on the proposed approach.
This action contains new reporting and recordkeeping requirements for Federal American lobster permit holders that would involve costs to vessels to catch lobsters. Vessels would be required to complete a Federal vessel trip report at sea and submit the report electronically to GARFO within 48 hours of returning to port. Costs in terms of burden is estimated to be 7 minutes per report, or 10,065 burden hours total. With a mean hourly wage of $14.49 dollars, total wage burden costs are $155,586 (in 2019 dollars).
This action imposes minimal impacts on small entities. Given the current state of the Area management programs, the implemented measures remain consistent with the Commission's recommendations, but do not consider outdated management measures (
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as this small entity compliance guide was prepared. Copies of the guide and this rule are available upon request from the Greater Atlantic Regional Office (see
This final rule contains a new collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). The collection-of-information requirement in this rule, currently assigned Control Number 0648-0806, relates to the collection under Control Number 0648-0212, “Greater Atlantic Region Logbook Family of Forms” as both collect similar types of information. However, due to multiple concurrent actions revising Control Number 0648-0212, the collection-of-information requirement in this final rule was assigned a temporary Control Number that will later be merged into Control Number 0648-0212. This rule creates new requirements by requiring all Federal lobster permit holders to submit electronic vessel trip reports, including several additional new data elements. Public reporting burden for electronic trip reports is estimated to average 7 minutes (0.117 hours) per individual response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Total annual cost to the public from this collection is estimated to be approximately $156,000 (in 2019 dollars).
We invite the general public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Written comments and recommendations for this information collection should be submitted on the following website:
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 697 is amended as follows:
16 U.S.C. 1501
The revisions and addition read as follows:
(a) * * *
(1)
(7) * * *
(i) It is unlawful for vessels issued a limited access American lobster permit fishing with traps, to retain on board, land, or possess American lobster in or from the management areas specified in § 697.18, unless such fishing vessel has been issued a valid management area designation certificate or valid limited access American lobster permit specifying such management area(s).
(ii) Each owner of a fishing vessel that fishes with traps capable of catching lobster must declare to NMFS in his/her annual application for permit renewal which management areas, as described in § 697.18, the vessel will fish in for lobster with trap gear during that fishing season. A federal lobster permit holder may declare into Lobster Conservation Management Areas 1, 2, 3, 4, 5, and/or the Outer Cape Management Area to fish with traps, only in the following two circumstances:
(A) The NOAA Regional Administrator previously qualified the permit into the requested area as part of the Area 1, 2, 3, 4, 5 and/or Outer Cape Cod Limited Access Program during the initial limited access area qualification process; and/or
(B) The permit holder, even if the permit has not qualified as described in paragraph (a)(7)(ii)(A) of this section, is seeking access to Area 2, 3, and/or the Outer Cape Area based upon ownership of traps acquired as part of the Trap Transfer Program, described in § 697.27, that the NOAA Regional Administrator has previously qualified and allocated under the Area 2, 3, and/or the Outer Cape Cod Limited Access Programs.
(d) * * *
(1) Any lobster trap fished in Federal waters must have a valid Federal lobster trap tag permanently attached to the trap bridge or central cross-member, unless exempt under § 697.26.
(f) * * *
(1) * * *
(i) The applicant has failed to submit a complete application. An application is complete when all requested forms, information, documentation, and fees, if applicable, have been received and the applicant has submitted all applicable reports specified in paragraph (q) of this section.
(q)
(i) Vessel name;
(ii) USCG documentation number (or state registration number, if undocumented);
(iii) Permit number;
(iv) Date/time left port on fishing trip;
(v) Date/time returned from port on fishing trip;
(vi) Trip type (commercial, recreational, party, or charter);
(vii) Number of crew;
(viii) Number of anglers (if a charter or party boat);
(ix) Gear fished;
(x) Lobster trawl/string information;
(A) Total number of trawls/strings in the water;
(B) Average number of pots per trawl/string;
(C) Total number of pots in the water;
(xi) Entrance (ring/hoop) size;
(xii) Chart area fished, based on the location of the start of haul back;
(xiii) Latitude/longitude where the majority of fishing effort occurred;
(xiv) Average depth where the majority of fishing effort occurred;
(xv) Total number of strings hauled per chart area per trip;
(xvi) Average soak time per trawl/string;
(xvii) Hail weight, in pounds (or count of individual fish, if a party or charter vessel), by species, of all species, or parts of species;
(xviii) Dealer permit number;
(xix) Dealer name;
(xx) Date sold, port and state landed; and
(xxi) Vessel operator's name, signature, and operator's permit number (if applicable).
(xxii) Total number of traps hauled by chart area;
(xxiii) Number of traps in chart area fished;
(xxiv) Average number of traps per string hauled in the chart area fished;
(xxv) Number of buoy lines in the chart area fished; and
(xxvi) Total number of buoy lines in the water.
(2)
(3)
(4)
(ii) For the purposes of paragraph (q)(4)(i) of this section, the date when fish are offloaded from a commercial vessel will establish the conclusion of a commercial trip.
(iii) For the purposes of paragraph (q)(4)(i) of this section, the date a charter/party vessel enters port will establish the conclusion of a for-hire trip.
(n) * * *
(1) * * *
(ii) * * *
(B) When purchasing or receiving fish from a vessel landing in a port located outside of the Greater Atlantic Region (Maine, New Hampshire, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, Delaware, Virginia and North Carolina), only purchases or receipts of species managed by the Greater Atlantic Region under this part (American lobster or Jonah crab), and part 648 of this chapter, must be reported. Other reporting requirements may apply to those species not managed by the Greater Atlantic Region, which are not affected by this paragraph (n); and
The following lobster management areas are established for purposes of implementing the management measures specified in this part. (A copy of a chart showing the American lobster EEZ management areas is available upon request to the Office of the Regional Administrator, NMFS, 55 Great Republic Drive, Gloucester, MA 01930.)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(c)
(2) Effective May 1, 2026, the Area 3 trap limit is 1,629 traps. Federally permitted lobster fishing vessels may only fish with traps that have been previously qualified and allocated into Area 3 by the Regional Administrator, as part of the Federal Area 3 Limited Access Program. This allocation may be modified by trap cuts and/or trap transfers, but in no case shall the allocation exceed the trap limit.
(3) Effective May 1, 2027, the Area 3 trap limit is 1,548 traps. Federally permitted lobster fishing vessels may only fish with traps that have been previously qualified and allocated into Area 3 by the Regional Administrator, as part of the Federal Area 3 Limited Access Program. This allocation may be modified by trap cuts and/or trap transfers, but in no case shall the allocation exceed the trap limit.
(m)
(2) Area 2—Effective May 1, 2025, an entity's Area 2 ownership cap shall be based upon the entity's aggregate trap allocation as of May 1, 2022 as follows:
(i) Any entity who had a cumulative Area 2 trap allocation at or below 800 traps as of May 1, 2022 shall be restricted to an 800 cumulative trap maximum for all permits with an Area 2 trap allocation. No such entity may possess Area 2 trap allocations in excess of 800 traps.
(ii) Any entity who had a cumulative Area 2 trap allocation above 800 traps as of May 1, 2022 may retain their allocation at that May 1 2022 level but shall be restricted from expanding this cumulative Area 2 trap allocation above the May 1, 2022 trap allocation level. No such entity may possess Area 2 trap allocations in excess of their May 1, 2022 level. This higher allocation is allowed only for the duration of the entity's ownership of Area 2 lobster permits, and is forfeited once ownership is lost, sold, or transferred.
(iii) Vessel owners with an Area 2 lobster permit in confirmation of permit history, and in compliance with the ownership restrictions in paragraph (m)(1) of this section, are eligible to renew such permits(s) and/or confirmation(s) of permit history, but will be bound by the trap limits in paragraphs (m)(2)(i) or (m)(2)(ii) of this section.
(3) Area 3. (i) Effective May 1, 2025, the Area 3 ownership cap shall be restricted to no more than 9,025 allocated traps. An entity is prohibited from possessing Area 3 trap allocations in excess of 9,025 traps.
(ii) Effective May 1, 2026, the Area 3 ownership cap shall be restricted to no more than 8,145 allocated traps. An entity is prohibited from possessing Area 3 trap allocations in excess of 8,145 traps.
(iii) Effective May 1, 2027, the Area 3 ownership cap shall be restricted to no more than 7,740 allocated traps. An entity is prohibited from possessing
(iv) Vessel owners with an Area 3 lobster permit in confirmation of permit history, and in compliance with the ownership restrictions in paragraph (m)(1) of this section, are eligible to renew such permits(s) and/or confirmation(s) of permit history, but will be bound by the trap limits in paragraphs (m)(3)(i) through (iii) of this section.
(v) Paragraphs (m)(3)(i) through (iii) of this section do not apply to an entity's Area 3 lobster trap permits and/or confirmations of permit history if that entity's trap allocation exceeded 7,740 traps as of May 1, 2022. The trap allocations of all such entities will be capped at their May 1, 2022 trap allocation. This higher allocation is allowed only for the duration of the entity's ownership of Area 2 lobster permits, and is forfeited once ownership is lost, sold, or transferred.
(a) * * *
(5) The minimum carapace length for all American lobsters harvested in or from the Offshore Management Area 3 is 3
(6) The minimum carapace length for all American lobsters landed, harvested, or possessed by vessels issued a Federal limited access American lobster permit fishing in or electing to fish in EEZ Offshore Management Area 3 is 3
(7) No person may ship, transport, offer for sale, sell, or purchase, in interstate or foreign commerce, any whole live American lobster that is smaller than the minimum size specified in paragraph (a) of this section.
The revisions are to read as follows:
(a) * * *
(1)
(i) A number assigned by the Regional Administrator; or
(ii) Whatever positive identification marking is required by the vessel's home-port state.
(b) * * *
(4) * * *
(i)
(ii)
(iii)
(c) * * *
(3) All American lobster traps deployed or possessed in the EEZ Offshore Management Area 3, or deployed or possessed by a person on or from a vessel issued a Federal limited access American lobster permit fishing in or electing to fish in the EEZ Offshore Management Area 3, must include either of the following escape vents in the parlor section of the trap, located in such a manner that it will not be blocked or obstructed by any portion of the trap, associated gear, or the sea floor in normal use:
(i) A rectangular portal with an unobstructed opening not less than 2
(ii) Two circular portals with unobstructed openings not less than 2
(4) The Regional Administrator may, at the request of, or after consultation with, the Commission, approve and specify, through a technical amendment, any other type of acceptable escape vent that the Regional Administrator finds to be consistent with paragraph (c) of this section.
(e)
(2)
(f)
(b) * * *
(2)
(c) * * *
(2)
(d) * * *
(2)
(e) * * *
(2)
A person or vessel holding a valid permit or license issued by the State of Maine that lawfully permits that person to engage in commercial fishing for American lobster may, with the approval of the State of Maine, engage in commercial fishing for American lobsters in the following areas designated as EEZ, if such fishing is conducted in such waters in accordance with all other applicable Federal and State regulations:
(a) West of Monhegan Island in the Federal waters located north of the line from 43°42.17′ N lat., 69°34.27′ W long. to 43°42.25′ N lat., 69°19.30′ W long.
(b) East of Monhegan Island in the federal waters located northwest of the line from 43°44′ N lat., 69°15.08′ W long. to 43°48.17′ N lat., 69°8.02′ W long.
(c) South of Vinalhaven in the federal waters located west of the line from 43°52.61′ N lat., 68°40.00′ W long. to 43°58.12′ N lat., 68°32.95′ W long.
(d) South of Boris Bubert Island in the federal waters located northwest of the line from 44°19.27′ N lat., 67°49.50′ W long. to 44°23.67′ N lat., 67°40.50′ W long.
(a) * * *
(2) * * *
(vi) Trap allocations may be transferred in any increment.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notification of ex parte communication; request for comments.
On April 11, 2023, the U.S. Department of Energy (DOE) published a notice of proposed rulemaking (NOPR), in which DOE proposed regulations regarding procedures for calculating a value for the petroleum equivalent fuel economy of electric vehicles (EVs) for use in the Corporate Average Fuel Economy (CAFE) program administered by the Department of Transportation (DOT). In their comments to DOE's NOPR, the Alliance for Automotive Innovation (Auto Innovators) raised the issue of the ability of manufacturers to comply with the proposed PEF in 2027 due to vehicle design cycles. DOE is providing notice that it sent follow-up letters to member companies of the Auto Innovators inviting the companies to provide information to clarify the challenges to implementing the revised standard to apply to model year (MY) 2027-2031 vehicles as proposed. In this notice and request for comment, DOE requests additional comment on the questions posed to the Auto Innovator members providing a similar opportunity to all stakeholders.
The comment period for the NOPR that published on April 11, 2023, closed on June 12, 2023 (88 FR 21525). DOE will accept comments responding to this document on or before October 17, 2023.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
No telefacsimilies (faxes) will be accepted. Hand delivered comments may be accepted upon request. For detailed instructions on submitting comments and additional information on the rulemaking process, see Public Participation section for details.
The docket web page can be found at the
Mr. Kevin Stork, U.S. Department of Energy, Vehicle Technologies Office, EE-3V, 1000 Independence Avenue SW, Washington, DC 20585. Telephone: (202) 586-8306. Email:
Ms. Laura Zuber, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (240) 306-7651. Email:
On April 11, 2023, DOE proposed to update the petroleum-equivalency factor used to calculate the fuel economy of electric vehicles (EVs). 88 FR 21525. DOE proposed that the revised PEF value apply to MY 2027 vehicles. 88 FR 21531. DOE noted that the proposed PEF value would cover the same vehicles covered by the NHTSA CAFE regulation. In the NOPR, DOE requested comments on this proposed approach.
Several commenters submitted comments in response to this specific request. Specifically, Auto Innovators raised concerns related to the proposed effective date.
On September 14, 2023, DOE sent letters to member companies of Auto Innovators inviting them to clarify comments regarding the effective date.
DOE is taking public comment on the same two questions that DOE posed to the Auto Innovators:
1. Identify specific situations where there is a risk that an automaker would
2. Provide information, data, and associated analysis detailing specific challenges regarding to lead time.
DOE will accept data and information responding to this document, but no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the response itself or in any documents attached to your response. Any information that you do not want to be publicly viewable should not be included in your response, nor in any document attached to your response. Persons viewing responses will see only first and last names, organization names, correspondence containing responses, and any documents submitted with the responses.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit responses, data, documents, and other information to DOE. If you submit via postal mail please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (“faxes”) will be accepted.
Responses, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
It is DOE's policy that all responses may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
This document of the Department of Energy was signed on September 26, 2023, by Jeffrey Marootian, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Supplemental notice of proposed rulemaking (SNPRM); Extension of comment period.
This action extends the comment period for a SNPRM titled “Interior Parts and Components Fire Protection for Transport Category Airplanes” that was published on August 17, 2023. In that document, the FAA provided additional information on its proposed elimination of a smoke emissions testing requirement. The FAA also changed its calculations related to the proposed rule's costs and benefits. The FAA is extending the comment period closing date to allow commenters
The comment period for the SNPRM published on August 17, 2023, at 88 FR 55941, is extended. Comments should be received on or before November 30, 2023.
Send comments identified by docket number FAA-2019-0491 using any of the following methods:
•
•
•
•
Jeff Gardlin, AIR-20, Office of Senior Technical Experts, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, WA 98198; telephone (206) 231-3146; email
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. 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 send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
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 agency may change this proposal in light of the comments it receives.
An electronic copy of rulemaking documents may be obtained from the internet by—
1. Searching the Federal eRulemaking Portal at
2. Visiting the FAA's Regulations and Policies web page at
3. Accessing the Government Printing Office's web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the internet through the Federal eRulemaking Portal referenced in item (1) above.
On August 17, 2023, the FAA published a SNPRM titled “Interior Parts and Components Fire Protection for Transport Category Airplanes” in the
Since publication, the FAA has received five requests to extend the comment period by an additional one hundred and twenty (120) days. The commenters requested more time to review the proposed rule and develop comments and recommendations.
The FAA grants the petitioners' request for an extension of the comment period. The FAA recognizes the importance of the proposed rule and that an extension would help commenters craft complete and thoughtful responses. However, the FAA believes that an additional sixty (60) days provides sufficient opportunity to review the SNPRM and provide comments. With this extension, the comment period will now close on November 30, 2023. This will provide the public with a total of one hundred and five (105) days to conduct its review and submit comments to the docket.
The FAA will not grant any additional requests to further extend the comment period for this rulemaking.
In accordance with § 11.47(c) of Title 14, Code of Federal Regulations, the FAA has reviewed the petitions for extension of the comment period for this notice. The petitioners have shown a substantive interest in the proposed policy and good cause for the extension of the comment period. The FAA has determined that an extension of the comment period for an additional sixty (60) days to November 30, 2023 is consistent with the public interest, and that good cause exists for taking this action.
Accordingly, the comment period for Notice No. 23-12 is extended until November 30, 2023.
Issued under authority provided by 49 U.S.C. 106(f), 44701(a), and 44703 in Washington, DC.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Airbus SAS A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). This proposed AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference (IBR). The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by November 16, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For material that is proposed for IBR in this NPRM, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
Dan Rodina, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3225; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Dan Rodina, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3225; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2023-0091, dated May 5, 2023 (EASA AD 2023-0091) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A300-600 series airplanes. The MCAI states that new or more restrictive airworthiness limitations have been developed. The FAA is proposing this AD to prevent reduced structural integrity of the airplane.
EASA AD 2023-0091 specifies that it requires certain tasks (limitations) already in Airbus A300-600 ALS Part 2 DT-ALI, Revision 03, that is required by EASA AD 2019-0090, dated April 26, 2019 (which corresponds to FAA AD 2019-21-01, Amendment 39-19767 (84 FR 56935, October 24, 2019) (AD 2019-21-01)), and that incorporation of EASA AD 2023-0091 invalidates (terminates) prior instructions for those tasks. This proposed AD would therefore terminate the limitations required by paragraph (g) of AD 2019-21-01, for the tasks identified in the service information referred to in EASA AD 2023-0091 only.
The FAA is proposing this AD to address fatigue cracking, damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane. You may examine the MCAI in the AD docket at
The FAA reviewed EASA AD 2023-0091, which specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, which are specified in EASA AD 2023-0091 described previously, as incorporated by reference. Any differences with EASA AD 2023-0091 are identified as exceptions in the regulatory text of this proposed AD.
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2023-0091 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2023-0091 through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0091 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0091. Service information required EASA AD 2023-0091 for compliance will be available at
The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.
For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).
The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions (
The FAA estimates that this AD, if adopted as proposed, would affect 128 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA has determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by November 16, 2023.
This AD affects AD 2019-21-01, Amendment 39-19767 (84 FR 56935, October 24, 2019) (AD 2019-21-01).
This AD applies to all Airbus SAS airplanes identified in paragraphs (c)(1) through (4) of this AD, certificated in any category.
(1) Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes.
(2) Model A300 B4-605R and B4-622R airplanes.
(3) Model A300 F4-605R and F4-622R airplanes.
(4) Model A300 C4-605R Variant F airplanes.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is issuing this AD to address fatigue cracking, damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2023-0091, dated May 5, 2023 (EASA AD 2023-0091).
(1) This AD does not adopt the requirements specified in paragraphs (1) and (2) of EASA AD 2023-0091.
(2) Paragraph (3) of EASA AD 2023-0091 specifies revising “the approved AMP” within 12 months after its effective date, but this AD requires revising the existing maintenance or inspection program, as applicable, within 90 days after the effective date of this AD.
(3) The initial compliance time for doing the tasks specified in paragraph (3) of EASA 2023-0091 is at the applicable “associated thresholds” as incorporated by the requirements of paragraph (3) of EASA AD 2023-0091, or within 90 days after the effective date of this AD, whichever occurs later.
(4) This AD does not adopt the provisions specified in paragraph (4) of EASA AD 2023-0091.
(5) This AD does not adopt the “Remarks” section of EASA AD 2023-0091.
After the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Accomplishing the actions required by this AD terminates the corresponding requirements of AD 2019-21-01 for the tasks identified in the service information referenced in EASA AD 2023-0091 only.
The following provisions also apply to this AD:
(1)
(2)
For more information about this AD, contact Dan Rodina, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3225; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2023-0091, dated May 5, 2023.
(ii) [Reserved]
(3) For EASA AD 2023-0091, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Department of State.
Proposed rule.
The Department of State (“Department”) is proposing to amend the Schedule of Fees for Consular Services (“Schedule”) to reduce the current fee for Administrative Processing of a Request for a Certificate of Loss of Nationality of the United States (CLN) from $2,350 to $450.
The Department of State will accept comments until November 1, 2023.
Interested parties may submit comments to the Department by any of the following methods:
*
*
All comments should include the commenter's name, the organization the commenter represents (if applicable), and the commenter's address. If the Department is unable to read your comment for any reason, and cannot contact you for clarification, the Department may not be able to consider your comment. After the conclusion of the comment period, the Department will publish a final rule that will address relevant comments as expeditiously as possible.
Johanna Cruz, Management Analyst, Office of the Comptroller, Bureau of Consular Affairs, Department of State; phone: 202-485-8915, email:
The proposed rule makes changes to the Department of State's Schedule of Fees for Consular Services by reducing the fee for Item #8, Administrative Processing of Request for Certificate of Loss of Nationality of the United States (CLN), from $2,350 to $450. The fee for administrative processing of a CLN (referred to as the “fee for CLN services” throughout this rulemaking) applies to U.S. nationals (
The Department of State derives the authority to set fees based on the cost of the consular services it provides, and to charge those fees from the general user charges statute, 31 U.S.C. 9701.
OMB Circular A-25 states that it is the objective of the United States Government to “(a) ensure that each service, sale, or use of Government goods or resources provided by an agency to specific recipients be self-sustaining; [and] (b) promote efficient allocation of the Nation's resources by establishing charges for special benefits provided to the recipient that are at least as great as costs to the Government of providing the special benefits . . .” OMB Circular A-25, 5(a)-(b);
The Government Accountability Office (GAO) defines ABC as a “set of accounting methods used to identify and describe costs and required resources for activities within processes.” Organizations can use the same staff and resources (computer equipment, production facilities, etc.) to produce multiple products or services; therefore, ABC models seek to identify and assign costs to processes and activities and then to individual products and services through the identification of key cost drivers referred to as “resource drivers” and “activity drivers.” The goal is to proportionally and accurately distribute costs. ABC models require financial and accounting analysis and modeling skills combined with a detailed understanding of an organization's business processes. SFFAS Statement #4 provides a detailed discussion of the use of cost accounting by the U.S. Government.
The ABC approach focuses on the activities required to produce a particular service or product and uses resource drivers to assign costs through activities and activity drivers to assign costs from activities to services. In the context of the work of the Department's Bureau of Consular Affairs (CA), resource drivers assign costs (resources including materials, supplies, and labor utilized in the production or delivery of services and products) to activities using business rules that reflect the operational reality of CA and the data available from consular systems, surveys, and internal records. Most resource drivers are based on time spent on each activity. Activity drivers assign the cost of consular activities to the services CA provides. Most activity drivers are based on volumes.
Processing a U.S. citizen's request for a CLN based on the performance of a potentially expatriating act provided by statute has always been extremely costly for the Department, requiring consular officers and employees overseas, as well as Bureau of Consular Affairs employees domestically, to spend substantial time accepting, processing, and adjudicating these requests.
A fee for processing a request for a CLN under INA 349(a)(5) (taking the oath of renunciation before a U.S. diplomatic or consular officer abroad) was first implemented in 2010. The fee was set at $450, which at that time represented less than 25% of the cost to the U.S. Government. 75 FR 36529. The Department set the fee below cost “in order to lessen the impact on those who need this service and not discourage the utilization of the service.” 75 FR 36529. That decision was consistent with the approach taken with respect to certain other fees the Department has discretion to set below cost, including those provided to U.S. citizens in connection with applications for a Consular Report of Birth Abroad, emergency services, documentary services, and death and estate services. The Department's estimate of the level at which U.S. citizens will not be deterred from taking advantage of the service was based on its extensive consultations with experienced consular officers and senior Department managers. 75 FR 36527.
Subsequently, the number of requests for a CLN increased dramatically. During the period the $450 fee was in place, the demand for CLNs jumped from 956 in 2010 to 3,436 in 2014, an approximately 360-fold increase. The dramatic increase in demand meant that far more consular officer time and resources were consumed providing CLN services. As a result, the Department made the decision to set the fee at cost. In 2014, the Department issued an interim final rule raising the fee from $450 to $2,350, as determined by the results of the 2010-2014 Cost of Service Model (CoSM), which incorporated improvements that better captured the actual costs to the U.S. Government of providing consular services overseas. 79 FR 51251. The rule was finalized in 2015. 80 FR 51465.
At the time the fee was increased, the Department received approximately two dozen comments suggesting that the new fee was too costly and that it therefore acted as a deterrent to renunciation.
In the years since the fee was increased, members of the public have continued to raise concerns about the cost of the fee and the impact of the fee on their ability to renounce their citizenship. While there is no legal requirement for individuals to declare their motivation for renouncing U.S. citizenship, anecdotal evidence suggests that difficulties due at least in part to stricter financial reporting requirements imposed by the Foreign Account Tax Compliance Act (FATCA), Public Law 111-147, on foreign financial institutions with whom U.S. nationals have an account or accounts may well be a factor.
After significant deliberation, taking into account both the affected public's concerns regarding the cost of the fee and the not insignificant anecdotal evidence regarding the difficulties many U.S. nationals residing abroad are encountering at least in part because of FATCA, the Department has made a policy decision to help alleviate at least the cost burden for those individuals who decide for whatever reason to request CLN services by returning to the below-cost fee of $450. Although the prior fee of $450 represents a fraction of the cost of providing CLN services, this change will better align the fee for CLN services with other fees for services provided to U.S. citizens abroad, including, for example, applications for a Consular Report of Birth Abroad, which all are set significantly below cost, even as the costs of providing these services have fluctuated over time.
The Department reviews its Cost of Service Model annually, to calculate the cost of providing all services, including CLN services, applying its standard ABC methodology. If, in the future, the results of the CoSM indicate that the Department ought to reevaluate its approach to the fee for CLN services and/or other services provided to U.S. citizens that are set below cost, the Department will engage its experienced consular officers and senior Department managers to help determine the appropriate level at which to set the fee, balancing the need for the U.S. Government to recoup its costs with the need to charge a fee for these services that does not deter individuals from seeking them.
This proposed fee change applies to all services included under “Administrative Processing of Request for Certificate of Loss of Nationality” on the Department's Schedule of Fees for Consular Services. 22 CFR 22.1 Item 8. That item lists services to U.S. nationals (
The Department is publishing this rulemaking as a proposed rule, with a 30-day provision for public comments. The Department believes that a 30-day comment period provides the public sufficient opportunity to meaningfully review the proposed rule and generate informed comments on its text. The proposed rule involves only one fee, and is not lengthy, technical, and/or complex. Moreover, the Department is engaging in this rulemaking in response to public concerns that already have been raised. A 30-day comment period will enable the Department to complete rulemaking expeditiously, which will facilitate implementation of a change that will benefit applicants seeking CLN services.
The Department has reviewed this proposed rule and, by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities as defined in 5 U.S.C. 601(6).
This rulemaking will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501-1504.
The Department has reviewed this proposed rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866, as amended by Executive Order 14094, and Executive Order 13563, and affirms that this regulation is consistent with the guidance therein. The Office of Management and Budget has designated this rulemaking as significant under E.O. 12866.
Details of the changes to the Schedule of Fee are as follows:
This rulemaking will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this proposed rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.
The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian Tribal Governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.
This rulemaking does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act.
Consular services, Fees.
Accordingly, for the reasons stated in the preamble, 22 CFR part 22 is proposed to be amended as follows:
8 U.S.C. 1101 note, 1153 note, 1157 note, 1183a note, 1184(c)(12), 1201(c), 1351, 1351 note, 1713, 1714, 1714 note; 10 U.S.C. 2602(c); 22 U.S.C. 214, 214 note, 1475e, 2504(h), 2651a, 4206, 4215, 4219, 6551; 31 U.S.C. 9701; E.O. 10718, 22 FR 4632, 3 CFR, 1954-1958 Comp., p. 382; E.O. 11295, 31 FR 10603, 3 CFR, 1966-1970 Comp., p. 570.
The following table sets forth the fees for the following categories listed on the U.S. Department of State's Schedule of Fees for Consular Services:
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations that would provide guidance on how taxpayers will report liability for the excise tax imposed on manufacturers, producers, or importers of certain designated drugs. The proposed regulations affect manufacturers, producers, and importers of designated drugs that sell such drugs during certain statutory periods. The proposed regulations also
Written or electronic comments and requests for a public hearing must be received by December 1, 2023. Requests for a public hearing must be submitted as prescribed in the “Comments and Requests for a Public Hearing” section.
Commenters are strongly encouraged to submit public comments electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, contact Jacob W. Peeples, James S. Williford, or Michael H. Beker at (202) 317-6855 (not a toll-free number); concerning the submission of comments and/or requests for a public hearing, contact Vivian Hayes by phone at (202) 317-5306 (not a toll-free number) or by email at
This document contains proposed regulations that would amend the Excise Tax Procedural Regulations (26 CFR part 40) and add a new part 47 to 26 CFR chapter 1 to contain the “Designated Drugs Excise Tax Regulations
Section 5000D, added to chapter 50A of the Code by section 11003 of Public Law 117-169, 136 Stat. 1818 (August 16, 2022), commonly known as the Inflation Reduction Act of 2022 (IRA), imposes an excise tax on the sale by the manufacturer, producer, or importer (taxpayer) of any designated drug during a day that falls within a period described in section 5000D(b). Because chapter 50A is a new chapter of the Code, the existing regulations that prescribe the procedural rules applicable to most excise taxes do not apply to chapter 50A.
Notice 2023-52 (2023-35 I.R.B. 650) announces that the Treasury Department and the IRS intend to propose regulations addressing substantive and procedural issues related to the section 5000D tax. These proposed regulations address return filing and other procedural requirements related to the section 5000D tax as set forth in Notice 2023-52. The Treasury Department and the IRS will issue a separate notice of proposed rulemaking to address substantive issues related to the section 5000D tax.
These proposed regulations would apply the Excise Tax Procedural Regulations in 26 CFR part 40 to excise taxes imposed by chapter 50A of the Code (and thus to the section 5000D tax), with some limited exceptions.
Section 40.0-1(a) provides generally that the regulations in part 40 set forth administrative rules relating to the excise taxes imposed by chapters 31 through 34, 36, 38, 39, and 49 of the Code. Proposed § 40.0-1(a) would amend that provision by adding chapter 50A of the Code to the list of Code chapters subject to the part 40 regulations.
Section 40.6011(a)-1(a)(1) provides that the return of tax to which part 40 applies must be made on Form 720,
Proposed § 40.6011(a)-1(d) would provide that a return that reports liability imposed by section 5000D must be made for a period of one calendar quarter, and that a return must be filed for each calendar quarter in which liability for the section 5000D tax is incurred. Therefore, under these proposed regulations, taxpayers would be required to report any section 5000D tax liability on Form 720; however, taxpayers would not be required to file subsequent returns for quarters in which they incur no section 5000D tax liability.
Section 40.6302(c)-1(a) provides that except as provided by statute or by § 40.6302(c)-1(e), each person required under § 40.6011(a)-1(a)(2) to file a quarterly return must make a deposit of tax for each semimonthly period (as defined in § 40.0-1(c)) in which tax liability is incurred. Section 40.6302(c)-1(e) provides a list of taxes that are excepted from the semimonthly deposit requirement.
Proposed § 40.6302(c)-1(e)(1)(vi) would add the section 5000D tax to the list of taxes that are excepted from the semimonthly deposit requirement. Therefore, under these proposed regulations, taxpayers with section 5000D tax liability would not be required to make semimonthly deposits of the section 5000D tax.
In addition to proposing the addition of a new part 47 to 26 CFR chapter 1, proposed § 47.5000D-1 would provide an introductory provision under part 47 that would designate 26 CFR part 47 as the “Designated Drugs Excise Tax Regulations.”
These proposed regulations, once adopted as final regulations in a Treasury Decision published in the
Pursuant to the Memorandum of Agreement, Review of Treasury Regulations under Executive Order 12866 (June 9, 2023), tax regulatory actions issued by the IRS are not subject to the requirements of section 6 of Executive Order 12866, as amended. Therefore, a regulatory impact assessment is not required.
The collections of information contained within these proposed regulations will be submitted to the Office of Management and Budget (OMB) for review in accordance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3507(d)).
Whether the proposed collections of information are necessary for the proper performance of the functions of the IRS, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed collections of information (see below);
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the proposed collections of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
The collections of information in these proposed regulations relate to reporting and recordkeeping requirements that will allow section 5000D taxpayers to meet their tax reporting obligations. The collections of information would generally be used by the IRS for tax compliance purposes and by taxpayers to facilitate proper tax reporting and compliance. The reporting and recordkeeping requirements are covered within the form and instructions for Form 720. IRS is seeking OMB approval on the statutorily required revisions to the form. Therefore, collection requirements will be submitted to OMB under control number 1545-0023.
Because the section 5000D tax is a new tax that has never been reported to the IRS, the Treasury Department and the IRS do not have historical data on the number of affected taxpayers. The Centers for Medicare and Medicaid Services (CMS) has selected 10 drugs for price negotiation for initial price applicability year 2026. CMS will select for negotiation a limited number of drugs for each initial price applicability year after that, as outlined in the IRA. Further, manufacturers, producers, and importers of such drugs may or may not become subject to section 5000D tax liability. Based on the foregoing, the IRS estimates that there will be between 0 and 50 taxpayers during the next 3 years.
If a taxpayer has a section 5000D tax liability, it would be required to file Form 720 to report such liability. Form 720 is a quarterly return. A taxpayer would only be required to file Form 720 during calendar quarters in which the taxpayer has a section 5000D tax liability. Therefore, a taxpayer that has a section 5000D tax liability in one calendar quarter but not in subsequent calendar quarters would only be required to file one Form 720.
The respondents with regard to the section 5000D tax are manufacturers, producers, and importers of certain drugs. The Treasury Department and the IRS estimate the annual burden of the collections of information as follows (these estimates, which are for PRA purposes only, are based on the high end of the range of possible taxpayers and the high end of the range of the frequency of responses, in which a taxpayer would have tax liability in all four calendar quarters):
A Federal 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 control number assigned by OMB. Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by section 6103.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these proposed regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that the section 5000D tax is imposed only when certain drug manufacturers, producers, and importers sell certain drugs during periods described in section 5000D(b). The periods described in section 5000D(b) relate to benchmarks in the Medicare Drug Price Negotiation Program, which involves only certain drugs with high Medicare expenditures. If any section 5000D tax liability arises, the taxpayers will primarily not be small entities. As noted earlier, data is not readily available about the number of taxpayers affected, but the number is likely to be limited, in part due to the limited number of drugs selected for the Drug Price Negotiation Program in any particular year. In addition, these proposed regulations will assist taxpayers in meeting their tax reporting obligations by providing clarity on how to report section 5000D tax liability, which will make it easier for taxpayers to comply with section 5000D. Therefore, these proposed regulations will not create additional obligations for, or impose a significant economic impact on, small entities, and a regulatory flexibility analysis under the Regulatory Flexibility Act is not required. Notwithstanding this certification, the Treasury Department and the IRS welcome comments on the impact of these proposed regulations on small entities.
Pursuant to section 7805(f) of the Code, these proposed regulations have been submitted to the Chief Counsel for the Office of Advocacy of the Small Business Administration for comment on its impact on small business.
Section 202 of the Unfunded Mandates Reform Act of 1995 requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a State, local, or Tribal government, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. These proposed regulations do not include any Federal mandate that may result in expenditures by State, local, or Tribal governments, or
Executive Order 13132 (Federalism) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on State and local governments, and is not required by statute, or preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. These proposed regulations do not have federalism implications, do not impose substantial direct compliance costs on State and local governments, and do not preempt State law within the meaning of the Executive order.
The IRS Notice cited in this preamble is published in the Internal Revenue Bulletin (or Cumulative Bulletin) and is available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at
Before these proposed amendments to the regulations are adopted as final regulations, consideration will be given to comments that are submitted timely to the IRS as prescribed in the preamble under the
A public hearing will be scheduled if requested in writing by any person who timely submits electronic or written comments. Requests for a public hearing are also encouraged to be made electronically. If a public hearing is scheduled, notice of the date and time for the public hearing will be published in the
The principal author of these regulations is Jacob W. Peeples of the Office of the Associate Chief Counsel (Passthroughs & Special Industries). However, other personnel from the Treasury Department and the IRS participated in their development.
Excise taxes, Reporting and recordkeeping requirements.
Excise taxes.
Accordingly, the Treasury Department and the IRS propose to amend 26 CFR chapter I, subchapter D, as follows:
26 U.S.C. 7805.
(a)
(e)
(2)
(3)
The revision and additions read as follows:
(a) * * *
(2) * * *
(i) * * * Except as provided in paragraphs (b) through (d) of this section, the return must be made for a period of one calendar quarter. * * *
(d)
(e)
(2)
(3)
The revisions and addition read as follows:
(e) * * *
(1) * * *
(iv) Sections 4375 and 4376 (relating to fees on health insurance policies and self-insured insurance plans);
(v) Section 5000B (relating to indoor tanning services); and
(vi) Section 5000D (relating to designated drugs).
(f)
(2)
26 U.S.C. 7805.
Section 47.5000D-1 also issued under 26 U.S.C. 5000D.
This section lists the table of contents for §§ 47.5000D-1 through 47.5000D-3.
(a) In general.
(b) Applicability date.
(a)
(b)
Forest Service, Agriculture (USDA).
Proposed rule; request for public comment.
The Forest Service (Forest Service or Agency), United States Department of Agriculture, is proposing to update its special uses regulations, consistent with the requirement in the Cabin Fee Act, to provide for suspension or temporary reduction of the land use fee for a recreation residence permit if access to, or occupancy of, the recreation residence is significantly restricted.
Comments on the proposed rule must be received in writing by December 1, 2023.
Comments, identified by RIN 0596-AD56, may be submitted via one of the following methods:
•
•
•
Comments should be confined to issues pertinent to the proposed rule; should explain the reasons for any recommended changes; and should reference the specific section and wording being addressed, where possible. All timely comments, including names and addresses when provided, will be placed in the record and will be available for public review and copying. The public may review comments at the Office of the Director, Lands, Minerals, and Geology Management Staff, Sidney R. Yates Federal Building, 1st Floor Southeast, 201 14th Street SW, Washington, DC, on business days between 8:30 a.m. and 4:00 p.m. Visitors are encouraged to call ahead at (202) 205-3563 to facilitate entry into the building. Comments may also be viewed on the Federal eRulemaking Portal at
Brandon Smith, Lands, Minerals, and Geology Management Staff, (406) 491-1605 or
The Forest Service administers the use and occupancy of National Forest System lands through issuance of special use authorizations. The Forest Service administers approximately 74,000 special use authorizations, including nearly 14,000 recreation residence permits on National Forest System lands spread across 24 states and 114 national forests. Recreation residences are privately owned cabins that have been authorized on National Forest System lands since 1915. Like other types of special use authorizations, permits for recreation residences are subject to an annual land use fee, payable in advance at the beginning of the calendar year.
The Cabin Fee Act of 2014 (16 U.S.C. 6214) establishes a tiered fee structure for the use and occupancy of recreation residences on National Forest System lands. Section 2(f)(3)(A) of the Cabin Fee Act requires the Forest Service to establish criteria by which the annual land use fee for a recreation residence permit may be suspended or temporarily reduced if access to, or occupancy of, the recreation residence is significantly restricted. Section 2(f)(3)(B) of the Cabin Fee Act requires the determination of whether to suspend or temporarily reduce the annual land use fee for a recreation residence permit to be administratively appealable.
The proposed rule would amend 36 CFR 214.4(c) by adding paragraph (6) to provide for appeal of a decision of whether to temporarily reduce the annual land use fee for a recreation residence permit during significantly restricted access to, or occupancy of, the recreation residence.
The proposed rule would add a definition to 36 CFR 251.51 for the term “significantly restricted access to, or occupancy of, a recreation residence,” which would be defined as when access to, or occupancy of, a recreation residence is prohibited by law for a
The definition for “significantly restricted access to, or occupancy of, a recreation residence” would not include other situations where access to, or occupancy of, the recreation residence is restricted, such as situations where the recreation residence cannot be accessed or occupied because a private access road or the recreation residence has not been adequately maintained or where a private access road or the recreation residence has been destroyed or substantially damaged. The Agency believes these situations should be outside the scope of the temporary land use fee reduction, consistent with the risk of loss clause in the term special use permit for recreation residences.
The proposed rule would amend 36 CFR 251.57 by adding paragraph (j) to provide for temporarily reducing the annual land use fee for a recreation residence permit during significantly restricted access to, or occupancy of, the recreation residence. For consistency and ease of implementation, the proposed rule would provide for temporarily reducing the land use fee proportionate to the number of days of significantly restricted access to, or occupancy of, the recreation residence, rather than for suspending the land use fee after significantly restricted access to, or occupancy of, the recreation residence has reached a specified number of days. A temporary land use fee reduction would be calculated by dividing the annual land use fee for the recreation residence by 365 to determine the daily land use fee and then multiplying the daily land use fee by the number of days of significantly restricted access to, or occupancy of, the recreation residence. For ease of administration, if significantly restricted access to, or occupancy of, a recreation residence includes part of one day, that day would be counted as a whole day. A temporary land use fee reduction during significantly restricted access to, or occupancy of, a recreation residence would be applied to the annual land use fee for the recreation residence permit for the following year.
The proposed rule would have no effect on the risk of loss clause in term special use permits for recreation residences, other than by providing for temporarily reducing the annual land use fee for a recreation residence permit in accordance with the terms of the proposed rule, consistent with the Cabin Fee Act. The proposed rule would have no effect on any other type of special use or special use authorization.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will determine whether a regulatory action is significant and will review significant regulatory actions. The Office of Information and Regulatory Affairs has determined that this proposed rule is not significant. Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability; to reduce uncertainty; and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Agency has developed the proposed rule consistent with Executive Order 13563.
Pursuant to subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 801
The proposed rule would update the Agency's regulations consistent with the requirement in the Cabin Fee Act to provide for a suspension or temporary reduction in the land use fee for a recreation residence permit if access to, or occupancy of, the recreational residence is significantly restricted. Forest Service regulations at 36 CFR 220.6(d)(2) exclude from documentation in an environmental assessment or environmental impact statement “rules, regulations, or policies to establish servicewide administrative procedures, program processes, or instructions.” The Agency's preliminary assessment is that this proposed rule falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement. A final determination will be made upon adoption of the final rule.
The Agency has considered the proposed rule under the requirements of the Regulatory Flexibility Act (5 U.S.C. 602
The Agency has considered the proposed rule under the requirements of Executive Order 13132,
Executive Order 13175,
The Agency has considered the proposed rule under the requirements of Executive Order 12898,
The Agency has analyzed the proposed rule in accordance with the principles and criteria in Executive Order 12630,
The Agency has reviewed the proposed rule under Executive Order 13211,
The Forest Service has analyzed the proposed rule in accordance with the principles and criteria in Executive Order 12988,
Pursuant to title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Agency has assessed the effects of the proposed rule on State, local, and Tribal governments and the private sector. The proposed rule would not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required.
The proposed rule does not contain recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Administrative practice and procedure, National forests.
Administrative practice and procedure, Alaska, Electric power, Mineral resources, National forests, Public lands—rights-of-way, Reporting and recordkeeping requirements, Water resources.
Therefore, for the reasons set forth in the preamble, the Forest Service proposes to amend chapter II of title 36 of the Code of Federal Regulations as follows:
7 U.S.C. 1011(f); 16 U.S.C. 472, 551.
(c) * * *
(6) A decision of whether to temporarily reduce the annual land use fee for a recreation residence permit during a period of significantly restricted access to, or occupancy of, the recreation residence.
16 U.S.C. 460
(j) The annual land use fee for a recreation residence permit shall be temporarily reduced during periods of significantly restricted access to, or occupancy of, the recreation residence. A temporary land use fee reduction for significantly restricted access to, or occupancy of, a recreation residence shall be calculated by dividing the annual land use fee for the recreation residence permit by 365 to determine
Federal Emergency Management Agency, DHS.
Request for comments.
The Federal Emergency Management Agency (FEMA) is accepting comments on the proposed FEMA policy,
Comments must be received by December 1, 2023.
You may submit comments, identified by Docket ID: FEMA-2023-0026, via the Federal eRulemaking Portal:
Portia Ross, Policy and Integration Division Director, Office of Environmental Planning and Historic Preservation, Resilience, DHS/FEMA, 400 C St. SW, Suite 313, Washington, DC 20472-3020. Phone: (202) 709-0677; Email:
FEMA is proposing to issue a policy complementary to 44 CFR part 9, Floodplain Management and Protection of Wetlands, which governs FEMA's implementation the Federal Flood Risk Management Standard (FFRMS). This policy would facilitate implementation of FFRMS and bolster the resilience of communities and Federal assets against the impacts of flooding.
Consistent with a proposed rule that is published elsewhere in this issue of the
This policy would also outline FEMA's process to identify actions that may receive substantial damage or substantial improvement determinations, require consideration of natural features and nature-based approaches as alternatives to a proposed action, explain requirements to minimize flood risk, and encourage early coordination when multiple Federal agencies are jointly engaged in an action to ensure a consistent approach to determine which floodplain determination is applied.
Office of Family Assistance (OFA); Administration for Children and Families (ACF); Department of Health and Human Services (HHS).
Notice of proposed rulemaking (NPRM).
ACF proposes to amend the Temporary Assistance for Needy Families (TANF) program regulations to strengthen the safety net and reduce administrative burden. This NPRM encompasses a package of reforms to ensure TANF programs are designed and funds are used in accordance with the statute. In addition, the package includes provisions that are more technical in nature and are designed to reduce administrative burden and increase program effectiveness.
In order to be considered, the Department must receive written comments on this NPRM on or before December 1, 2023.
ACF encourages the public to submit comments electronically to ensure they are received in a timely manner. You may submit comments, identified by [docket number] and/or Regulatory Information Number (RIN) 0970-AC99, by any of the following methods:
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The Office of Family Assistance, ACF, at
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 created TANF, repealing the Aid to Families with Dependent Children (AFDC) and related programs. The TANF program provides a fixed block grant of about $16.5 billion to states, territories (Guam, the Virgin Islands, and Puerto Rico), and the District of Columbia. Additionally, federally recognized American Indian tribes and Alaska Native organizations may elect to operate their own TANF programs.
The TANF statute at 42 U.S.C. 601(a) and 604(a)(1) provides that TANF grants must be used in any manner reasonably calculated to accomplish one or more of the following four purposes:
(1) provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives;
(2) end the dependence of needy parents on government benefits by promoting job preparation, work, and marriage;
(3) prevent and reduce the incidence of out-of-wedlock pregnancies and establish annual numerical goals for preventing and reducing the incidence of these pregnancies; and
(4) encourage the formation and maintenance of two-parent families.
Within this statutory framework, state TANF programs provide a range of benefits and services that can serve as a critical support to families experiencing economic hardships, including the provision of cash assistance, employment and training assistance, and related services. Pursuant to 42 U.S.C. 604(a)(2), a state may also use its TANF grant for expenditures that were authorized under the prior AFDC, Job Opportunities and Basic Skills Training (JOBS), or Emergency Assistance (EA) programs as reflected in a state's plan on certain dates specified in the statute.
To avoid incurring a penalty under 42 U.S.C. 609(a)(7), a state must meet a MOE requirement each fiscal year, that is, expenditure of state funds in TANF or a separate state program for certain benefits and services. As established in 42 U.S.C. 609(a)(7), each state must expend funds that meet a TANF purpose for eligible families in an amount equal to at least 80 percent of state spending in FY 1994 for AFDC programs related to cash assistance, emergency assistance, job training, and child care. This required amount falls to 75 percent if the state meets its TANF work participation requirement for the fiscal year.
Work participation rates measure the degree to which a state engages families receiving assistance funded by TANF or MOE in work activities specified under federal law. A state faces financial penalty for a fiscal year if it does not meet both an overall work participation rate of 50 percent and a two-parent work participation rate of 90 percent in each case, minus any caseload reduction credit. 42 U.S.C. 609(a)(3). A state's caseload reduction credit for a fiscal year equals the percentage point decline (for reasons other than changes in eligibility rules) in its average monthly caseload between FY 2005 (the current base year) and a comparison year. The Fiscal Responsibility Act of 2023 recalibrates the base year for caseload reduction from FY 2005 to FY 2015, starting in FY 2026. In addition, the “excess MOE” provision in TANF regulations allows a state to increase its caseload reduction credit, and thus lower its work participation rate target further, by spending more MOE funds than is required.
While states must adhere to the work participation rate and other federal requirements, such as a 60-month lifetime limit on an adult receiving federally funded assistance, states otherwise have flexibility in designing their TANF programs. Each state decides on the type and amount of assistance payments, the range of other services to be provided, and the rules for determining who is eligible for benefits within certain federal statutory parameters.
This proposed regulation is issued under Title IV of the Social Security Act, 42 U.S.C. 601
Note that here and below we use the term “we” in the regulatory text and preamble. The term “we” is synonymous with the Secretary of the Department of Health and Human Services or any of the following individuals or agencies acting on his behalf: the Assistant Secretary for Children and Families, the Department, and the Administration for Children and Families.
The first two proposals, both related to allowable spending, would clarify the criteria the Department will use when applying the misuse of funds penalty in 42 U.S.C. 609(a)(1). These proposals would help ensure that states expend TANF funds in accordance with the provisions of Title IV-A. The statute at 42 U.S.C. 609(a)(1) requires the Department to assess a misuse of funds penalty when TANF funds have “been used in violation of this part.” As noted in the 1999 preamble, we have an obligation to set out, in regulations, the criteria we will use in carrying out our express authority to enforce certain TANF provisions by assessing penalties in cases where TANF funds were spent
In the preamble to the original TANF final rule (64 FR 17720
Under the law, a state participating in TANF must describe in its state plan how it will conduct a TANF program “that provides assistance to needy families with (or expecting) children and provides parents with job preparation, work, and support services to enable them to leave the program and become self-sufficient.” 42 U.S.C. 602(a)(1)(A)(i). More than 27 years after the establishment of TANF, state programs have shifted away from a focus on direct cash and employment assistance. Although states are permitted under the statute to determine how much funding to expend on cash assistance, we remind states that there is a large body of research that shows that cash assistance is a critically important tool for reducing family and child poverty.
States are also underinvesting in work, education, and training for parents with low incomes as well as critical work supports. We remind states that TANF funds directed to child care can serve as an essential work support to families that helps lift these families out of poverty, expose children to high-quality services during a rapid period of development, and reduce incidences of involvement in the child welfare system.
The TANF statute provides that states can transfer up to 30 percent of their federal TANF block grant funds to the Child Care and Development Fund (CCDF), and they can also spend their federal TANF funds and MOE funds directly on child care. In FY 2021, states transferred approximately $1.16 billion to CCDF. Additionally, states spent $3.75 billion of TANF and MOE funds directly on child care, but approximately half of states chose not to transfer any TANF funds to CCDF. TANF funds transferred to CCDF are subject to CCDF rules—including health and safety requirements. TANF funds transferred to CCDF are also subject to reporting requirements that illustrate the impact of child care funding and allow the public greater visibility into the average subsidy that a family receives, the number of children served, and whether states are reaching particularly vulnerable populations of children, including children with disabilities. A state's expenditure on child care is meaningful as it addresses a cost that is particularly high for needy families. As illustrated by recent research from the President's Council of Economic Advisers, child care costs represent 23 percent of annual expenses for families earning less than $34,000, and 31 percent of annual expenses for families earning under $25,000.
Instead of a focus on cash assistance, work, and critical work supports like child care, states are spending TANF and MOE funds on a wide range of benefits and services, including some with tenuous connections to a TANF purpose and, in some instances, providing supports for families with incomes up to 400 percent of the federal poverty guidelines.
To ensure states are spending their funds in accordance with the purposes of TANF, the Department is proposing two changes to clarify allowable expenditures. The first proposed change would establish a federal limit on how states may define the term “needy” and the second seeks to clarify how the term “reasonably calculated to accomplish a TANF purpose” applies. These changes would also establish criteria for assessing what is and is not an allowable use of funds, and therefore, are within the Department's regulatory authority to enforce the misuse of funds penalty provision at 42 U.S.C. 609(a)(1).
The Department is introducing a third proposed change that would exclude as
The fourth proposed change would add an eleventh holiday to the number of holidays that can count toward the work participation rate for work-eligible individuals in unpaid work activities, realigning the provision with the federal holidays since the recognition of Juneteenth as a federal holiday.
The last three proposals would reduce administrative burden, provide clarity, and increase program effectiveness in the TANF program. In the fifth proposal, the Department seeks to develop new criteria to allow states to use alternative Income and Eligibility Verification System (IEVS) measures. Section 1137(a)(2) of the Social Security Act allows for the Department to regulate with respect to the need for alternative verification sources in certain circumstances; this proposal would amend the existing regulation at 45 CFR 205.55(d).
The sixth proposed change would clarify the “significant progress” criteria following a work participation rate corrective compliance plan to permit a reduction in the amount of a penalty if a state that had failed both the overall and two-parent work participation rates for a year corrected its overall rate but not the two-parent rate. This proposal falls under the Department's authority to regulate where the Department is charged with enforcing certain TANF provisions (42 U.S.C. 609(a)(3)), and thus fits within the statutory authority granted to the Secretary to regulate state conduct in the TANF program.
The seventh proposed change would clarify existing regulatory text about the allowability of costs associated with providing program information. The regulation at 45 CFR 263.0 (b)(1)(i) currently provides that “providing program information to clients” is a program cost and not an administrative cost. We propose to delete that language from (b)(1)(i) and create a new subsection (iii) that clarifies the point that administrative costs exclude the costs of disseminating program information. For example, the cost of providing information pamphlets or brochures about how to reduce out-of-wedlock pregnancies is allowable under purpose three, and the cost of providing information about community resources to needy families or needy parents, pursuant to purposes one and two, respectively, is allowable, whether or not the described community resources themselves are funded by TANF.
The TANF statute sets an administrative cap of 15 percent. 42 U.S.C. 604(b). It provides that a “State to which a grant is made under section 403 shall not expend more than 15 percent of the grant for administrative purposes.” 42 U.S.C. 604(b). Section 263.0 implements the cap by making clear which categories of expenditures are program costs that do not count towards the cap, and which qualify as administrative costs and thus count towards the cap. Failure to comply with the administrative cap could lead to a misuse of funds penalty, therefore this proposal falls under the Department's authority to regulate where the Department is charged with enforcing certain TANF provisions (42 U.S.C. 609(a)(3)), and thus fits within the statutory authority granted to the Secretary to regulate state conduct in the TANF program.
Taken together, the seven proposed changes would strengthen TANF's safety net function, ease administrative burdens, and ultimately, improve TANF's ability to serve as a critical support to families experiencing economic hardship to achieve economic mobility.
1.
We propose that, for purposes of allowable TANF expenditures and misuse of funds penalties, state definitions of “needy” may not exceed 200 percent of the federal poverty guidelines,
The TANF statute at 42 U.S.C. 601(a)(1) & (2) specifies that expenditures under TANF purpose one may only be made for “needy” families and TANF purpose two may only be made for “needy” parents. Generally, MOE must also be spent for “needy families.” Accordingly, the term “needy” is crucial in determining allowable TANF expenditures under the first two purposes of TANF and expenditures countable toward state MOE requirements. Current regulations do not define the term “needy”, which means there is presently no federally specified income limit for use of TANF funds under TANF purposes one and two as well as for most MOE expenditures.
This proposed rule would amend § 260.30 to add a definition of “needy.” This change would require that state definitions of “needy” with respect to all federal TANF and state MOE expenditures that are subject to a required needs standard must be limited to individuals in families with incomes at or below 200 percent of the federal poverty guidelines.
We believe that limiting the definition of need to 200 percent of the federal poverty guidelines is consistent with the intent of Congress in establishing TANF. We are mindful that, in TANF, Congress sought to provide increased state flexibility in relation to the prior AFDC program. At the time that TANF was enacted in 1996, the median gross income limit for a family of three in the AFDC Program was $1,079—about equal to 100 percent of the federal poverty guidelines in 1996.
The Department notes that the proposed 200-percent limit is consistent with the statutory requirement that TANF funds transferred to the Social Services Block Grant “shall be used only for children or their families whose income is less than 200 percent of the income official poverty line. . . .” 42 U.S.C. 604(d)(3)(B). Congress did not set a similar limit on TANF funds not transferred to the Social Services Block Grant; however, the Department notes that the statute referenced “needy families” and, at the time TANF was enacted, as noted above, AFDC standards of need in states were much lower than 200 percent of poverty. States would have the flexibility to set standards lower than 200 percent under this proposal and could also choose to set a standard based on a percentage of state median income, as long as the limit corresponded with an amount that was at or below the 200-percent of the federal poverty guidelines standard.
There is currently no regulatory definition of “needy” because rather than defining the term “needy”, the 1999 TANF final rule deferred to state reasonable definitions of the term. This approach centered on state flexibility. The drafters also acknowledged the possibility that we might revisit that decision if we identified situations in which state actions undermined the goals of the program. 64 FR 17725-26, April 12, 1999. Over the last 25 years, all states have maintained initial eligibility income limits for cash assistance below 200 percent of the federal poverty guidelines; however, we have observed that some states have used the flexibility to allow higher-income families to be eligible for programs where a needs standard is required, going beyond the bounds of a reasonable definition of “needy”.
Many states have used TANF or MOE funds for services other than cash assistance under purpose one and two for families at 300 or 400 percent of the federal poverty guidelines, or even higher. In at least 40 states, ACF identified programs with income limits of over 200 percent of the federal poverty guidelines. There were several different types of programs, including pre-kindergarten, child welfare, tax credits, employment, housing, and emergency assistance. Examples include child welfare services for families up to 500 percent of the federal poverty guidelines and pre-kindergarten for families at 300 percent of the federal poverty guidelines. All these services are generally allowable uses of TANF and MOE funds under purposes one and two; our concern is not the services for which the funds are used, but rather that TANF funds are being expended for programs that are not targeted to needy families as intended by Congress. It is important to understand that an income limit as high as 400 percent of the federal poverty guidelines allows TANF-funded services under TANF purposes one and two to go to families earning roughly $92,000 per year for a family of three. We recognize that families within 400 percent of the federal poverty guidelines may also face hardship, and that programs that offer this support are important investments in child well-being. However, the Department is proposing a ceiling on the term “needy” to ensure that TANF funds are expended in accordance with the statutory requirements and to maintain program integrity.
Given the state spending described above, we are proposing this rule because we think states are going beyond the bounds of a reasonable definition of “needy.” This proposal would provide clarity on how the Department would assess when an expenditure warranted a misuse of funds penalty, 42 U.S.C. 609(a)(1), because states have expended funds on individuals or families that are not needy within a reasonable definition of the statutory term. As the Department concluded in the 1999 TANF final rule, the Secretary has authority to regulate in areas where the statute specifies and where Congress has charged the Department with enforcing penalties, 64 FR 17725, April 12, 1999.
The preamble to the regulations explained how the Department interpreted its authority and constraints on its authority under 42 U.S.C. 617:
Under the new section 417 of the Act, the Federal government may not regulate State conduct or enforce any TANF provision except to the extent expressly provided by law. This limitation on Federal authority is consistent with the principle of State flexibility and the general State and congressional interest in shifting more responsibility for program policy and procedures to the States. We interpreted this provision to allow us to regulate in two different kinds of situations: (1) Where Congress has explicitly directed the Secretary to regulate (for example, under the caseload reduction provisions, described below); and (2) where Congress has charged the Department of Health and Human Services (HHS) with enforcing penalties, even if there is no explicit mention of regulation. In this latter case, we believe we have an obligation to States to set out, in regulations, the criteria we will use in carrying out our express authority to enforce certain TANF provisions by assessing penalties.
As noted earlier, this proposed rule is in line with the limitation in 42 U.S.C. 617, because we believe we have an obligation to set out, in regulations, the criteria we will use in carrying out our misuse of funds penalty authority when TANF funds “have been used in violation of this part,” meaning where TANF funds are spent for unallowable activities.
The Department considered alternatives to this proposal, including determining a standard of need that varies according to the state's cost of living, or an index of the average state median income, as well as other possible limits on the term “needy”, such as limiting the term to families below 130 percent of the federal poverty guidelines. As previously noted, we are
2.
This proposed rule would amend 45 CFR 263.11 to add a new subsection (c) that sets forth the reasonable person standard for assessing whether an expenditure is “reasonably calculated to accomplish the purpose of this part” 42 U.S.C. 604(a)(1). The proposed regulation defines it to mean expenditures that a reasonable person would consider to be within one or more of the enumerated four purposes of the TANF program.
Section 604(a) provides the general rules for how TANF grant funds are expended. Entitled “Use of grants,” it provides in subsection (a)(1) that “[s]ubject to this part,” a state may use the grant “in any manner that is reasonably calculated to accomplish the purpose of this part, including to provide low income households with assistance in meeting home heating and cooling costs . . .”. Section 601(a), entitled “Purpose” provides that “[t]he purpose of this part is to increase the flexibility of States in operating a program designed to” accomplish one or more of the four enumerated statutory purposes: (1) provide assistance to needy families so that children may be cared for in their homes or in the homes of relatives; (2) end the dependence of needy parents on government benefits by promoting job preparation, work, and marriage; (3) prevent and reduce the incidence of out-of-wedlock pregnancies and establish annual numerical goals for preventing and reducing the incidence of these pregnancies; and (4) encourage the formation and maintenance of two-parent families. This regulation proposes a standard the Department will apply in determining whether it considers an expenditure to be “reasonably calculated to accomplish the purpose of this part.”
This proposal sets forth the standard the Department will apply to determine whether expenditures are not reasonably calculated under section 604(a)(1) and thus warrant a penalty under the misuse of funds penalty authority in section 609(a)(1). As the Department explained in promulgating the 1999 TANF final rule, the Secretary has authority to regulate in areas where the statute specifies and where Congress has charged the Department with enforcing penalties.
In the original TANF final rule (64 FR 17720, April 12, 1999), the Department did not regulate in relation to section 604(a)(1). As we noted then, we “endeavored to regulate in a manner that does not impinge on a State's ability to design an effective and responsive program.”
To the extent that we have not addressed a provision in this final regulation, States may expend their Federal TANF funds under their own reasonable interpretations of the statutory language, and that is the standard that will apply in determining penalty liability.
At the same time, the 1999 final rule preamble pointed to instances in which the Department had concluded that certain expenditures could not be reasonably calculated to accomplish the purpose of TANF. At the time the Department issued the regulations, there was particular interest in and concern about the possible use of TANF for foster care maintenance, other out-of-home costs, and use of TANF for juvenile justice expenditures. We expressed in the 1999 final rule preamble that, while certain costs might be permissible under TANF's grandfather clause, such costs are not otherwise allowable under TANF:
With regard to foster care or other out-of-home maintenance payments, we would note that such costs are not allowable TANF costs under section 404(a)(1) of the Act since they are not reasonably calculated to further a TANF purpose . . .
There are additional costs related to foster care or out-of-home maintenance payments that may be allowable and referred to, in short-hand, as foster care. For example, there are costs for family preservation activities, such as counseling, home visits, and parenting training, that would be allowable TANF costs because they are reasonably calculated to enable a child to be cared for in his or her own home.
Subsequently, the preamble explained:
However, expenditures for residential care as well as assessment or rehabilitative services, including services provided to children in the juvenile justice system, do not meet any of the purposes of the TANF program and would not count toward basic MOE. The principal purpose [] for placement is to protect the child or to protect society because of the child's behavior, not to care for the child in his or her own home (purpose 1). Since the focus is to address the child's needs, expenditures to care for the child in these living situations does not end the dependence of needy parents on government benefits by promoting job preparation, work and marriage (purpose 2). The remaining two purposes do not even remotely relate to this situation.
In 2015, the Department reminded states that, “[a]ny federal TANF expenditures for juvenile justice services . . . will be considered a misuse of TANF funds and subject to penalty action.”
As noted earlier, we believe this rulemaking is in line with the limitation in 42 U.S.C. 617 because the Department has authority and the obligation to assess misuse of funds penalties. Accordingly, we believe we have an obligation to set out, in regulations, the standard we will use in carrying out our misuse of funds penalty authority when TANF funds “have been used in violation of this part”, meaning where TANF expenditures are not
We are mindful that the TANF statute sought to “increase the flexibility of states. . .” and we believe the proposed approach below is fully consistent with the statute. 42 U.S.C. 601(a) (2023). In enacting TANF, Congress was not seeking to and did not provide states with unlimited flexibility, but rather sought to increase the flexibility of states in relation to the program that TANF replaced, the AFDC Program. In the AFDC program, there were detailed and complex federal eligibility rules,
It has become clear that, in some instances, states have indeed undercut statutory requirements by using TANF and MOE funds to pay for activities with, at best, tenuous connections to any TANF purpose. This is particularly a problem for expenditures claimed under purposes three and four, where the statute does not limit benefits and services to needy families or needy parents. As described below, these expenditures include over $1 billion spent on college scholarships (including for middle- and high-income individuals without children) that states have asserted are allowable because they are reasonably calculated to accomplish the purpose of preventing and reducing out of wedlock pregnancies. Similarly, close to $1 billion is being spent on general youth services that are not targeted to vulnerable youth, but that states are asserting accomplish the purpose of preventing and reducing out-of-wedlock pregnancies. Additionally, a portion of the close to $2 billion spent on covering costs in state child welfare systems is being justified as providing assistance to needy families, but those expenditures appear to be covering ordinary operating costs of state child welfare systems and not targeted services to meet the goal of preventing children from entering into foster care by providing assistance to families so that children may remain in their homes as articulated in purpose one. While services described may provide important social supports, we believe that in many cases those services would not be interpreted as a reasonable activity to meet a TANF purpose.
As a result, the Department has concluded that it is necessary to articulate a general standard for determining whether an expenditure is reasonably calculated to accomplish a TANF purpose. In accordance with the “reasonably calculated” language of the statute, we propose in this rule to describe the applicable standard as a “reasonable person” test. This is the same standard that our regulations have employed since 1999 for determining whether a misuse of funds is intentional. The discussion below concerning the “reasonable person” test would apply when determining intentional misuse of funds, even though we are not proposing any modification to that regulatory provision. In addition, this process would apply to all expenditures made after the effective date of the rule, which we propose be no earlier than the start of the fiscal year following finalization. We understand states may need some time to make sure that all their state TANF expenditures meet the reasonable person standard and solicit comment on what readers would consider to be a reasonable implementation period.
In many instances, the analysis will be entirely straightforward because certain expenditures clearly fall within the plain language of the statutory purpose. For example, cash assistance for needy families, employment services for needy parents, and teen pregnancy prevention programs clearly fall within the express statutory language of TANF purposes one, two, and three, respectively. However, in other instances, a question may arise as to whether an expenditure is reasonably calculated to accomplish a purpose of TANF. Such a question could arise in a variety of ways, including: in a state plan or plan amendment review; in responding to a state's question about use of TANF funds; in resolving an audit; in an external report related to state TANF program expenditures; or from information gleaned in site visits. In such cases, including when resolving state audit findings, the Department will ask for additional information before assessing a penalty for misuse of funds, 42 U.S.C. 609(a)(1). We will consider, as appropriate, factors including: (1) evidence that the expenditure actually accomplished a TANF purpose; (2) evidence that prior expenditures by the state or another entity for the same or a substantially similar program or activity actually accomplished a TANF purpose; (3) academic or other research indicating that the expenditure could reasonably be expected to accomplish a TANF purpose; (4) whether the actual or expected contribution of the expenditure to accomplishing a TANF purpose is reasonable in light of the extent of that expenditure; and (5) the quality of the reasoning (as outlined below) underlying the state's explanation that the expenditure accomplished or could be expected to accomplish a TANF purpose. In addition, where a program is multifaceted or includes several different types of services, we would examine the extent to which the state uses the Office of Management and Budget cost principles to allocate costs of different components of a service or benefit to appropriate funding sources and ensures that only the portions of a program, benefit, or service that the state demonstrates are reasonably calculated to accomplish a TANF purpose are allocated to TANF. § 263.14.
As with any situation in which one must determine whether a particular action is reasonable, the analysis will necessarily be fact-specific. Therefore, a state's explanation should clearly describe such facts as the precise service or benefit it intends to fund, the population eligible to receive the service or benefit, any other eligibility criteria or circumstances that would restrict provision of the benefit or service, the amount the state intends to expend, under which purpose it is claiming the expenditure, and what its rationale is for concluding that the expenditure is reasonably calculated to meet the purpose. In weighing the information that a state provides to support an expenditure as reasonably calculated to accomplish a TANF purpose, we would assess the quality of that evidence, including whether the state's justification for the expenditure is
As we noted above, “evidence” refers to supporting materials that substantiate a state's assertion that an activity is reasonably calculated to accomplish a TANF purpose. There are several forms of evidence that a state might provide to support its justification for a TANF expenditure. One of them is evidence from research, and the strongest case will be made with the best available research. Evidence will be strongest if it is based on the following types of research, listed in descending order of rigor: (1) the activity has been evaluated using a rigorous evaluation design (such as randomized controlled or high-quality quasi-experimental trials) and has demonstrated favorable impacts on the outcome(s) of interest; (2) a body of research has demonstrated a favorable association between the activity and the outcome(s) of interest sufficient that a reasonable person would consider the expenditure reasonably calculated to accomplish a TANF purpose; or (3) qualitative or descriptive research suggests the activity favorably affects the outcome(s) of interest sufficiently that a reasonable person would consider the expenditure reasonably calculated to accomplish a TANF purpose. Research evidence could come from an existing systematic review, an existing clearinghouse, a catalog of evidence-based research or evaluation of emerging or substantially similar programs.
While such evidence will most clearly establish that an expenditure is reasonable, programmatic evidence could be sufficient for a reasonable person to find that an activity is reasonably calculated to accomplish a TANF purpose. This can be done through an analysis using performance and administrative data comprised of information on activities, services delivered, and outcomes achieved that a program collects on an ongoing basis to measure progress toward goals or to inform operations and service delivery. Programmatic evidence should include an analysis of this data that demonstrates that the activity accomplishes a TANF purpose. The analysis could substantiate that an activity meets the “reasonable person” standard.
Readers should note that we have provided a proposal of the framework we would use to determine if an expenditure were reasonably calculated to accomplish a TANF purpose. We offer a number of examples below, and anticipate that, for many expenditures, it will be entirely clear whether the expenditure is or is not reasonably calculated to accomplish a TANF purpose. The TANF program does not include a state plan approval process; rather it has only a process for determining that a plan is complete in providing information required by statute. TANF also does not have an expenditure preapproval process. Still, we appreciate that, in planning program expenditures, states will value clarity as to whether particular expenditures may be considered reasonably calculated to accomplish a TANF purpose. Thus, from an implementation standpoint, if a state had concerns about whether an expenditure was reasonably calculated to accomplish a TANF purpose, it could, though need not, request the Department's views before proceeding. We welcome comments on additional factors we might consider in the process of determining whether an expenditure is reasonable.
With this proposed standard in mind, the Department provides more information below about how to determine whether an expenditure is reasonably calculated under the reasonable person standard. We note that we do not consider the examples to be an exhaustive list. The Department welcomes comments on these determinations, examples, and potential impacts on financial management and reporting, as well as service delivery and program operations.
Where the connection to TANF purpose one is not as straightforward, a child welfare service can be reviewed using the reasonable person standard factors outlined above to help determine whether it meets that purpose. For example, some states use TANF or MOE funds to pay for respite care services for parents or other relatives. Those states might provide evidence from the Child Welfare Information Gateway, where peer-reviewed studies of similarly designed programs have found that respite care allows for children to remain permanently in their homes. They might also be able to provide administrative data to show that they have seen respite care services provide the short-term supports necessary to allow children to remain in their own homes or in the homes of relatives compared with the absence of these services. With this information, the Department could determine that the use of respite care services is reasonably calculated to meet TANF purpose one. In another example, a state may want to use TANF funds to provide diversion and alternative response activities. The state could provide information from academic studies or administrative data that these activities help keep children in their own homes or in the homes of relatives and are therefore reasonably calculated to meet TANF purpose one.
Other child welfare activities for children and families do not have as close a connection to, reunification, permanency, or services to prevent child maltreatment. These types of activities, such as child protection investigations, would likely not be allowable under purpose one in the framework outlined in the proposed rule. By their very nature, child protection investigations are intended to learn whether a child has been harmed or is at risk of being harmed and should be removed from the home, rather than to provide assistance so that children can remain in their own homes or in the
States have used or may want to use TANF or MOE funds to pay for other education and training activities that are not as straightforwardly connected to TANF purpose two. In these instances, the Department would review the benefit or service using the reasonable person framework outlined above. For example, a state might want to provide education and training for childless individuals or to parents regardless of income. The Department believes that it is unlikely there could be sufficient evidence or logical coherence to show that education and training for individuals who are not parents could be reasonably calculated to end the dependence of needy parents. To the extent that is the case, such spending would not be allowed under TANF purpose two under this proposed rule. Similarly, we think it unlikely that states could provide evidence that education and training received without regard to income level could be reasonably calculated to end the dependence of needy parents. As a result, expenditures for these activities are unlikely to be allowed under TANF purpose two under this proposed rule.
However, jurisdictions have sought to claim other expenditures under TANF purpose three where the connection to preventing and reducing out-of-wedlock pregnancies appears to be far more tenuous or even non-existent. College scholarship programs for adults without children likely do not meet the reasonable person standard under purpose three. Since this expenditure does not fall clearly within the plain language of the statutory purpose, the Department would use the factors under our proposed standard to review the expenditure. This would include reviewing the evidence and documentation provided by the state. Without evidence that the expenditure actually accomplishes the TANF purpose, that prior expenditures by the state or another entity for the same or a substantially similar program or activity actually accomplished the TANF purpose, or that there is academic or other research indicating that the expenditure could reasonably be expected to accomplish the TANF purpose, the expenditure is unlikely to meet the reasonable person standard we propose and therefore would likely not be allowable under this proposal.
Similarly, programs that only or primarily provide pregnancy counseling to women only after they become pregnant likely do not meet the reasonable person standard because the connection to preventing and reducing out-of-wedlock pregnancies is tenuous or non-existent, and therefore do not accomplish purpose three. States that provide funding for these types of programs, including through entities sometimes known as crisis pregnancy centers or pregnancy resource centers, must be able to show that the expenditure actually accomplishes the TANF purpose, that prior expenditures by the state or another entity for the same or a substantially similar program or activity actually accomplished the TANF purpose, or that there is academic or other research indicating that the expenditure could reasonably be expected to accomplish the TANF purpose. If pregnancy prevention programming is a part of an ongoing program, such as year round after-school programming, only those costs associated with delivery of pregnancy prevention should be cost allocated and non-TANF funds used to fund other activities.
In FY 2021, 27 states reported a total of $925.0 million in federal TANF and MOE expenditures on “Services for Children and Youth.” A wide variety of services and programs may fall in this category, including afterschool and mentoring or academic tutoring programs. States often assert that programs like these meet purposes three and four. The Department recognizes and appreciates the value of such services, but under the statute and the implementing reasonable person standard, many of them likely are not reasonably calculated to achieve purpose four. The Department is unaware of evidence from academic research or program design or outcomes documentation that shows these activities accomplished or could be expected to accomplish the purpose of encouraging the formation and maintenance of two-parent families. For example, if a state were to assert that spending on after-school programs is reasonably calculated to promote the formation and maintenance of two-parent families, the state would need to provide evidence to justify such a service under the reasonable person standard. Even then, if this programming were a small portion of the overall activities in the program, the state would need to cost allocate. Only
For all other TANF and MOE-funded activities, we invite readers to provide comments on our proposed standard of “reasonably calculated to accomplish the TANF purpose” and offer any alternative approaches for operationalizing the standard.
3.
This proposed rule would amend § 263.2(e) to exclude, as an allowable TANF MOE expenditure, cash donations and the value of in-kind contributions from non-governmental third parties.
Each state must meet a maintenance-of-effort (MOE) requirement under TANF. To avoid a TANF penalty for a fiscal year, a state must have “qualified state expenditures” of at least 80 percent of the amount the state spent on a specified set of programs in FY 1994, before TANF was enacted, or 75 percent if the state satisfies its federal work participation requirement for the fiscal year. The statute specifies that the “qualified state expenditures” a state may count toward its MOE requirement in a given fiscal year are “the total expenditures by the state during the fiscal year” that meet one or more of the purposes of TANF and serve eligible families. 42 U.S.C. 609(a)(7)(B)(i).
Congress established the level of historic state expenditures based on spending in FY 1994 for a set of programs that existed before TANF and were eliminated at the time that Congress enacted the TANF block grant. The MOE levels were set based on non-federal state spending in FY 1994 for programs authorized under the former Titles IV-A and IV-F of the Social Security Act, specifically the AFDC benefits and administrative costs, the Emergency Assistance Program, the Job Opportunities and Basic Skills Training Program, and a set of child care programs that had been funded under Title IV-A. In shifting from the former structure of federal matching funds for state expenditures to a block grant framework, Congress made the decision to require states to continue to make expenditures for programs and activities meeting TANF purposes at a level not less than 80 percent of the level at which they had been spending in FY 1994 for this set of programs (or 75 percent if the state meets its work participation requirement for the year). Congress established this requirement without an inflation adjustor. When adjusting for inflation (based on 2022 data), states are actually required to spend approximately 50 percent of what they spent in FY 1994.
Under the statutory framework, if a state does not meet its required MOE level for a fiscal year, it is subject to financial penalty in the amount it falls short of its required MOE. The proposed change would further clarify the criteria for the agency to assess this penalty. The intent of this provision is to ensure that states maintain a certain level of financial commitment to the TANF program and participate financially along with the federal government. Financial involvement by states is necessary for the success of the TANF program as envisioned by Congress. Under the current rule, in addition to state funds, a state is permitted to count toward the MOE requirement certain in-kind or cash expenditures by non-governmental third parties, so long as these expenditures meet a TANF purpose and other requirements. In this NPRM, we propose to eliminate the ability of states to count cash donations and in-kind contributions from non-governmental third parties towards MOE. The NPRM distinguishes between governmental spending and that of non-governmental third parties. Governmental spending, meaning spending directly by state, counties, and local government agencies only, would continue to be allowable under the amended rule. For example, if a state uses funds from its workforce department to fund TANF work programs, the state workforce department is a “governmental third party” and therefore allowable. State and local government entities also frequently combine funding, which would also still be allowable under this proposed rule.
The Department issued policy guidance in 2004 (TANF-ACF-PA-2004-01) implementing a policy that allowed states to claim third-party spending and contributions as countable towards a state's MOE requirement. The guidance noted that the statute did not explicitly provide that in-kind or cash expenditures by sources in the state other than the state or local government may count toward the state's TANF MOE requirement. Further, it noted that the 1999 TANF final rule had not directly addressed the issue, but that states could look to the cost sharing principles in 45 CFR part 92 (currently 45 CFR part 75), which generally apply to TANF. Those cost sharing principles present a range of ways for a state to satisfy cost sharing requirements, including expenditures for allowable costs or cash donations by non-federal third parties and the value of third-party in-kind contributions. The 2004 guidance concluded that third-party in-kind or cash expenditures could count toward a state's MOE requirement, as long as the spending was used for an allowable purpose.
In our interim final rule, promulgated after the Deficit Reduction Act of 2005 (DRA), we codified the policy by amending § 263.2(e) to provide that “[e]xpenditures for benefits or services listed under paragraph (a) of this section may include allowable costs borne by others in the State (
After reviewing how states have implemented this provision, and carefully considering the effects that third-party, non-governmental
Under current rules, states may count non-governmental expenditures by non-profit organizations, corporations, or other private parties as contributions to state MOE. While these expenditures represent efforts made to serve low-income families
In addition to our having concluded that the revision is most consistent with the statutory language and intent of Congress, the Department also believes it is justified as a matter of policy. Since third-party MOE became permissible, experience has shown that counting non-governmental spending as MOE may reduce the overall level of services available to low-income families in a state. Most commonly, these third parties are non-governmental entities already providing food assistance, youth services, family preservation services, or housing assistance. The state then counts these existing third-party expenditures as TANF MOE while reducing its own spending—in essence, substituting private, third-party spending on low-income families that would occur regardless of being counted as state expenditures on MOE, for state spending. For example, if a state's basic MOE requirement were $100 million and it counted $25 million in spending from food banks as MOE, the state could then reduce its own financial commitment from $100 million to $75 million. Consequently, the state could spend $25 million less of its general revenue funds on purposes designed to benefit families with low incomes.
States do not report on the source of MOE so the Department cannot determine how much of its MOE requirement each state is fulfilling using third-party, non-governmental spending. However, according to a 2016 GAO report, 16 states reported counting third-party, non-governmental expenditures toward their required spending level in FY 2015.
This 2016 GAO report also indicated that some of these states asserted that they would be likely to cut services in other areas to reach the basic MOE requirement if third-party, non-governmental dollars could no longer count as MOE. Likewise, some states claimed that they would face penalties or lose partnerships if this provision were implemented. Based on our experience administering the program, we do not expect that these consequences will come to pass, given the few states that currently use this flexibility and the total amount of funds presently at issue. We do not believe there is reason for concern that states would need to cut expenditures for other groups to maintain low-income spending at a level sufficient to meet the MOE requirement, which adjusted for inflation, is less than 40 percent of what the state was spending in FY 1994. Indeed, a state would be more likely to spend additional funds on low-income families to make up for the MOE shortfall if this proposal were to take effect. Moreover, we are not aware of any reason that being unable to count non-governmental expenditures toward MOE requirements should in any way impair or jeopardize partnerships with non-governmental organizations. We invite state agencies and the public to provide information that will shed light on the extent of the use of third-party, non-governmental expenditures to count as MOE.
By proposing to eliminate this provision, our goal is to restore the maintenance-of-effort requirement in a manner consistent with the statutory language and purpose. We invite comment on the effects that this proposed change would have on state programs, budgets, and partnerships.
4.
The Department introduced the idea of counting excused absences and holidays toward the TANF work participation rate in the interim final rule that implemented the legislative changes from the DRA (71 FR 37454, 37466, June 29, 2006). The interim final rule explained that states could count paid employment hours toward the work participation rate by using the hours for which the individual was paid, which therefore allowed paid holidays to count. The Department recognized that individuals in unpaid allowable work activities might also be absent due to a holiday, and therefore the interim final rule allowed states to count “reasonable short-term, excused absences for hours missed due to holidays.” Although the interim final rule did not specify a number of holidays that could count toward the work participation rate, the final rule set the number of holidays at 10 (73 FR 6826, February 5, 2008). In the preamble to that final rule, we noted, “We deliberated at length about the appropriate number [of holidays], considering the number granted on average by private companies, the average number of State paid holidays, and the number of Federal holidays. Ultimately, we chose to limit it to 10 to be consistent with the number of Federal holidays.” (73 FR 6809, February 5, 2008). On June 17, 2021, President Biden signed into law the Juneteenth National Independence Day Act, which established June 19 as an eleventh legal, public holiday.
Under our authority to issue regulations on how to count and verify
As under current rules, each state must designate in its work verification plan the days that it wishes to count as holidays for those in unpaid activities. The Department encourages states to honor our newest public holiday by granting Juneteenth itself as an excused day for TANF participants in unpaid activities.
5.
This proposed rule would amend § 205.55(d) to allow states to use alternative Income and Eligibility Verification System (IEVS) data sources. IEVS is a set of data matches that each state must complete to confirm the initial and ongoing eligibility of a family for TANF-funded benefits. Section 1137 of the Social Security Act (42 U.S.C. 1320b-7) requires a state to participate in IEVS and to match TANF applicant and recipient data with the following information through IEVS:
1. Employer quarterly reports of income and unemployment insurance benefits from the State Wage Information Collections Agency (SWICA);
2. IRS earned income maintained by the Social Security Administration;
3. Immigration status data maintained by the Immigration and Naturalization Service; and
4. Unearned income from the IRS.
Currently, under § 205.55(d), a state may request approval from the Department to use an alternate source or sources of income and eligibility information to meet any of the IEVS data matching requirements. The state must demonstrate that the alternate source is as timely, complete, and useful as the data provided by the original source. When considering applications, we have noticed that this standard is very difficult to meet, particularly with respect to requests for alternatives to the IRS unearned income data. This is largely because the IRS's data represent the most complete set of national information on unearned income, making other sources inherently less complete. Unearned income data are captured through the IRS 1099 form series; there are currently over 15 different 1099 forms, each dependent upon the type of unearned income being reported. Other data sources are not able to capture every distinct type of unearned income. States have repeatedly noted that some of the required IEVS matches, and especially the match with unearned income data from the IRS, are administratively burdensome and neither cost effective nor programmatically useful. They explain that the costs of maintaining the security procedures required for the IRS match are very high, as they include specific staff training and background protocols, as well as establishing a “secure room.” One state indicated that its conservative estimate for these requirements cost over $100,000 annually. At the same time, states have noted the minimal programmatic usefulness of the match with IRS unearned income data, because the majority of recipients of TANF-funded benefits have modest resources and because the data are based on the previous year's tax returns and thus do not clearly reflect the applicant's or participant's current status. We propose to modify the criteria for alternative sources of IEVS data matches so that they are more reasonable and factor in cost effectiveness. Specifically, we propose to allow a state to request to use an alternative data source that is as cost effective rather than as complete as the original source. We would continue to require any alternate data source to be both as timely and useful as the original source. This action would reduce administrative burden on states by allowing them the flexibility to find more cost-effective data matches and perform the ones that are most likely to benefit their programs. This proposal is consistent with the IEVS statute, which provides that certain “wage, income and other information” from certain sources “shall be requested and utilized to the extent that such information may be useful in verifying eligibility for, and the amount of benefits available . . . as determined by the Secretary of Health and Human Services. . . .” § 1320b-7(a)(2). The Department welcomes comments on the current administrative burdens, including cost and time estimates, and usefulness of the required IEVS matches as well as the benefits that might be gained from using more cost-effective alternate data sources.
6.
Each state must meet two minimum work participation rates under TANF for a fiscal year, an overall or “all families” work participation rate and a two-parent work participation rate, or face a financial penalty. The law provides for a single penalty for failing to meet the work participation requirement, even though there are two separate participation rates,
We propose to modify § 261.53(b) to clarify the means of qualifying for “significant progress” when a state that has failed its work participation rate also fails to correct the violation fully in a corrective compliance plan because it has corrected one rate but not both. Specifically, it would more directly address a situation where a state that failed both the overall and two-parents rates for a year and subsequently meets the overall rate (but not the two-parent rate) as part of its corrective compliance plan to qualify for a reduced penalty. It also clarifies the description of the existing formula for calculating significant progress. This modification is within the Secretary's authority to “assess some or all of the penalty . . . if the State does not, in a timely manner, correct or discontinue as appropriate, the violation. . . .” 42 U.S.C. 609(c)(3).
We are proposing to recalculate a state's penalty as if the state had failed only the two-parent work requirement in the penalty year. Two-parent penalties are based on a state's two-parent caseload percentage, which
7.
The seventh proposed change would clarify existing regulatory text about the allowability of costs associated with providing program information. The regulation at 45 CFR 263.0(b)(1)(i) currently provides that “providing program information to clients” is a program cost and not an administrative cost. We propose to delete that language from (b)(1)(i) and create a new subsection (iii) that clarifies the point that administrative costs exclude the costs of disseminating program information. For example, the cost of providing information pamphlets or brochures about how to reduce out-of-wedlock pregnancies is allowable under purpose three, and the cost of providing information about community resources to needy families or needy parents, pursuant to purposes one and two, respectively, is allowable, whether or not the described community resources themselves are funded by TANF.
The TANF statute sets an administrative cap of 15 percent. 42 U.S.C. 604(b). It provides that a “State to which a grant is made under section 403 shall not expend more than 15 percent of the grant for administrative purposes.” 42 U.S.C. 604(b). Section 263.0 implements the cap by making clear which categories of expenditures are program costs that do not count towards the cap, and which qualify as administrative costs and thus count towards the cap. Failure to comply with the administrative cap could lead to a misuse of funds penalty, therefore this proposal falls under the Department's authority to regulate where the Department is charged with enforcing certain TANF provisions (42 U.S.C. 609(a)(3)), and thus fits within the statutory authority granted to the Secretary to regulate state conduct in the TANF program.
To the extent that any portion of the requirements arising from the rule once it becomes final is declared invalid by a court, HHS intends for all other parts of the final rule that are capable of operating in the absence of the specific portion that has been invalidated to remain in effect.
We have examined the impacts of the proposed rule under Executive Order 12866, Executive Order 13563, Executive Order 14094, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all benefits, costs, and transfers of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). This analysis identifies economic impacts that exceed the threshold for significance under Section 3(f)(1) of Executive Order 12866, as amended by Executive Order 14094.
The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes estimates of anticipated impacts, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $177 million, using the most current (2022) Implicit Price Deflator for the Gross Domestic Product. This proposed rule would not likely result in unfunded expenditures that meet or exceed this amount.
As described above, the Department has determined that it is necessary to take regulatory action to strengthen the effectiveness of TANF as the safety net and work program originally intended by Congress. It is critical to implement these reforms at the federal level in order to maintain consistent policies across states that align with congressional intent, while still providing flexibility for states to design programs that meet the specific needs of their populations.
In addition, the package includes provisions that are more technical in nature and are designed to reduce administrative burden and increase program effectiveness. The Department has determined it is necessary to make these changes at the federal level, again to ensure consistency and fairness across states, and to improve the functioning of government.
This analysis finds that the proposed rule would result in a range of transfers of between $1.087 billion and $2.494 billion. The largest impacts from the proposed rules relate to provisions that: establish a ceiling on the term “needy;” determine when an expenditure is “reasonably calculated to accomplish a TANF purpose;” and exclude third-party, non-governmental spending as allowable MOE. These impacts would be constant in every year, beginning in the first fiscal year after the proposed rule is finalized (if it is finalized). Thus, we adopt a one-year time horizon for these impacts, which also do not depend on the choice of discount rate. Figure A below reports these impacts reported in current dollars. This analysis also discusses several policy alternatives to the proposed rule that ACF considered. ACF invites comments on all estimates contained in this analysis.
We have used the best tools available to estimate the transfers associated with this proposed rule, relying on the financial and programmatic data states report on the ACF-196R (the TANF financial data report) and ACF-204 (the Annual MOE) forms. The utility and the limitations of these forms are outlined below. We have focused our analysis on the first two proposals related to allowable spending and the third proposal related to third-party non-governmental MOE, as the financial data reporting allows us to make some estimates of program impacts that may result from these proposed changes. This regulatory impact analysis focuses on activities funded through the TANF program. However, the direct impact within the program does not fully account for services that would continue to be provided in jurisdictions through other funding sources. We seek public comment on these estimates. When deciding whether or not to include a particular program or funding stream in the estimate, the Department made assumptions that are not official determinations of whether programs or services would be impacted by the proposed rule.
On the ACF-196R, there are 29 categories of transfers, expenditures, and unliquidated obligations. Some categories have subcategories that provide additional specificity on how funds were used. For example, category 9 “Work, Education, and Training Activities” is broken up into three smaller subcategories, “Subsidized Employment,” “Education and Training,” and “Additional Work Activities.” Others are quite broad, such as category 17, “Services for Children and Youth.” Even when the subcategories exist, there may be several types of programs or services captured in one category, serving different populations. It is not possible to determine, for example, what percentage of spending in the “Refundable Earned Income Tax Credits” is spent on families above 200 percent of the federal poverty guidelines. One strength of this data source is that states report federal and MOE spending separately, so we can determine how much spending in the reported categories is federal funds and how much is state MOE.
The ACF-204 provides more detail in qualitative and quantitative information about some state MOE programs than the ACF-196R; however, it only encompasses information about MOE spending and is therefore an incomplete picture of spending. We cannot use the ACF-204 to identify the universe of expenditures that may be impacted by the proposed rule, as federal programs will not be included, and some states may have excluded significant portions of their MOE programs. The form can, however, provide some additional context and examples for types of programs that may be impacted.
The Department proposes that each provision would go into effect in the fiscal year following the publication of the final rule. The intent of the proposed implementation timeline is to provide states with appropriate time to understand the provisions, develop responses, and shift funding if necessary to be in compliance and avoid potential penalties. The Department seeks comment on the appropriateness of the proposed timeline.
This proposed rule would require each state's definition of needy applied to all federal TANF and state MOE expenditures that are subject to a federally required needs standard to be limited to individuals in families with incomes at or below 200 percent of the federal poverty guidelines. A state is able to use definitions of “needy” that are at any level at or below 200 percent of the federal poverty guidelines but state definitions of “needy” could not exceed 200 percent of the federal poverty guidelines under this proposed change.
If states maintained their current behavior following the implementation of this rule, state spending on families over 200 percent of the federal poverty guidelines would no longer be countable as MOE. A state could fail to reach its MOE requirements and incur a penalty. This would create an incentive for new behavior from states to transfer MOE spending from families above 200 percent of the federal poverty guidelines to families at or below that limit.
To determine the impacts on spending of this provision, ACF reviewed ACF-204 reports and TANF state plans for FY 2021 and identified programs that had eligibility that included families over 200 percent of the federal poverty guidelines. This approach is limited by the wide variation in quality of reports across states, and it was not possible to have a comprehensive view of all states. TANF state plans have information about both federal and MOE TANF programs, but not expenditure amounts. The ACF-204 reports are limited to MOE spending but provide both program eligibility information and expenditure amounts. As a result, we were able to estimate the number of states with either federal or MOE spending on programs that have needs or eligibility standards of over 200 percent of the federal poverty guidelines. But because the ACF-204 reports are limited to MOE, we were only able to estimate expenditure amounts for MOE spending.
In at least 40 states and the District of Columbia, ACF identified programs, either federal or MOE-funded, with income limits of over 200 percent of the federal poverty guidelines. There were several different types of programs, including pre-kindergarten, child welfare, tax credits, employment, housing, and emergency assistance. In some programs, limits were 80 percent of the state median income, while others had limits based on the federal poverty guidelines (
In addition to a short description of each MOE program type, states also reported the amount of state MOE expenditures for each program on the ACF-204. In 22 states and the District of Columbia, ACF identified programs funded with MOE that had needs or eligibility standards of over 200 percent of the federal poverty guidelines. We estimate that total state MOE expenditures on identified programs with eligibility of over 200 percent of the federal poverty guidelines was $2.92 billion in FY 2021. Because federal spending is not included, this will be an underestimate.
Of that $2.92 billion, only a percentage would have been spent on families with incomes above 200 percent of the federal poverty guidelines. There may be great variation across states and programs in the proportion of funds that are spent on families with higher incomes. ACF estimates that the range of funds spent on families above 200 percent of the federal poverty guidelines was between 5-20 percent, which is $146.2 million to $584.9 million (see Figure B). With the proposed rule, the impacted amount would be transferred to programs and services for families with incomes below 200 percent of the federal poverty guidelines.
To avoid a penalty, states would shift the $146.2 to $584.9 million in spending for families with incomes over 200 percent of the federal poverty guidelines to services for families with incomes at or below 200 percent of the federal poverty guidelines. This would represent a transfer focusing on supports for the families that need TANF services the most.
States are able to spend federal TANF and MOE funds on activities that are “reasonably calculated to accomplish” one or more of TANF's four purposes: (1) to assist needy families so that children may be cared for in their own homes; (2) to end dependence of needy parents on government benefits by promoting job preparation, work and marriage; (3) to prevent and reduce the incidence of out-of-wedlock pregnancies; and (4) to encourage the formation and maintenance of two-parent families. The proposed rule would amend 45 CFR 263.11 to add a new subsection (c) that sets forth the reasonable person standard for assessing whether an expenditure is “reasonably calculated to accomplish the purpose of this part” 42 U.S.C. 604(a)(1). The proposed regulation defines it to mean expenditures that a reasonable person would consider to be within one or more of the enumerated four purposes of the TANF program.
With the proposed rule, spending that does not meet the reasonable person standard will not be allowable. We expect that some of the current TANF and MOE spending, if continued after the implementation of this rule, would not meet this standard. When considering the impacts on spending of this provision, ACF identified the major ACF-196R expenditure areas where spending may be impacted: pre-kindergarten and Head Start, services for children and youth, child welfare, and college scholarships. Much of the spending claimed in these categories would continue to be allowable under the proposed rule if states demonstrate that it meets the reasonable person standard. However, for some expenditures, states will not be able do this, and that spending would not be allowable. The Department made assumptions about a percentage range of spending in a given expenditure category or subcategory that would no longer be allowable under the proposed rule in order to estimate impacts. The Department then considered the cumulative impact across categories to identify the possible responses of states and estimate economic impact. The Department welcomes comments on these estimates, described below.
ACF expects that a proportion of current spending reported under the “Pre-Kindergarten and Head Start” category on the ACF-196R under purposes three and four would not meet the proposed criteria of meeting the reasonable person standard. States with spending on pre-kindergarten and Head Start may be able to claim them as being directly related to purpose two, by demonstrating that the services provide a needed support so that parents may prepare for or go to work. Some states may already be claiming pre-kindergarten and Head Start MOE as purpose two, and others may be able to shift their spending from other purposes to purpose two. This may lead states to change how they claim this spending. If they are currently claiming spending under purpose three or four, they might shift to claiming under purpose two if they can demonstrate that the service helps parents prepare for, obtain, or maintain work. This would not represent a change in spending, but a change in categorization. The Department expects that a substantial portion of pre-kindergarten or Head Start spending may be allowable under purpose two. If states do categorize pre-kindergarten or Head Start spending under purpose two, they would be required to meet the 200 percent of the federal poverty guidelines standard of “needy” as proposed in the NPRM. If states are currently spending TANF funds on pre-kindergarten or Head Start for families over 200 percent of the federal poverty guidelines, they would need to shift or narrow that spending to families at or under 200 percent of the federal poverty guidelines.
In FY 2021, 28 states reported spending $2.9 billion on “Early Care and Education-Pre-Kindergarten/Head Start” (see Figure C). A reasonable estimate for the proportion of funds that would no longer be allowable may be 10-50 percent (see Figure D). We selected this range because of our expectation that a substantial portion of pre-kindergarten and Head Start spending will be allowable under purpose two, while making the range broad to capture the uncertainty due to lack of detailed data. The Department expects that this would not be uniformly distributed across states, however we do not have detailed data to estimate accurately which states would be most impacted.
In FY 2021, 28 states reported a total of $925.0 million in federal TANF and MOE expenditures on “Services for Children and Youth.” A wide variety of services and programs may fall in this category, including after-school programs and mentoring or tutoring programs. The Department expects that many of these programs would not meet the reasonable person standard, though programs focused on preventing teen pregnancy and non-marital childbearing would likely be allowable. Because of data availability, the Department is presenting a wide range of estimates for the amount of spending in this category that would no longer be allowable under the proposed rule, from 10-50 percent. We welcome comments on the accuracy of this estimate. If 10 to 50 percent of the FY 2021 expenditures were no longer allowable, that would represent $92.5 to $462.5 million.
In FY 2021, states spent approximately $1.9 billion in federal TANF and MOE funds on “Child Welfare Services.” This category includes the three subcategories “20.a Family Support/Family Preservation/Reunification Services,” “20.b Adoption Services,” and “20. C Additional Child Welfare Services” (see Figure F). The Department expects that most or all spending in 20.a and 20.b would still be allowable under the proposed rule, which is approximately 51 percent of the FY 2021 Child Welfare Services spending. The Department expects that some of the spending in 20.c “Additional Child Welfare Services,” such as expenditures on child protective services investigations, would not meet the reasonable person standard and will therefore not be allowable.
States do not report enough detail on child welfare expenditures to determine conclusively the amount of spending that would no longer be allowable. Therefore, the Department estimates that 10 to 50 percent of the current “Additional Child Welfare Services” spending would not be allowable. The impact of this would vary across states. In FY 2021, 23 states reported spending “Additional Child Welfare Services” funds on the ACF-196R. If 10 to 50 percent of this spending were no longer allowable, that would be $96.7 to $483.6 million, or 5 to 25 percent of FY 2021 “Child Welfare Services” spending (see Figure G).
Education and training for parents with low incomes is a critical element of the TANF program's capacity to increase opportunities for family economic mobility. However, the Department is aware of instances of TANF funds being used for college scholarships for adults without children. Under the proposed rule, college scholarships for adults without children would not meet the reasonable person standard.
To estimate spending on college scholarships, ACF examined spending reported on the ACF-196R under “Education and Training” or “non-EITC refundable tax credit.” Depending on
To identify possible state responses to this provision, we looked at the cumulative impact of spending in the four categories described above, and at federal and MOE spending separately, because states incur different types of penalties depending on the type of spending. Figure I summarizes the amount of spending in each category, broken out by federal and MOE. In FY 2021, states spent $1.5 billion in federal funds on pre-kindergarten and Head Start, services for children and youth, additional child welfare services, and college scholarships. States claimed $4.5 billion in maintenance-of-effort spending on those categories. As discussed previously, we expect that a portion of this spending would be non-allowable under the reasonably calculated provision.
In FY 2021, 37 states had federal spending in these categories that we expect may be impacted under the reasonably calculated provision. Taking into account the estimated percentage range of non-allowable spending in each category described previously, we estimate that between $598.1 and $1.13 billion of the total $1.47 billion in federal spending in these categories would be non-allowable (see Figure J.) Therefore, if states did not change their behavior in the year following the enactment of the proposed rule, 37 states would spend between $598.1 and $1.14 billion total in federal TANF funds on services that are non- allowable. In the following fiscal year, the audit process would identify the non-allowable spending, and states would incur a penalty for misuse of funds in the year following the audit. With this penalty, the federal block grant award is reduced by the amount of TANF funds misused. States are required to replace these federal funds with state funds. This would be a transfer of between $598.1 and $1.127 billion in state funds from other uses to TANF. The states would incur the
To meet the basic MOE requirement, states must claim state expenditures each fiscal year of at least 80 percent of a historic State expenditure level for “qualified State expenditures.” If a state meets the minimum work participation rate requirements for all families and two-parent families, they only need to spend at least 75 percent of the historic amount. For the purpose of this analysis, we assume that all states have an 80 percent MOE requirement, because states do not know which level they are required to meet until after the fiscal year is over.
In FY 2021, 38 states claimed MOE spending in at least one of the four categories we analyzed as possibly being impacted under the reasonably calculated provision, totaling $4.49 billion. Taking into account the estimate range of non-allowable spending within each category described previously, we estimate that between $854.7 million and $2.60 billion of this spending would be non-allowable under the proposed provision.
Under the proposed reasonably calculated provision, if states were to make no changes to their behavior, they would spend between $854.7 million and $2.60 billion that is non-allowable as MOE. When reviewing state spending, the Department would not “count” this spending as MOE. A state with non-allowable spending would have its MOE level reduced by the amount of non-allowable spending.
This reduction in MOE will have different impacts on states depending on their levels of MOE spending. For example, a state may have a $100 million MOE requirement, and claim $120 million in MOE spending. If $15 million of that spending is non-allowable, the state's MOE level would be reduced to $105 million. The state would still meet the MOE requirement. Many states claim “excess MOE,” meaning they claim more MOE spending than needed to meet their basic requirement. So, the Department expects after the rule's enactment, most states will still have enough MOE spending to meet their basic requirement and therefore will not be impacted if they do not change their MOE spending behavior.
However, some states may not be able to meet the MOE requirement after subtracting non-allowable spending. For example, if a state has a $100 million MOE requirement, claims $120 million in MOE spending, but $40 million is non-allowable, their MOE spending will be reduced to $80 million. They would not meet their basic MOE requirement and would be assessed a penalty for failing to meet the TANF MOE requirement. In the next fiscal year, their federal TANF grant would be reduced by the amount of the shortfall, $20 million. The state then would need to “replace” those funds by spending an additional $20 million in state funds. This would be a transfer of state funds from their status quo use to MOE.
We applied the estimated percentage range of non-allowable spending in each category to state spending in FY 2021, subtracting each state's estimated amount of non-allowable spending from its reported MOE spending. We identified states where this reduction would result in their failure to have enough MOE to meet the 80% MOE requirement, performing this analysis for the low and high ends of the estimated non-allowable spending range.
Of the 38 states who claimed MOE spending in one or more of the four analyzed categories, we estimate that between five and nine states would fail to meet the MOE requirement under the reasonably calculated provision. The amount of MOE shortfall would be between $196.8 and $636.1 million (Figure K). If states did not change their behavior, these five to nine states would be penalized for failing to meet the TANF MOE requirement. They would need to transfer between $196.8 and $636.1 million in state funds to TANF MOE. We expect that this would incentivize impacted states to change behavior to avoid a penalty.
States that reported federal TANF spending in these categories could shift the subset of non-allowable federal spending to other programs or services that are directly related to a TANF purpose. For pre-kindergarten and Head Start spending, states may be able to recategorize the non-allowable spending claimed under purpose three as purpose two. We estimate that the total transfer for federal TANF spending would be between $598.1 million and $1.13 billion.
States that claimed MOE spending in these categories could shift spending that is non-allowable under the reasonably calculated provision to other programs or services that are directly
Our estimates only include four spending categories, which we selected because we believe they represent the majority of non-allowable spending. With the implementation of the rule, we may identify non-allowable spending in other categories, which could change the number of impacted states and amount of non-allowable spending.
Our analysis assumes that the percentage of spending on the four categories that is non-allowable is consistent across states. We expect that this is not the case, and that depending on the services provided, some states may have proportionally more non-allowable spending than others. We try to compensate for this by having fairly broad ranges in our estimates.
Currently, states are able to count spending by third-party, non-governmental entities toward their MOE and Contingency Fund spending requirements. This third-party, non-governmental spending often occurs in programs outside of the TANF program but for services and benefits that meet TANF allowable purposes. States do not report data to ACF about the source of their MOE; we have based our analysis on information from a GAO study published in 2016, the only published data available for analysis.
If these states did not change their behavior following the implementation of a final rule that adopts the provision on third-party, non-governmental MOE as proposed, they would each fall short of meeting the basic MOE requirement by the amount of third-party, non-governmental expenditures that counted toward basic MOE. Each would be assessed a penalty that reduced the TANF grant by the amount of the shortfall. They would have to expend additional state funds beyond their MOE requirement, which do not count as MOE, in the year after we impose the penalty, to replace the reduction of the federal grant. This would represent a transfer of state funds to the TANF program from other state spending. Assuming that all five states failed to expend additional MOE in the first year of implementation to substitute for any of their third-party, non-governmental MOE, a total of $145.7 million of TANF spending would be transferred from the states to the federal government.
We have limited information about third-party non-governmental expenditures, and we cannot accurately estimate how much a state may fall short of its basic MOE requirement in a given year. However, for a state that would need to increase state MOE spending to comply with its basic MOE requirement after changes in this regulation take effect, the impact of falling short and having a penalty would be twice as great as increasing MOE spending and avoiding a penalty. Therefore, we anticipate that states will have an incentive to shift state spending to avoid a penalty. States would transfer spending toward their TANF programs or identify additional state governmental spending that meets one or more of the purposes of TANF and qualifies as MOE.
Under this proposed rule, we do not expect that the third-party, non-governmental expenditures on TANF-eligible individuals would decrease, because these are typically funds that these organizations spend, regardless of the state's ability to count them toward the TANF MOE requirement. It is possible that governmental spending on TANF-eligible individuals would stay the same (by identifying additional existing
This proposal would realign the TANF rules with respect to holidays to the number of federal holidays. It would revise § 261.60(b) to increase from 10 to 11 the maximum number of holidays permitted to count in the work participation rate for unpaid work activities in the fiscal year. The proposal would not alter the calculation for individuals participating in paid work activities, which includes the hours for which an individual was paid, including paid holidays and sick leave, and which can be based on projected actual hours of employment for up to six months, with documentation. There is negligible anticipated fiscal impact of this provision.
IEVS is a set of data matches that each state must complete to confirm the initial and ongoing eligibility of a family for TANF-funded benefits. State TANF programs are required to participate in IEVS and must match TANF applicant and recipient data with four types of information through IEVS. The Department is proposing to change the criteria for alternate sources of income and eligibility information, which would provide flexibility to states to find more effective data matches and perform the ones that are likely to benefit their programs the most. States will have the option of continuing the status quo IEVS measures or of using the proposed flexibility to use alternative measures. For states that choose to use this flexibility, there will be upfront costs of staff time to develop new criteria and submit them for approval, along with costs of ongoing monitoring and compliance. The main benefit will likely be the cost effectiveness of alternative sources of data matching. We have not quantified these impacts. Because they have the option of maintaining the status quo, we expect that states will only invest upfront and ongoing resources if this cost to them is outweighed by the benefits of the flexibility. The Department expects a reduction in administrative burden for states that opt to take up this provision and welcomes comments from states about the impact of this provision on administrative burden or other costs and benefits.
This proposal would add a clearer means of qualifying for “significant progress” when a state that has failed its work participation rate also fails to correct the violation fully in a corrective compliance plan. Specifically, it would permit a state that failed both the overall and two-parents rates for a year and subsequently meets the overall rate (but not the two-parent rate) as part of its corrective compliance plan to qualify for a reduced penalty. The Department considers this proposal necessary to improve governmental processes and expects a reduction in potential financial penalties by making penalties commensurate with the degree of the state's remaining noncompliance.
The seventh proposed change would clarify existing regulatory text about the allowability of costs associated with providing program information. We propose to clarify the point that administrative costs exclude the costs of disseminating program information. The Department considers this necessary to provide clarification because the TANF statute sets an administrative cap of fifteen percent and failure to comply with the administrative cap could lead to a misuse of funds penalty. We do not expect that this will have a fiscal impact because it is only clarifying our longstanding statutory interpretation.
We identify a one-time cost to ACF's Office of Family Assistance to revise the Compliance Supplement for the Office of Management and Budget's Uniform Administrative requirements, Cost principles, and Audit Requirements Regulations. For the purposes of this analysis, we assume these tasks would be performed by federal employees on the General Schedule payscale at grade 14, step 5, in the locality pay area covering ACF headquarters in Washington, DC, earning an hourly wage of $71.88.
We identify a one-time cost to agencies that administer TANF programs to read and understand the proposed rule. Given the length of the preamble (approximately 21,600 words) and average reading speeds about 225 words per minute,
We also identify a cost to agencies that administer TANF programs to determine whether they are in compliance with the regulatory requirements of the proposed rule. We model this impact as one program administrator and one budget officer per jurisdiction each spending 3 work days on this effort, or 48 total working hours per jurisdiction. To monetize this impact, we adopt an average pre-tax hourly wage for managers of $63.08 per hour, and a corresponding fully loaded wage of $126.16. For this impact, we calculate costs of $6,055.68, and total costs of $327,006.72 across all jurisdictions.
In total, we identify $23,001.60 in costs to ACF, $347,818.75 in costs to jurisdictions administering TANF programs, and $370,820.35 in incremental administrative costs attributable to the proposed rule. We request comment on these cost estimates, including to identify any additional sources of costs of this proposed rule.
In developing this proposed rule, the Department carefully considered the alternative of maintaining the status quo. If the Department does not act, states will be able to continue funding services that do not align with congressional intent. Additionally, there will be valuable missed opportunities to increase administrative efficiency and to support states in designing and implementing effective work programs that provide positive benefits to participants and society.
In addition to maintaining the status quo, we considered other alternatives to the proposals in the NPRM.
The Department also reviewed general eligibility limits for several other major federal programs that serve families with very low incomes, as shown in Figure L.
Because of the wide variety of services funded by TANF, the Department is aware that states may have strategically designed services so that TANF programs can enhance and complement other federal programs while still serving needy families. By setting a ceiling above the limit of many other programs, the Department allows for state flexibility while also aligning closely with another grant that also funds a variety of services for needy families, the Social Services Block Grant.
For context, for a family of three in 2021, this would be an annual income of $65,880. The monthly average would be $5,490, which is 1.5 times greater than the highest state eligibility limit for ongoing eligibility for cash assistance in 2021. Given that 300 percent greatly exceeds the highest income limit for cash assistance initial eligibility, and that it is substantially higher than other federal program income eligibility limits (see Figure L), the Department rejected a 300-percent limit, as it did not appear to be aligned with congressional intent for programs that serve needy families.
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. For purposes of the RFA, states and individuals are not considered small entities. As the rule directly and primarily impacts states and indirectly impacts individuals, it has been determined, and the Secretary proposed to certify certifies, that this proposed rule would not have a significant impact on a substantial number of small entities.
Under the Paperwork Reduction Act (44 U.S.C. 3501
Executive Order 13132 requires federal agencies to consult with state and local government officials if they develop regulatory policies with federalism implications. Federalism is rooted in the belief that issues that are not national in scope or significance are most appropriately addressed by the level of government closest to the people. While the Department has not identified this rule to have federalism implications as defined in the Executive Order, consistent with Executive Order 13132, the Department specifically solicits and welcomes comments from state and local government officials on this proposed rule.
Section 654 of the Treasury and General Government Appropriations Act of 2000 (Pub. L. 106-58) requires federal agencies to determine whether a policy or regulation may affect family well-being. If the agency's determination is affirmative, then the agency must prepare an impact
Jeff Hild, Acting Assistant Secretary of the Administration for Children and Families, approved this document on September, 20, 2023.
Computer technology, Grant programs—social programs, Public assistance programs Reporting and recordkeeping requirements, Wages.
Reporting and recordkeeping requirements, Wages.
Administrative practice and procedure, Grant programs—social programs, Public assistance programs.
Administrative practice and procedure, Employment, Grant programs—social programs, Public assistance programs, Reporting and record keeping requirements.
Administrative practice and procedure, Grant programs—social programs, Public assistance programs, Reporting and record keeping requirements.
For the reasons set forth in the preamble, we propose to amend 45 CFR Subtitle B, Chapter II, as follows:
42 U.S.C. 602, 603, 606, 607, 1302, 1306(a), and 1320b-7: 42 U.S.C. 1973gg-5.
(d) The Secretary may, based upon application from a State, permit a State to obtain and use income and eligibility information from an alternate source or sources in order to meet any requirement of paragraph (a) of this section. The State agency must demonstrate to the Secretary that the alternate source or sources is as timely and useful, and either as complete or as cost effective for verifying eligibility and benefit amounts as the data source required in paragraph (a) of this section. The Secretary will consult with the Secretary of Agriculture and the Secretary of Labor prior to approval of a request, as appropriate. The State must continue to meet the requirements of this section unless the Secretary has approved the request.
42 U.S.C. 601, 601 note, 603, 604, 606, 607, 608, 609, 610, 611, 619, and 1308.
42 U.S.C. 601, 602, 607, and 609; Pub. L. 109-171.
(b) To qualify for a penalty reduction under § 262.6(j)(1) of this chapter, based on significant progress towards correcting a violation, a State must either:
(1) Reduce the difference between the participation rate it achieved in the fiscal year for which it is subject to a penalty and the rate applicable for the fiscal year in which the corrective compliance plan ends (adjusted for any caseload reduction credit determined pursuant to subpart D of this part) by at least 50 percent; or
(2) Have met the overall work participation rate during the corrective compliance plan period but did not meet both the overall and two-parent work participation rates in the same fiscal year during the corrective compliance plan period, if the State failed both the overall and two-parent work participation rates in the fiscal year for which it is subject to a penalty.
(b) * * * For participation in unpaid work activities, it may include excused absences for hours missed due to a maximum number of holidays equal to the number of federal holidays in a fiscal year, as established in 5 U.S.C. 6103, in the preceding 12-month period and up to 80 hours of additional excused absences in the preceding 12-month period, no more than 16 of which may occur in a month, for each work-eligible individual. Each State must designate the days that it wishes to count as holidays for those in unpaid activities in its Work Verification Plan. In order to count an excused absence as actual hours of participation, the individual must have been scheduled to participate in a countable work activity for the period of the absence that the State reports as participation. * * *
42 U.S.C. 604, 607, 609, and 862a; Pub. L. 109-171.
(b) * * *
(1) * * *
(i) For example, it excludes costs of providing diversion benefits and services, screening and assessments, development of employability plans, work activities, post-employment services, work supports, and case management. It also excludes costs for contracts devoted entirely to such activities.
(iii) It excludes costs of disseminating program information, such as information about program services, information about TANF purposes, or other information that furthers a TANF purpose.
(e) Expenditures for benefits or services listed under paragraph (a) of this section are limited to allowable costs borne by State or local governments only and may not include cash donations from non-governmental third parties (
(c) If an expenditure is identified that does not appear to HHS to be reasonably calculated to accomplish a purpose of TANF (as specified at § 260.20 of this chapter), the State must show that it used these funds for a purpose or purposes that a reasonable person would consider to be within one or more of the four purposes of the TANF program (as specified at § 260.20 of this chapter).
National Aeronautics and Space Administration.
Proposed rule.
NASA is proposing to amend the NASA Federal Acquisition Regulation Supplement (NFS) as well as corresponding sections of the CFR at 48 CFR part 1831 and 1852 to remove NFS 1831.205-671, Solicitation provision, and NFS Clause 1852.231-71, Determination of Compensation Reasonableness.
Comments are due December 1, 2023.
Edgar Lee, NASA HQs, Office of Procurement Management and Policy Division, LP-011, 300 E. Street SW, Washington, DC 20456-001. Telephone 202-420-1384; facsimile 202-358-3082.
NASA is proposing to amend the NFS by removing NFS 1831.205-671, Solicitation provision, and NFS 1852.231-71, Determination of Compensation Reasonableness, from the NFS. NASA has determined that these provisions are unnecessary as the as they exceed the scope requirements adequately covered in FAR provision 52.222-46, Evaluation of Compensation for Professional Employees. Currently, NFS requires an evaluation for all labor categories and periodic review of total compensation plans after contract award for cost reimbursement contracts (at least every 3 years) to evaluate the reasonableness of compensation for all proposed labor categories in service contracts.
NASA has made a determination to rely on FAR provision 52.222-46, agencywide templates, and instructions, to ensure consistency in the data provided to NASA and subsequent evaluations as well as ensuring NASA continues to pay fair and reasonable wages.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review by OMB under E.O. 12866, Regulatory Planning and Review. This rule is not a major rule under 5 U.S.C. 804.
NASA does not expect this rule, when enacted, to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rulemaking consistent with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 and NFS Case 2023-N002 in correspondence.
The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply. The changes proposed in this rulemaking will make an existing information collection currently approved under Office of Management and Budget (OMB) control number 2700-0077,
Accounting, Government procurement.
Accounting, Government procurement, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, NASA proposes to amend 48 CFR parts 1831 and 1852 as follows:
51 U.S.C. 20113(a) and 48 CFR chapter 1.
51 U.S.C. 20113(a) and 48 CFR chapter 1.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations to implement amendments to the Fishery Management Plans (FMPs) for the Snapper-Grouper Fishery of the South Atlantic Region (Snapper-Grouper FMP), the Golden Crab Fishery of the South Atlantic Region (Golden Crab FMP), and the Dolphin and Wahoo Fishery of the Atlantic (Dolphin and Wahoo FMP), referenced here as the Acceptable Biological Catch (ABC) Control Rule Amendments. If implemented, this proposed rule would modify the ABC control rules, allow the phase-in of ABC changes, allow some carry-over of an unharvested portion of the annual catch limit (ACL) to the following fishing year, and modify the FMP framework procedures to implement carry-overs of ACLs when appropriate. The purpose of this proposed rule is to ensure catch level recommendations are based on the best scientific information available, prevent overfishing while achieving optimum yield (OY), and increase flexibility in setting catch limits. NMFS also proposes an administrative clarification to existing regulations for the Snapper-Grouper FMP framework procedure.
Written comments must be received no later than November 1, 2023.
You may submit comments on the proposed rule, identified by “NOAA-NMFS-2023-0067,” by either of the following methods:
•
•
An electronic copy of the ABC Control Rule Amendments, which includes an environmental assessment, a fishery impact statement, and a regulatory impact review, may be obtained from the NMFS Southeast Regional Office website at
Nikhil Mehta, telephone: 727-824-5305, or email:
The South Atlantic snapper-grouper and golden crab fisheries are managed under the Snapper-Grouper FMP and Golden Crab FMP, respectively. The dolphin and wahoo fishery of the Atlantic is managed under the Dolphin and Wahoo FMP. These three FMPs were prepared by the South Atlantic Fishery Management Council (Council) and are implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Council has developed, and submitted to NMFS for review and approval, the Comprehensive Acceptable Biological Catch Control Rule Amendment: Revisions to the Acceptable Biological Catch Control Rules and Specifications for Carry-Overs and Phase-Ins. The Council document is composed of Amendment 45 to the Snapper-Grouper FMP, Amendment 11 to the Golden Crab FMP, and Amendment 11 to the Dolphin and Wahoo FMP.
The Council and NMFS manage snapper-grouper species and golden crab in Federal waters from North Carolina south to the Florida Keys. The dolphin and wahoo fishery is managed in Federal waters from Maine south to the Florida Keys.
The Council's Scientific and Statistical Committee (SSC) developed an ABC control rule in 2008, using uncertainty and risk traits to determine the acceptable risk of overfishing. The ABC control rule is the method by which the ABC for a stock is set, ideally based on an overfishing limit (OFL) from a stock assessment but at times established using more data-limited methodologies. The acceptable risk of overfishing is denoted as P-Star (P*) and is applied through assessment projections to develop the SSC's ABC recommendation. During development of the Comprehensive ACL Amendment by the Council, the SSC recommended adding additional levels of specificity to the ABC control rules to better address unassessed and data-limited stocks. The Comprehensive ACL Amendment included the ABC control rules for the Snapper-Grouper, Golden Crab, and Dolphin and Wahoo FMPs in 2012 (77 FR 15916, March 16, 2012). In 2015, the ABC control rule for the Snapper-Grouper FMP was revised by adding the Only Reliable Catch Stocks (ORCS) approach for applicable snapper-grouper stocks in Amendment 29 to the Snapper-Grouper FMP (80 FR 30947, June 1, 2015). The ORCS approach was recommended by the Council's SSC for calculating ABC values for unassessed stocks when only reliable catch information is available, and was determined to be based on the best scientific information available.
In October 2016, NMFS published a final rule to revise the guidelines for National Standard 1 (NS1) of the Magnuson-Stevens Act (81 FR 71858, October 18, 2016). NS1 states that fishery conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. One of the objectives of the 2016 NS1 revisions was to provide additional flexibility within current statutory limits to address fishery management issues. For example, the revised NS1 guidelines allow for changes in catch limits to be phased in over time and is also described as “phase-in” in the ABC Control Rule Amendments and this proposed rule. The revised guidelines also allow for some of the unused portion of an ACL to be carried over from 1 fishing year to the next, which is also described as “carry-over” in this proposed rule. Fishery management councils, NMFS regions, and stakeholders have expressed considerable interest in using the phase-
The ABC Control Rule Amendments and this proposed rule would modify the framework procedures in the Snapper-Grouper, Golden Crab, and Dolphin and Wahoo FMPs to allow for the future transfer, if pre-qualifying criteria are met, of an unharvested portion of a stock, total, or sector-specific ACL to the following fishing year (details are described in the
The current framework procedure for the Snapper-Grouper FMP in the regulations at 50 CFR 622.194 was implemented by Amendment 29 to the FMP in 2015. The current framework procedure allows for changes via rulemaking to: biomass levels, age-structured analyses, target dates for rebuilding overfished species, maximum sustainable yield (MSY) (or proxy), OY, ABC, total allowable catch (TAC), quotas (including a quota of zero), ACLs, annual catch targets (ACTs), accountability measures (AMs), maximum fishing mortality threshold (MFMT), minimum stock size threshold (MSST), trip limits, bag limits, size limits, gear restrictions (ranging from regulation to complete prohibition), seasonal or area closures, fishing year, rebuilding plans, definitions of essential fish habitat (EFH), EFH, EFH habitat areas of particular concern (HAPCs), or coral HAPCs, restrictions on gear and fishing activities applicable in EFH and EFH HAPCs, and establish or modify spawning special management zones (SMZs).
The current framework procedure for the Golden Crab FMP in the regulations at 50 CFR 622.252 was implemented by the final rule for the original Golden Crab FMP in 1996 (61 FR 43952, August 27, 1996). The current framework procedure allows for changes via rulemaking to: biomass levels, age-structured analyses, MSY, ABC, TAC, quotas (including quotas equal to zero), trip limits, minimum sizes, gear regulations and restrictions, permit requirements, seasonal or area closures, sub-zones and their management measures, time frame for recovery of golden crab if overfished, fishing year (adjustment not to exceed 2 months), observer requirements, authority for the NMFS Regional Administrator (RA) to close the fishery when a quota is reached or is projected to be reached, definitions of EFH, EFH HAPCs, or Coral HAPCs.
The current framework procedure for the Dolphin and Wahoo FMP in the regulations at 50 CFR 622.194 was implemented by Amendment 5 to the Dolphin and Wahoo FMP in 2014 (79 FR 32878, June 9, 2014). The current framework procedure allows for changes via rulemaking to: biomass levels, age-structured analyses, target dates for rebuilding overfished species, MSY (or proxy), OY, ABC, TAC, quotas (including a quota of zero), ACLs, ACTs, AMs, MFMT, MSST, trip limits, bag limits, size limits, gear restrictions (ranging from regulation to complete prohibition), seasonal or area closures, fishing year, rebuilding plans, definitions of EFH, EFH HAPCs, or Coral HAPCs, restrictions on gear and fishing activities applicable in EFH and EFH HAPCs, and establish or modify spawning SMZs.
The existing framework procedures for the three FMPs in this proposed rule already enable the Council to ask the SSC to consider recommending a temporary, higher ABC. However, the existing approach is not efficient for changes to catch levels and would likely not allow the Council and NMFS to develop and implement changes to catch levels, given the timing of Council and SSC meetings, the time required to develop a framework action, and the time needed for NMFS to implement changes to catch levels within a fishing year based on landings from the previous year.
If NMFS implements this proposed rule, the potential for carry-over of an ACL would not be immediate. Before NMFS could implement an ACL carry-over, NMFS would have to implement this proposed rule. Then, other preceding steps by the Council, SSC, and NMFS must occur.
A future stock assessment must determine if carry-over is possible for that species and specify the appropriate catch level. Then, the SSC would determine and recommend an ABC to the Council and the Council would develop an FMP amendment or framework action for the species with the option of ACL carry-over. If the required rulemaking for a catch level change that would follow was implemented by NMFS, then that species would be eligible for future carry-over through a subsequent abbreviated framework action under the abbreviated framework procedures described in this proposed rule. To support potential carry-over justification, a Term of Reference, would be added to each future stock assessment to project the maximum amount of landings beyond the ABC that could be carried over in 1 year while not resulting in overfishing, or in the stock becoming overfished, within the projection period.
When the Council develops a subsequent fishery management action in response to a stock assessment to specify or revise an ABC and ACL for a stock or sector, the Council would determine whether carry-over would be authorized if annual conditions cause a stock ACL or sector ACL to qualify for carry-over. In doing so, the Council would consider the potential need for, and benefits of, carry-over for a stock that could become eligible according to criteria specified in the ABC control rule. The Council would also consider the duration of time when the specified ABC and ACL are effective. An FMP amendment or framework action that specifies carry-over for a stock or sector would include analysis of the relevant biological, economic, and social information necessary to meet the criteria and guidance of the ABC control rule.
Following the conclusion of each fishing year, Council staff would notify the Council if any stocks and sectors for which carry-over is approved qualify based on the previous year's landings, and may necessitate using preliminary landings estimates from the previous year if those landings data are not yet finalized. If a stock or sector qualifies for carry-over according to specifications of the ABC and annual landings meet criteria specified in the
The proposed carry-over procedure for eligible fish stocks or fishery sectors generally would not require additional advisory panel (AP) input or SSC recommendation, because input relevant to an ABC being approved with potential for carry-over would be part of the prior development process for the FMP amendment or framework in which the ABC and ACL for a stock or sector are already specified. Application of the carry-over procedure is expected to be routine and formulaic.
The NMFS RA would review any Council recommendations for carry-over and supporting information. If the RA concurs that the Council's recommendations are consistent with the objectives of the applicable FMP, the Magnuson-Stevens Act, and all other applicable law, the RA would be authorized to implement the Council's proposed action through publication of appropriate notification in the
If the Council chooses to deviate from the criteria and guidance of the proposed ABC control rules, this abbreviated process would not apply.
Further details of the proposed process can be found in section 2.4.1 and Appendix J of the ABC Control Rule Amendments. An example of the carry-over can be found in Appendix H of the ABC Control Rule Amendments.
The proposed process would allow carry-overs to occur in a more timely manner than that of an FMP amendment or framework action. A faster process is necessary due to the year-to-year nature of carry-overs. Under-harvest of an ACL may only be carried over in the immediate next year. Therefore, defining a stock's eligibility and the amount of ACL being carried over must occur quickly enough such that the fishery has time to harvest the carried over amount within the fishing year following a year of under-harvest. The proposed process also provides the Council discretion in determining whether carry-over should be applied to a potentially eligible stock when setting the ABC and ACL.
It is important to note that this proposed rule would not change current ABCs or ACLs for any species managed under the FMPs affected by the ABC Control Rule Amendments.
In addition to the measures within this proposed rule, the ABC Control Rule Amendments would modify the ABC control rules, allow the phasing in of ABC changes, and allow carry-over of unharvested portion of the ACL, for Snapper-Grouper, Golden Crab, and Dolphin and Wahoo FMPs.
As discussed above, the current ABC control rule for the Snapper-Grouper FMP was revised by Amendment 29, and the Comprehensive ACL Amendment implemented the ABC control rules for the Golden Crab, and Dolphin and Wahoo FMPs in 2012. For assessed species, the current ABC control rules classify assessments according to level 1. Level 1 has tier classifications that determine the P* by reducing from an initial value of 50 percent according to uncertainty of assessment results and stock vulnerability (risk tolerance). ABC is determined through projections of assessment information using the accepted probability of overfishing. For unassessed species, ABC is determined by levels 2 through 5, applying one of the following data-limited methods, as data allow (listed from highest to lowest priority): Depletion-Based Stock Reduction Analysis, Depletion-Corrected Average Catch, Only Reliable Catch Stocks (only included in the Snapper-Grouper FMP as level 5), and a decision tree based on species catch history. Determination of ABC for overfished stocks undergoing rebuilding is not specified. Details on the control rule levels, tiers, and classifications are described in Table 2.1.1.1 of the ABC Control Rule Amendments. In summary, level 1 is assigned to assessed stocks and levels 1 through 4 are assigned to unassessed stocks for the Golden Crab, and Dolphin and Wahoo FMPs. Level 5 is assigned to the applicable unassessed stocks in the Snapper-Grouper FMP. Level 1 has tiers that further quantitative classification and methodology to calculate the ABC based on life-history, catch history, scientific uncertainty, stock status, and productivity and susceptibility analysis (PSA).
The proposed rule would modify the ABC control rules for the Snapper-Grouper, Golden Crab, and Dolphin and Wahoo FMPs by categorizing stocks based on the available information, scientific uncertainty evaluation, and incorporation of the Council's risk tolerance policy through an accepted P*. The Council would specify the P* based on relative stock biomass and a stock risk rating. When possible, the SSC would determine the OFL and characterize its uncertainty based primarily on the stock assessment and secondarily on the SSC's expert opinion. The OFL and its uncertainty would then be used to derive and recommend the ABC, based on the risk tolerance specified by the Council. The detailed step-by-step procedure detailing how the ABC is derived for assessed stocks can be found in section 2.1.1 of the ABC Control Rule Amendments. ABC for unassessed stocks would be recommended by the SSC based on applicable data-limited methods. Unassessed stocks would be assigned the moderate biomass level unless there is a recommendation from the SSC that justifies assignment of a different level. For overfished stocks, the Council would specify a stock rebuilding plan, considering recommendations from the SSC, and the AP of the respective FMP. The ABC enacted while the rebuilding plan is in effect would be based on recommendations from the Council's SSC. The probability of success for rebuilding plans (1 minus P*) would be at least 50 percent. Control rule categories for assessments are described in detail in Table 2.1.1.2 of the ABC Control Rule Amendments.
In summary, four categories would facilitate an ABC determination based on scientific uncertainty and SSC guidance. The Council, with advice from the SSC and AP, would evaluate management risk for each stock through a stock risk rating. Stock risk ratings include information currently used in the PSA, but also incorporate socio-economic (for example, potential for discard losses, annual commercial value, recreational desirability,
The modified ABC control rules would also allow the Council to deviate, to a greater or lesser amount, from the default accepted probability of overfishing by up to 10 percent for an individual stock, based on its expert judgment, new information, or recommendations by the SSC or other expert advisors. Accepted probability of overfishing may not exceed 50 percent. Using a 50 percent probability of overfishing implies negligible scientific uncertainty and sets OFL equal to ABC. At P* equals 0.50, removals above ABC caused by deviations in biological parameters (for example, natural mortality (M), recruitment) could cause an overfishing determination and delay rebuilding plans. Therefore, adjusting P* above the value recommended by the SSC would be infrequent and well justified based on new scientific understanding and the Council's risk tolerance. Additionally, when requested by the Council, the SSC would recommend the ABC for up to 5 years as both a constant value across years and as individual annual values for the same period of years. These options provide more flexibility to both the Council and SSC in the ABC determination.
The proposed rule would not change the current ABC levels for any species managed under the Snapper-Grouper, Golden Crab, and Dolphin and Wahoo FMPs. Modifying the ABC control rules as proposed would give the SSC the ability to recommend adjusting or deriving uncertainty of future assessment results (ultimately impacting projections of future catch) if they determine uncertainty is not adequately estimated through information used in the assessment. Evaluation of risk tolerance would also be improved by considering factors beyond the current PSA and expanding the range of reference points used to describe and incorporate relative biomass. For unassessed stocks, the proposed modifications would expand the number of methods that could be considered for estimating OFL and ABC. The addition of economic factors in the ABC control rules would allow the Council to better consider the long-term economic implications when examining management risk which could lead to better economic outcomes and increase net economic benefits in a fishery for a given species. The inclusion of social factors in the ABC control rules would allow the Council to directly consider the importance of a given species to fishing communities and businesses when determining risk tolerance and would have long-term social benefits in the form of a more appropriate ABC.
Currently, the phase-in of ABC changes is not allowed in the Snapper-Grouper, Golden Crab, and Dolphin and Wahoo FMPs. The proposed rule would establish criteria specifying when the phase-in of ABC changes would be allowed and specify the approach for the phase-in of ABC changes.
The proposed rule would allow the phase-in of increases to ABC as specified by the Council, with advice from the SSC and AP. Increases to ABC (assuming the presence of comparable data between assessments) are generally indicative of an increase in relative biomass and improving stock condition. This allows greater consideration of ecological, social, and economic effects of an increased ABC, and increased flexibility in how that change can be implemented. Because ABCs during an increasing phase-in would be less than those initially recommended by the SSC, the phase-in period is not limited (
The proposed rule would allow the phase-in of decreases to ABC when a new ABC is less than 80 percent of the existing ABC, and over a period not to exceed 3 years, which is the maximum phase-in period allowed by the NS1 guidelines. The criterion requiring a minimum threshold of difference between the current and new ABCs to be 20 percent defines a significant enough change to merit phasing in the change and is more flexible than other minimum threshold levels considered in the ABC Control Rule Amendments. Phase-ins may be used regardless of the stock relative biomass. The Council would consider whether to apply a phase-in on a case-by-case basis when specifying a stock ABC through an amendment after a new ABC has been recommended by the SSC. A longer phase-in period provides more flexibility and allows a more gradual change from the existing ABC to the new ABC.
The phase-in of the ABC is an option the Council can consider to address the social and economic effects from management changes. Adopting this flexibility does not require the Council to phase in all ABC changes, nor does adopting one approach prevent the Council from choosing a more restrictive schedule of ABC phase-ins (less than 3 years). When considering whether to phase in an ABC change, the Council would compare the risk to the stock against the expected social and economic benefits of the alternative ABC. Management strategy evaluations may be used to quantify such trade-offs. The Council would be able to consult with its scientific and fishery advisors to help develop a rationale and implementation plan for phase-ins. The proposed phase-in of ABC changes is consistent with the NMFS 2020 guidance and incorporates flexibility as per the revised NS1 guidelines into the FMPs for Snapper-Grouper, Golden Crab, and Dolphin and Wahoo.
Currently, carry-over of unharvested portion of ACLs is not allowed in the Snapper-Grouper, Golden Crab, and Dolphin and Wahoo FMPs. The proposed rule would establish criteria specifying circumstances when an unharvested portion of the originally specified sector ACL can be carried over from 1 year to increase the available harvest in the immediate next year. Carry-overs may not be delayed, and only amounts from the originally specified sector ACL may be carried over. Carry-over of the unharvested portion of a sector ACL would be allowed if:
(1) The stock status is known;
(2) The stock is neither overfished nor experiencing overfishing;
(3) An overfishing limit for the stock is defined;
(4) ABC decreases are not being phased-in;
(5) There are measures that restrict annual landings to the ACL; and
(6) The post-season AM that reduces the ACL in the following year according
The proposed rule would also specify limits on how much of the unharvested portion of a sector ACL may be carried over from 1 year to increase the sector ACL in the next year. The ABC and the total ACL may be temporarily increased to allow this carry-over. The temporary ABC may not exceed the OFL. The revised total ACL may not exceed the temporary ABC or the total ACL plus the carried over amount, whichever is less. If a stock experiences overfishing, either as the result of a stock assessment or as determined by NMFS' annual evaluation of landings, that stock would no longer qualify for carry-over. Additional conditions to annually qualify for carry-over can be added on a stock-by-stock basis. For example, to prevent overharvest of other species commonly caught with the target species (referred to as co-caught species) during years with a carried-over ACL, a future FMP amendment specifying an ABC and ACL with carry-over could additionally require that the previous year's harvest for co-caught species also be less than or equal to the ACL for carry-over to occur. When applicable, the Council would specify whether fisheries that have split seasons or sub-sector allocations (such as gear allocations) should be eligible for inter-annual carry-over on a case-by-case basis.
Carry-overs would also be sector-specific. The Snapper-Grouper and Dolphin and Wahoo FMPs have both commercial and recreational sectors whereas the Golden Crab FMP includes only a commercial sector. Thus, if only one sector is carrying over unused ACL, the carried-over amount would be allocated only to that sector, subject to limitations defined above. If more than one sector is carrying over unused ACL in the same year, each sector carry-over amount would be completely allocated to the sector from which it was derived, unless the sum of all carry-over amounts plus the specified total ACL is greater than the OFL. In this case, the difference between the temporary revised ABC and the specified total ACL would be allocated using sector allocation percentages specified by the FMP. A revised sector ACL and revised ABC would remain in place for a single fishing year. Following a year that included carry-over, evaluations of carry-over amounts for future years would be based on the ABC and sector ACLs specified by the FMP rather than on the temporarily revised values.
The proposed carry-over criteria and conditions are consistent with the NMFS 2020 guidance. The proposed carry-over criteria and conditions would also make carry-over applicable to only a few stocks managed by the Council under the Snapper-Grouper FMP at the time this action was developed. However, allowing carry-over does fulfill Federal guidance on carry-overs that requires allowance of this management tool to be included in an FMP, and provide additional management flexibility to better enable harvest of optimum yield of a healthy stock.
NMFS proposes to clarify existing regulations in 50 CFR 622.194(a) about the scope of allowable management changes using the framework procedure in the Snapper-Grouper FMP. Specifically, NMFS proposes to clarify allowable changes via framework to EFH, EFH HAPCs, and coral HAPCs.
In 2000, NMFS implemented two final rules that updated the Snapper-Grouper FMP framework procedures to include EFH, EFH HAPCs, and coral HAPCs that enabled more timely implementation of subsequent management measures than is possible via an FMP amendment (65 FR 37292, June 14, 2000; 65 FR 51248, August 23, 2000). Since NMFS implemented those final rules, no other subsequent rulemaking affected the framework procedure for EFH, EFH HAPCs, and coral HAPCs. Specifically, and along with other actions, the referenced final rules implemented Council recommendations to allow for the establishment of or modifications to EFH habitat areas of particular concern (HAPCs) or coral HAPCs via framework procedure. However, existing regulations appear more generally. Further, regulations state both “definitions of EFH” and “EFH,” and these could be interpreted as duplicative.
NMFS has determined the allowable changes via framework action in the regulations could more clearly describe the existing parameters for EFH, EFH HAPCs, and coral HAPCs. Accordingly, NMFS proposes to revise § 622.194(a) without changing the Council's original management recommendations.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the amendment, the Snapper-Grouper, Golden Crab, and Dolphin and Wahoo FMPs, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Magnuson-Stevens Act provides the legal basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. A description of this proposed rule, why it is being considered, and the purposes of this proposed rule are contained in the
The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, will not have a significant economic impact on a substantial number of small entities. A description of the factual basis for this determination follows.
This proposed rule, if implemented, would revise the ABC control rules and framework procedures in the Snapper-Grouper FMP, Golden Crab FMP, and Dolphin and Wahoo FMP. Specifically, this proposed rule would revise the ABC control rules to better distinguish the roles of the Council and its SSC in determining risk and uncertainty components, include provisions for phasing in ABC changes, include provisions for carrying over unharvested portions of ACLs, and revise framework procedures to include a procedure for implementing carry-overs when allowance of carry-over is specified in the FMP and the sector meets annual eligibility requirements. Even though this proposed rule would alter the existing regulations to allow for the possibility for transfer of an unharvested total or sector-specific ACL to the following fishing year, it would not implement any new management measures. As such, this proposed rule would not regulate any small entities.
Because this proposed rule, if implemented, is not expected to directly regulate any small entities, it is not expected to affect a substantial number of small entities. Further, because no entities are expected to be directly affected by this proposed rule, the profits of small entities are also not expected to change and thus no
Because this proposed rule, if implemented, would not have a significant economic impact on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.
Atlantic, Fisheries, Fishing, South Atlantic.
For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 622 as follows:
16 U.S.C. 1801
(a) Biomass levels, age-structured analyses, target dates for rebuilding overfished species, maximum sustainable yield (or its proxy), optimum yield, acceptable biological catch, total allowable catch, quotas (including a quota of zero), annual catch limits, annual catch targets, accountability measures, maximum fishing mortality threshold, minimum stock size threshold, trip limits, bag limits, size limits, gear restrictions (ranging from regulation to complete prohibition), seasonal or area closures, fishing year, rebuilding plans, definitions of essential fish habitat (EFH), establishment of or modifications to EFH habitat areas of particular concern (HAPCs) or coral HAPCs, restrictions on gear and fishing activities applicable in EFH and EFH HAPCs, establish or modify spawning SMZs, and allow transfer of the unharvested total or sector ACL to the following fishing year.
(a) Biomass levels, age-structured analyses, maximum sustainable yield, acceptable biological catch, total allowable catch, quotas (including quotas equal to zero), trip limits, minimum sizes, gear regulations and restrictions, permit requirements, seasonal or area closures, sub-zones and their management measures, time frame for recovery of golden crab if overfished, fishing year (adjustment not to exceed 2 months), observer requirements, authority for the Regional Administrator to close the fishery when a quota is reached or is projected to be reached, definitions of essential fish habitat (EFH), EFH habitat areas of particular concern (HAPCs), or coral HAPCs, and allow transfer of the unharvested ACL to the following fishing year.
(a) Biomass levels, age-structured analyses, maximum sustainable yield, optimum yield, overfishing limit, total allowable catch, acceptable biological catch (ABC), ABC control rule, annual catch limits, annual catch targets, accountability measures, trip limits, minimum sizes, gear regulations and restrictions, permit requirements, seasonal or area closures, sub-zones and their management measures, overfishing definitions and other status determination criteria, time frame for recovery of Atlantic dolphin or wahoo if overfished, fishing year (adjustment not to exceed 2 months), authority for the Regional Administrator to close a fishery when a quota is reached or is projected to be reached or reopen a fishery when additional quota becomes available, definitions of essential fish habitat (EFH), EFH habitat areas of particular concern (HAPCs), or coral HAPCs, and allow transfer of the unharvested total or sector ACL to the following fishing year.
Forest Service, Agriculture (USDA).
Notice of meeting.
The Black Hills National Forest Advisory Board will hold a public meeting according to the details shown below. The Board is authorized under the Forest and Rangeland Renewable Resources Planning Act of 1974, the National Forest Management Act of 1976, the Federal Lands Recreation Enhancement Act, and operates in compliance with the Federal Advisory Committee Act (FACA). The purpose of the Board is to provide advice and recommendations on a broad range of forest issues such as forest plan revisions or amendments, forest health including fire, insect and disease, travel management, forest monitoring and evaluation, recreation fees, and site-specific projects having forest-wide implications.
An in-person meeting will be held on October 18, 2023, 1:00 p.m.-4:30 p.m. Mountain Daylight Time (MDT).
All board meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
This meeting will be held in person at the U.S. Forest Service, Mystic Ranger District Office, 8221 Mount Rushmore Road, Rapid City, South Dakota 57702. Board information and meeting details can be found at the following website:
Ivan Green, Designated Federal Officer (DFO), by phone at 605-673-9201 or email at
The meeting agenda will include:
1. Off Highway Vehicle (OHV) discussion;
2. Mountain Planning Services Group presentation; and
3. Forest Plan Revision update.
The agenda will include time for individuals to make oral statements of three minutes or less. Individuals wishing to make an oral statement should make a request in writing at least three days prior to the meeting date to be scheduled on the agenda. Written comments may be submitted to the Forest Service up to seven days after the meeting date listed under
Please contact the person listed under
USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Equal opportunity practices in accordance with USDA's policies will be followed in all appointments to the Board. To ensure that the recommendations of the Board have taken into account the needs of the diverse groups served by USDA, membership shall include to the extent possible, individuals with demonstrated ability to represent minorities, women, and persons with disabilities. USDA is an equal opportunity provider, employer, and lender.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the U.S. Department of Commerce (Commerce) and the U.S. International Trade Commission (ITC) that revocation of the antidumping duty (AD) and countervailing duty (CVD) orders on certain aluminum foil (aluminum foil) from the People's Republic of China (China) would likely lead to the continuation or recurrence of dumping and countervailable subsidies, and material injury to an industry in the United States, Commerce is publishing a notice of continuation of these AD and CVD orders.
Applicable September 22, 2023.
Harrison Tanchuck or Erin Kearney, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-7421, or (202) 482-0167, respectively.
On April 19, 2018, Commerce published in the
On September 22, 2023, the ITC published its determination, pursuant to sections 751(c) and 752(a) of the Act, that revocation of the
The merchandise covered by these
Excluded from the scope of these
Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above. The products under the
Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these
As a result of the determinations by Commerce and the ITC that revocation of the
The effective date of the continuation of the
This notice also serves as a final reminder to parties subject to an APO of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
These five-year (sunset) reviews and this notice are in accordance with sections 751(c) and 751(d)(2) of the Act and published in accordance with section 777(i) of the Act, and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In accordance with the Tariff Act of 1930, as amended (the Act), the U.S. Department of Commerce (Commerce) is automatically initiating the five-year reviews (Sunset Reviews) of the antidumping and countervailing duty (AD/CVD) order(s) and suspended investigation(s) listed below. The International Trade Commission (the ITC) is publishing concurrently with this notice its notice of
Applicable October 2, 2023.
Commerce official identified in the
Commerce's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with section 751(c) of the Act and 19 CFR 351.218(c), we are initiating the Sunset Reviews of the following antidumping and countervailing duty order(s) and suspended investigation(s):
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Commerce's regulations, Commerce's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on Commerce's website at the following address:
In accordance with section 782(b) of the Act, any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information. Parties must use the certification formats provided in 19 CFR 351.303(g). Commerce intends to reject factual submissions if the submitting party does not comply with applicable revised certification requirements.
Pursuant to 19 CFR 351.103(d), Commerce will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation. Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (APO) to file an APO application immediately following publication in the
Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, Commerce's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Every five years, pursuant to the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) and the International Trade Commission automatically initiate and conduct reviews to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under sections 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
Pursuant to section 751(c) of the Act, the following Sunset Reviews are scheduled for initiation in November 2023 and will appear in that month's
No Sunset Review of countervailing duty orders is scheduled for initiation in November 2023.
No Sunset Review of suspended investigations is scheduled for initiation in November 2023.
Commerce's procedures for the conduct of Sunset Review are set forth in 19 CFR 351.218. The
Pursuant to 19 CFR 351.103(c), Commerce will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact Commerce in writing within 10 days of the publication of the Notice of Initiation.
Please note that if Commerce receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue.
Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation. Note that Commerce has modified certain of its requirements for serving documents containing business proprietary information, until further notice.
This notice is not required by statute but is published as a service to the international trading community.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public online meeting.
The Economics Subcommittee of the Pacific Fishery Management Council's (Pacific Council) Scientific and Statistical Committee (SSC) will convene an online meeting to review the economic analysis associated with sablefish gear switching alternatives being considered by the Pacific Council. The SSC Economics Subcommittee meeting is open to the public.
The SSC Economics Subcommittee meeting will be held Tuesday, October 24, 2023, from 1 p.m. until 5 p.m. (Pacific Daylight Time) or
The SSC Economics Subcommittee meeting will be conducted as an online meeting. Specific meeting information, including the agenda and directions on how to join the meeting and system requirements, will be provided in the meeting announcement on the Pacific Council's website (see
Marlene A. Bellman, Staff Officer, Pacific Council; telephone: (503) 820-2414, email:
The purpose of the SSC Economics Subcommittee meeting is to review the economic analysis associated with sablefish gear switching alternatives being considered by the Pacific Council. The Pacific Council has been in discussions related to limiting the use of non-trawl gear to target sablefish north of 36° N latitude in the trawl individual fishing quota (IFQ) fishery (gear switching), since 2017. At this point in the process, the SSC Economics Subcommittee plans to review the economic analysis for the current version of alternatives, as they have been modified notably over time.
No management actions will be decided by the meeting participants. The participants' role will be the development of recommendations and reports for consideration by the SSC and the Pacific Council at a future Pacific Council meeting. The Pacific Council and Scientific and Statistical Committee are scheduled to consider the sablefish gear switching alternatives at their November 2023 meeting in Garden Grove, CA.
Although nonemergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent of the workshop participants to take final action to address the emergency.
Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The New England Fishery Management Council (Council) is scheduling a public joint hybrid meeting of its Skate Committee and Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This hybrid meeting will be held on Wednesday, November 15, 2023, at 8:30 a.m.
Cate O'Keefe, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
Skate Committee and Advisory Panel will meet to discuss Framework Adjustment 12. They will receive a progress update on developing 2024-2025 specifications and possession limits, based on outcomes of the 2023 stock assessment and recommendations of the Scientific and Statistical Committee. They will review the preliminary impact analysis of alternatives and recommend final preferred alternatives to the Council. Other business may be discussed, as necessary.
Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Cate O'Keefe, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of meeting.
In preparation for the 2023 International Commission for the Conservation of Atlantic Tunas (ICCAT) meeting, the Advisory Committee to the
The meeting will be held on October 25-26, 2023. There will be an open session on Wednesday, October 25, 2023, from 9 a.m. through approximately 12 p.m. The remainder of the meeting will be closed to the public and is expected to end by 12 p.m. on October 26. Interested members of the public may present their views during the public comment session on October 25, 2023, or submit written comments by October 18, 2023 (see
The meeting will be held at the DoubleTree by Hilton Silver Spring DC North, 8777 Georgia Ave., Silver Spring, MD. Written comments should be sent via email to
Bryan Keller, Office of International Affairs, Trade, and Commerce, (301) 427-7725 or at
The Advisory Committee to the U.S. Section to ICCAT will meet October 25-26, 2023, first in an open session to consider information on the status of Atlantic highly migratory species and other scientific matters and then in a closed session to discuss sensitive matters related to their conservation and management. The open session will be from 9 a.m. to 12 p.m. on October 25, 2023, including an opportunity for public comment beginning at approximately 11:30 a.m. Comments may also be submitted in writing for the Advisory Committee's consideration. Interested members of the public can submit comments by mail or email; use of email is encouraged. All written comments must be received by October 18, 2023 (see
NMFS expects members of the public to conduct themselves appropriately at the open session of the Advisory Committee meeting. At the beginning of the public comment session, an explanation of the ground rules will be provided (
After the open session, the Advisory Committee will meet in closed session to discuss sensitive information relating to upcoming international negotiations on the conservation and management of Atlantic highly migratory species and related matters.
The meeting location is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Bryan Keller at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The South Atlantic Fishery Management Council (Council) will hold a meeting of the Scientific and Statistical Committee (SSC). See
The meeting will be held from 8:30 a.m. until 5 p.m., EDT on October 24, 2023; from 8:30 a.m. until 5 p.m. on October 25; and from 8:30 a.m. until 12 p.m. on October 26, 2023.
The meetings will also be available via webinar. Registration is required. Webinar registration, an online public comment form, and briefing book materials will be available two weeks prior to the meetings at:
Kim Iverson, Public Information Officer, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; telephone: (843) 571-4366 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The SSC meeting agenda includes the review of the SEDAR (Southeast Data, Assessment, and Review) 76 Black Sea Bass Operational Assessment, Vermilion Snapper Interim Analysis, and terms of reference and schedule for SEDAR 94 Florida Hogfish. The SSC will review results from the Marine Recreational Information Program Fishing Effort Survey pilot study, changes to cumulative estimates, and available data for unassessed stocks. They will receive presentations from NOAA Fisheries on the National Standard 2: Best Scientific Information Available (BSIA) regional framework and modelling discards and ABC determination. The SSC will also receive updates on the Snapper Grouper Management Strategy Evaluation and the South Atlantic Deepwater Longline Survey. The SSC will discuss potential national SSC meeting topics, changes to the Yellowtail Snapper Overfishing Limit and Acceptable Biological Catch, Climate Change Scenario Planning and funding opportunities, and other business as needed.
These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Pacific Fishery Management Council's (Pacific Council) Groundfish Management Team (GMT) will hold a week-long in-person work session that is open to the public.
The GMT meeting will be held Monday, January 29, 2024, from 12:30 p.m., Pacific Standard Time, until business for the day has been completed. The GMT will reconvene Tuesday, January 30 through Friday, February 2, 2024, from 8:30 a.m. until business for each day has been completed.
This work session is being conducted in person with a web broadcast that provides the opportunity for remote public comment. Specific meeting information, including directions on how to join the meeting and system requirements will be provided in the meeting announcement on the Pacific Council's website (see
Mr. Todd Phillips, Pacific Council; telephone: (503) 820-2426.
The primary purpose of this week-long work session is for the GMT to prepare for 2024 Pacific Council meetings. Specific agenda items will include: the 2025/2026 harvest specifications and management measure process, stock assessment and review planning, and GMT chair/vice chair elections. The GMT may also address groundfish management actions the Pacific Council has indicated on their Year-at-a-Glance calendar, such as: stock definitions, limited entry fixed gear marking and entanglement risk reduction, and groundfish workload and new management measure prioritization agenda items. A detailed agenda will be available on the Pacific Council's website prior to the meeting.
Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
Requests for sign language interpretation or auxiliary aids should be directed to Mr. Kris Kleinschmidt (
National Telecommunications and Information Administration, Department of Commerce.
Notice, request for comment.
Preventing and mitigating any adverse health effects from use of online platforms on minors, while preserving benefits such platforms have on minors' health and well-being, are critical priorities of the Biden-Harris Administration. On behalf of the Department of Commerce and in conjunction with the other members of the United States government's Task Force on Kids Online Health & Safety, the National Telecommunications and Information Administration (NTIA) seeks broad input and feedback from stakeholders on current and emerging risks of health (including mental health), safety, and privacy harms to minors arising from use of online platforms. This request also seeks information about potential health, safety and privacy benefits stemming from minors' use of online platforms. Finally, we seek input on current and future industry efforts to mitigate harms and promote the health, safety and well-being of minors who access these online platforms. The data gathered through this process will be used to inform the Biden-Harris Administration's work to advance the health, safety, and privacy of minors.
Written comments must be received on or before November 16, 2023.
All electronic public comments on this action, identified by
Please direct questions regarding this Request for Comment to Kids Online team at
On May 23, 2023, the Biden-Harris Administration announced several key actions to protect the health, safety, and privacy of young people online, including the formation of an interagency Kids Online Health and Safety Task Force (Task Force).
In order to address health and safety concerns related to minors and the online environment, the Task Force will “review the status of existing industry efforts and technologies to promote the health and safety of children and
The Task Force is led by the Department of Health and Human Services in close partnership with the Department of Commerce, through the National Telecommunications and Information Administration (NTIA). It is comprised of senior representatives from the Department of Education, the Department of Justice, the Department of Homeland Security, the Federal Trade Commission, the National Institute of Standards and Technology, the Office of the Surgeon General, the Centers for Disease Control and Prevention, the National Institutes of Health, the Office of the Assistant Secretary for Health, the Office of the Assistant Secretary for Children and Families, and the White House Domestic Policy Council, Office of Science and Technology Policy, the National Economic Council, and the Gender Policy Council.
In announcing the Task Force, the Administration referred to existing research and reports from news and medical sources, including an American Psychiatric Association poll finding that “[m]ore than half of parents express concern over their children's mental well-being.”
Concurrently, the Surgeon General of the United States issued an Advisory that labeled the potential harm to American youth stemming from use of online platforms an “urgent public health issue,” citing “increasing concerns among researchers, parents and caregivers, young people, healthcare experts, and others about the impact of social media on youth mental health,”
Minors' use of social media and other online platforms have produced an evolving and broad set of concerns, touching on, among other things, health, safety, and privacy.
Social media and other online platforms also pose risks to minors of infringements on privacy, with concerns focused on the particularly sensitive nature of images and other personally identifiable information such as educational records, including misuse, minors' vulnerability to harms from those with access to such information, and, more generally, minors' exposure to comprehensive surveillance.
While social media and other online platforms pose risks to minors, these offerings also can facilitate and provide immense benefits for minors. The Biden Administration, through NTIA and other agencies, is engaged in an historic initiative to bring robust and affordable internet access to all Americans. This project will allow greater youth participation in the modern digital economy, open access to increased digital learning opportunities and after-school activities, broaden access to health care (including telehealth), enhance civic engagement, help students participate in a wide range of activities, and more.
The Task Force is charged with exploring ways to assess and address risks and harms to minors online. Among other things, the Task Force will evaluate how best to harness technology for these purposes and will consider best practices for social media and online platforms and their use.
Many agencies represented on the Task Force have taken actions designed to advance minors' interests to protect their health, safety and privacy online. The Department of Commerce is working to “promote efforts to prevent online harassment and abuse” of youth by increasing awareness and support for youth victims, among other efforts.
All around the world, nation-states, civil society organizations, and researchers are working to determine how best to keep children and teens safe while maximizing the benefits of social media and other online platforms.
This Notice offers an opportunity for all interested parties to provide vital input and recommendations for consideration in the Task Force's work.
NTIA welcomes input on any matter that commenters believe is important to the Kids Online Health and Safety Task Force's efforts to review how use of, and exposure to, social media and other online platforms impact the health and well-being (including safety and privacy) of youth. Further, NTIA seeks feedback on current industry practices, and ways that the private sector, parents and guardians, the U.S. government, and any other party might improve the current status quo.
Commenters are invited to comment on the full range of issues presented by this RFC and are encouraged to address any or all of the following questions, or to provide additional information relevant to the Task Force. As noted above, much work has been done in specific areas identified below. This Request for Comment seeks to supplement that work, rather than repeat it, and to draw out the works or ideas that might be useful for discussion.
This request particularly welcomes comment providing or advancing thinking as to: (1) identification of the health, safety and privacy risks and benefits for minors from the use of online platforms and services; (2) information on the status of industry efforts and technology, (3) practical solutions to the specific identified issues, and (4) guidance to parents, guardians, and caregivers that is based upon rigorous evaluation and has been shown to be effective in specific, articulated ways.
The term “social media and other online platforms” could encompass many services and technologies. These include, among others, platforms set up as social media, gaming platforms and interactive games (even if decentralized), online platforms or websites that host postings of video and other content, and even search engines could be viewed as advertising platforms. However, the relevant items for discussion are how the various types of social media and other online platforms are tied to minors' safety, health, and privacy. Similarly, commenters are asked to differentiate, where appropriate, the categories to be specific about the types of social media and other online platforms and the specific types of harm they are describing as they discuss various aspects of this topic, including which minors that they are referencing.
The questions below cover issues that could affect youth of all ages, from toddlers to adolescents. This Request for Comment is meant to be all-encompassing, and the terms “minors” and “youths” are used in this document to describe people under 18 years of age. However, it is helpful to note with some specificity if particular harms or solutions, for example, are more relevant to specific demographic or age groups or youths with accessibility requirements benefit in particular (for example, blind youth, low-income youth, or youth affiliated by gender, sexuality, race, or religion).
Commenters are not required to respond to all questions. When responding to one or more of the questions below, please note in the text of your response the number of the question to which you are responding. Commenters are welcome to provide specific actionable proposals, rationales, and relevant facts. Commenters should include a page number on each page of their submissions. Please note that for this comment, because of the volumes of material already available in this area, NTIA is requesting concise comments that are at most fifteen (15) single-spaced pages. Commenters are welcome to provide citations to other work detailing particular areas of concern, studies, or solutions.
Please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. All comments received are a part of the public record and will generally be posted to
1. What are the current and emerging risks of harm to minors associated with social media and other online platforms?
a. What harms or risks of harm do social media and other online platforms facilitate with respect to, or impose upon, minors?
b. What are the specific design characteristics that most likely lead to behavior modifications leading to harms or risks?
c. What information concerning platform safety is provided to parents, care givers, and children by providers? Where is that information found? Where could it be located that would provide the best avenue to reach parents, care givers, and children?
d. For each harm or risk identified, please note whether imposition of such harm or risk is currently subject to civil or criminal legal sanction, and, if so, whether these existing legal frameworks adequately deter and/or penalize such imposition.
e. Are these harms evenly distributed? Or do they accrue disproportionately to certain demographic or age groups or youths with accessibility requirements (for example, based on gender, sexuality, age, race, or religion)?
f. Is the likelihood of these harms enhanced, facilitated, incentivized, created, or alleviated by technical design characteristics, business arrangements, or other contingent factors?
g. Conversely, are the factors that facilitate harms and risks in this area inherent in social media and other online platforms' offerings?
h. Do specific applications of artificial intelligence and/or other emerging technologies exacerbate or help alleviate certain harms or risks of harm in this area? If so, which and how?
2. Are there particular market conditions or incentives built into the market structure that enhance or deter benefits and/or harms that should be addressed and/or encouraged?
3. What are the current and emerging health and other benefits—or potential benefits—to minors associated with social media and other online platforms (including to physical, cognitive, mental, and socio-emotional well-being)?
a. Are these benefits generally available to most minors? Do minors in specific demographic or age groups or youths with accessibility requirements benefit in particular (for example, blind youth, low-income youth, or youth
b. Is there a particularly sensitive developmental period during which minors are more likely to obtain certain benefits?
4. Do particular technical design characteristics, business arrangements, or other contingent factors for some online platforms allow for or enhance the benefits referenced in Question 3?
a. Are those characteristics or factors inherent in social media and other online platforms' offerings?
b. Conversely, are there particular characteristics or factors that impede access to the beneficial aspects of social media and other online platforms? Are there barriers to making design elements available across multiple platforms?
5. Are there ways that young people have been or could be involved in making improvements to the health and safety of online platforms including social media that you think should be encouraged?
a. What are best practices in youth involvement in making improvements to the design and use of online platforms including social media? What roles did youth play? What roles did adults play? What has been the impact of these efforts?
b. What suggestions do you have for youth involvement in making improvements to online platforms including social media? Please be as specific as possible.
6. What practices and technologies do social media and other online platform providers employ today that exert a significant positive or negative effect on minors' health, safety, and privacy?
a. What practices and technologies do specific social media and other online platform providers employ today for assessing, preventing, and mitigating harms? What specific practices for being especially effective or ineffective?
b. Do the practices referenced in Queston [5a] impose unintended consequences? If so, what are they, and how can they be mitigated?
c. Have the practices of social media and other online platforms evolved over time to enhance or undercut minors' health and safety, including their privacy, in ways that should be taken into account for future efforts? If so, how? For example, what factors have been significant in shaping any such evolution that are likely to have similar bearing on the future of industry practices?
d. What are the relative roles played by shifts in norms, business and economic circumstances, legal mandates, scientific and social scientific consensus, and/or other relevant factors? Which of these factors shape practices the most and how?
7. What is the impact of dark patterns or design on minors' health and safety, including their privacy (for example, being addictive, extended online use, making wrong decisions, or taking incorrect actions)?
8. Do platform providers' practices or technologies disproportionately benefit or harm certain specific demographic or age groups or youths with accessibility requirements benefit in particular (for example, blind youth, low-income youth, or youth affiliated by gender, sexuality, race, or religion)? How should that be factored into any best practices and/or other recommendations that this Task Force might explore?
9. Do the practices currently employed by social media and other online platforms of relevance to this inquiry differ materially between organizations and entities or are they similar? If they are different what is the source of the disparities? If they mirror one another, what is the source of the similarities? For example, do differences and similarities stem principally from various business models, legal frameworks, commonly used technologies, key decision-makers, or other factors?
10. Among the practices currently employed by social media and other online platforms, which ones best maximize benefits to minors' health, safety, and/or privacy while minimizing the risk or imposition of harm? How do they do so?
a. Could these practices be adopted, in whole or in part, by other platforms?
b. What modifications, if any, would be required before they could be adopted by other platforms?
c. What are the most significant barriers to adoption and implementation of such practices by other platforms, and what are the most significant incentives for other platforms to adopt these practices?
d. How do these practices work in concert with other practices to protect and advance minors' online health, safety, and/or privacy?
11. Are there potential best practices (for example, practices related to design, testing, or configuration) or policies that are not currently employed by social media and other online platforms that should be considered?
12. How can such policies or best practices be best tailored in the future to different ages and stages of a child's emotional and cognitive development?
13. Are there technical design choices employed by specific social media platforms and other online platforms or supported by research that should be adopted by other social media and other online platforms to advance minors' health, safety, and/or privacy online?
a. If so, what are the best ways to promote or ensure adoption of such practices?
b. Are new entrants able to offer innovation in this area or are there barriers (for example, relating to interoperability demands or the need for scale) that hamper such innovation?
14. Are there technical tools or supports that could be used by platforms to improve minors' health, safety, and/or privacy online, whether or not they are in use today?
a. What technical options or tools could be used to advance minors' health, safety, and/or privacy online? If available, why have they not previously been offered or facilitated by social media and/or other online platform providers? For example, are there factors other than health and safety at issue, or are there concerns about the effect on access to information?
b. What steps, if any, must be taken to facilitate platform providers' expanded use of technical solutions to improve minors' online health, safety, and/or privacy?
15. Are there technical options that could assist parents, guardians, caregivers, and minors by reducing potential for harm and/or increasing potential for beneficial aspects of social media and other online platforms?
16. What guidance, if any, should the United States government issue to advance minors' health, safety, and/or privacy online?
a. What guidance, if any, might assist parents, guardians, caregivers and others in protecting the health, safety, and privacy of minors who use online platforms, including possible tools, their usage and potential drawbacks?
b. What type of guidance, if any, might be offered to social media or other online platforms either generally or to specific categories of such?
c. What are the benefits or downsides of the U.S. government offering such guidance, and which agencies or offices within the government are best positioned to do so?
d. How best can we ensure that such guidance reflects the evolving
e. How best can the U.S. government encourage compliance with any guidance issued to advance minors' health, safety, and/or privacy online?
17. What policy actions could be taken, whether by the U.S. Congress, federal agencies, enforcement authorities, or other actors, to advance minors' online health, safety, and/or privacy? What specific regulatory areas of focus would advance protections?
18. How best can the U.S. government establish long-term partnerships with social media and other online platform providers to ensure that evolving needs with respect to minors' online health, safety, and/or privacy are addressed as quickly as possible?
19. With respect to any of the questions posed above, are there ways in which the response would be different for specific demographic or age groups or youths with accessibility requirements (for example, blind youth, low-income youth, or youth affiliated by gender, sexuality, race, or religion)? If so, how?
20. What are the best sources of scientifically sound evidence that should be consulted in any review of this topic, including those about benefits, risks, harms, and best practices with respect to social media and other online offerings?
a. In particular, what are the best sources for information regarding the relationship between platform providers' practices and minors' health, safety, and/or privacy?
b. Would it be helpful to have a particular trusted source for relevant information in this area? For example, would it be helpful if resources were provided by a medical association or a special government office?
c. What are the most effective ways for platforms to gather and provide useful information through transparency reports or audits related to online harms to the health, safety, and/or privacy of youth?
21. What scientifically sound evidence regarding the matters raised in this Request for Comment is lacking? What guidance that is not currently available would an expert expect or want for research?
a. What are areas we have not included here that are important for developing a research agenda regarding online harms and health benefits to minors?
22. Should platforms provide more data to researchers and, if so, what would that kind of data sharing look like, what kind of data would be most useful, how would it account for the privacy of users, and what are the best models for sharing data, while also safeguarding users and their privacy?
NTIA welcomes any additional input that stakeholders believe will prove useful to our efforts.
Consumer Financial Protection Bureau.
Notice of public availability of FY 2020 service contract inventory.
In accordance with section 734 of Division C of the Consolidated Appropriations Act of 2010, the Consumer Financial Protection Bureau (Bureau) is publishing this notice to advise the public of the availability of the FY 2020 service contract inventory. This inventory provides information on service contract actions over $25,000, which the Bureau funded during FY 2020. The information is organized by function to show how contracted resources were used by the agency to support its mission. The inventory has been developed in accordance with the guidance issued by the Office of Management and Budget's Office of Federal Procurement Policy (OFPP). The Bureau has posted its inventory on the Bureau's Open Government homepage at the following link:
Nikki Burley, Senior Procurement Analyst, Office of Procurement, at 202-435-0329, or
U.S. Election Assistance Commission (EAC).
Notice; request for comment.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the U.S. Election Assistance Commission (EAC) gives notice that it is requesting from the Office of Management and Budget (OMB) a modification of the previously approved information collection EAC Progress Report (EAC-PR).
Comments should be submitted by 5 p.m. Eastern on Thursday, November 2, 2023.
To view the proposed EAC-PR format, see:
This proposed information collection was previously published in the
The EAC Office of Grants Management (EAC/OGM) is responsible
The EAC Progress Report has been developed for both interim and final progress reports for grants issued under HAVA authority. This revised format builds upon that report for the various grant awards given by EAC and provides terminology clarification. The Progress Report will directly benefit award recipients by making it easier for them to administer federal grant and cooperative agreement programs through standardization of the types of information required in progress reports—thereby reducing their administrative effort and costs.
We are soliciting public comments to permit the EAC to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Office of Grants Management.
• Evaluate the accuracy of our estimate of burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
OMB approval is requested for 3 years.
The estimated cost of the annualized cost of this burden is: $4,677.34, which is calculated by taking the annualized burden (194 hours) and multiplying by an hourly rate of $24.11 (GS-8/Step 5 hourly basic rate).
Office of Cybersecurity, Energy Security, and Emergency Response, Department of Energy.
Notice of emergency action.
The U.S. Department of Energy (DOE or the Department) is issuing this Notice to document emergency actions that it has taken pursuant to the Federal Power Act. DOE issued an emergency order to the Electric Reliability Council of Texas, Inc. (ERCOT) to operate certain power generating facilities under limited circumstances as described further in this section. ERCOT is the independent system operator for over 26 million people in Texas (ERCOT Region). The State of Texas experienced a sustained heat wave that resulted in abnormally high electric demand. Because the additional generation required to serve the ERCOT Region was anticipated to result in a conflict with environmental standards and requirements, DOE authorized only the necessary additional generation for ERCOT to sufficiently supply the amount of energy needed to prevent electrical disruption. However, because no facilities operated above permitted levels during the emergency as authorized by the DOE order, no environmental impacts resulted from DOE issuing the order. Consequently, DOE has decided not to prepare a special environmental analysis.
Requests for more information should be addressed by electronic mail to
For further information on this Notice, or for information on the emergency activities described herein, contact Kenneth Buell, (202) 586-3362,
The Order and all related information are available here:
The Department is issuing this Notice pursuant to 10 CFR 1021.343(a) to document emergency actions taken in accordance with section 202(c) of the Federal Power Act (FPA) (16 U.S.C. 824a(c)). FPA section 202(c) provides that “[d]uring the continuance of any war in which the United States is engaged, or whenever the [Secretary of Energy] determines that an emergency exists by reason of a sudden increase in the demand for electric energy, or a shortage of electric energy or of facilities for the generation or transmission of electric energy, or of fuel or water for generating facilities, or other causes, the [Secretary of Energy] shall have authority, either upon [her] own motion or upon complaint, with or without notice, hearing or report, to require by order such temporary connections of facilities and generation, delivery, interchange, or transmission of electric energy as in [her] judgment will best meet the emergency and serve the public interest.”
On September 7, 2023, ERCOT filed a Request for Emergency Order Under Section 202(c) of the Federal Power Act (Application) to allow ERCOT to operate certain electric generating units up to their maximum generation output levels to preserve the reliability of the bulk power system.
In its Application, ERCOT noted that the region was experiencing extreme heat conditions resulting in especially high electric demand. On September 6, 2023, ERCOT reported that it established a September load record, and, on the same day, it declared an Energy Emergency Alert (EEA) Level 2 due to low reserve margins coupled with a post-contingency transmission overload. ERCOT observed high loading on a certain transmission element in similar circumstances in the weeks preceding September 7, 2023, and assessed that a post-contingency overload could occur again during the later afternoon and evening hours of September 7, 2023, and September 8, 2023. Such an overload would have required ERCOT to reduce output of resources impacting the loading on that element, exacerbating ERCOT's scarcity concern. The extreme heat and high electric demand were expected to continue through September 8, 2023. ERCOT requested the authority to authorize the provision of additional energy from the units identified in Exhibit A of its Application, as well as any other generating units subject to emissions or other permit limitations, subject to the Order (“Specified Resources”). ERCOT stated that the emergency order it was requesting could result in exceedances of environmental limits. Given the permit limits of the Specified Resources, ERCOT anticipated that the additional capacity may not be made available absent an order under FPA section 202(c).
On September 7, 2023, the Secretary of Energy issued Order No. 202-23-1 (the ERCOT Order). As set forth in the ERCOT Order, the Secretary for Energy found that given the emergency nature of the expected load stress, the responsibility of ERCOT to ensure maximum reliability on its system, and the ability of ERCOT to identify and dispatch generation necessary to meet the additional load, the issuance of the Order would meet the emergency and serve the public interest.
The Order authorized ERCOT to dispatch the Specified Resources for the period beginning with the issuance of the Order on September 7, 2023, for the hours of 5 p.m. through 9 p.m. CDT and 5 p.m. and 9 p.m. CDT on Friday, September 8, 2023, under the conditions set forth in the Order, including the following:
(i) For any Generation Resource or Settlement Only Generator whose operator notifies ERCOT that the unit is unable, or expected to be unable, to produce at its maximum output due to an emissions or other limit in any Federal environmental permit, the unit would be allowed to exceed any such limit only between the hours of 5 p.m. and 9 p.m. CDT on Thursday, September 7, 2023, and 5 p.m. and 9 p.m. CDT on Friday, September 8, 2023, and only if ERCOT has declared an EEA Level 2 or Level 3 that remained in effect during all or any part of either such period. This incremental amount of restricted capacity would be offered at a price no lower than $1,500/MWh. Once ERCOT declares that it is no longer in an EEA Level 2 or 3, or at 9 p.m. CDT, whichever occurs first, the unit would be required to return to operation within its permitted limits as expeditiously as possible. And at all other times, the unit would be required to operate within its permitted limits.
(ii) For any Generation Resource whose operator notifies ERCOT that the unit will be offline at any point between the hours of 5 p.m. and 9 p.m. CDT Thursday, September 7, 2023, and 5 p.m. and 9 p.m. CDT Friday, September 8, 2023, or would need to go offline during either such period, due to an emissions or other limit in any Federal environmental permit, if ERCOT has declared or expects to declare an EEA Level 2 or Level 3 that is expected to be in effect during all or any part of that period, then ERCOT may issue a Reliability Unit Commitment (RUC) instruction in advance of that period or during that period directing the unit operator to bring the unit online, or to keep the unit online, and to operate at the minimum level at which the Resource can be sustainably operated. If ERCOT issues the instruction in advance of either such period, then ERCOT shall endeavor to commit the unit at a time that allows the unit to reach its low sustained limit no earlier than the beginning of that period or the start of any EEA Level 2, whichever is expected to occur last. An operator subject to RUC instruction described herein would be allowed to make all of the unit's capacity available to ERCOT for dispatch during any period between the hours of 5 p.m. and 9 p.m. CDT on Thursday, September 7, 2023, and 5 p.m. and 9 p.m. CDT Friday, September 8, 2023, for which ERCOT has declared an EEA Level 2 or Level 3. This capacity would be offered at a price no lower than $1,500/MWh. Once ERCOT issues a declaration indicating that it is no longer in an EEA Level 2 or 3, or at 9 p.m. CDT, whichever occurs first, the unit would be required to return to operation within its permitted limits as expeditiously as possible unless the unit is subject to a subsequent RUC instruction that complies with the terms specified herein.
The Order required that ERCOT provide a report by October 6, 2023, for the dates between September 7, 2023 and September 8, 2023, inclusive, on which the Specified Resources were operated, the hours of operation, and exceedance of permitting limits, including sulfur dioxide, nitrogen oxide, mercury, carbon monoxide, and other air pollutants, as well as exceedances of wastewater release limits. The report was required to include, (i) emissions data in pounds per hour for each Specified Resource unit, for each hour of the operational scenario, for CO, NO
This document of the Department of Energy was signed on September 26, 2023, by Puesh M. Kumar, Director for the Office of Cybersecurity, Energy Security, and Emergency Response, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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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
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380, the Office of Energy Projects has reviewed the application for a subsequent license to continue to operate and maintain the Newbury Hydroelectric Project. The project is located on the Wells River, in the town of Newbury, Orange County, Vermont. Commission staff has prepared an Environmental Assessment (EA) for the project.
The EA contains staff's analysis of the potential environmental impacts of the project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
The Commission provides all interested persons with an opportunity to view and/or print the EA via the internet through the Commission's Home Page (
You may also register online at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Any comments should be filed within 30 days from the date of this notice.
The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
For further information, contact Adam Peer at (202) 502-8449 or by email at
Take notice that on September 26, 2023, William L.Smith submitted for filing, application for authority to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act, 16 U.S.C. 825d (b) and part 45.8 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR part 45.8.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and
Take notice that on September 26, 2023, the North American Electric Reliability Corporation submitted an annual report on the Find, Fix, Track and Compliance Exception programs, in accordance with the Federal Energy Regulatory Commission's (Commission) Orders.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
In addition to publishing the full text of this document in the
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Take notice that the Commission has received the following Natural Gas and Oil Pipeline Rate and Refund Report filings:
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.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
1. In this order, we approve Bonneville Power Administration's (Bonneville) proposed fiscal years 2024-2025 wholesale power and transmission rates on an interim basis, pending our further review. We also provide an additional period of time for the parties to file comments.
2. On July 28, 2023, Bonneville filed a request for interim and final approval of its proposed wholesale power
3. Notice of Bonneville's application was published in the
4. The Tribal Parties assert that Bonneville's rates during the 2024-2025 rate period are insufficient to assure repayment of the federal investment in the Federal Columbia River Power System, and are not based on Bonneville's total system costs.
5. In Bonneville's answer, Bonneville states that the Commission should approve Bonneville's proposed rates as requested.
6. Bonneville contends that the Commission previously considered the issue of whether Bonneville's rates failed to afford “equitable treatment” to fish and wildlife under section 4(h)(11)(A) of the Northwest Power Act. Bonneville argues that the Commission correctly concluded that “Bonneville's compliance with its environmental review and fish and wildlife protection obligation . . . is outside the scope of the Commission's review under section 7(a)(2).”
7. In response to the Tribal Parties' claim that Bonneville's rates are not
8. Bonneville further argues that the Tribal Parties misstate the procedures applicable to this proceeding when the Tribal Parties note that “parties in the [Bonneville] rate proceedings `shall be afforded an opportunity by the Commission for an additional hearing.'”
9. Pursuant to Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2022), the timely, unopposed motion to intervene serve to make the entities that filed them parties to this proceeding.
10. Rule 213(a)(2) of the Commission's Rules of Practice and Procedure, 18 CFR 385.213(a)(2), prohibits an answer to a protest unless otherwise ordered by the decisional authority. We will accept Bonneville's answer because it has provided information that assisted us in our decision-making process.
11. Under the Northwest Power Act, the Commission's review of Bonneville's proposed regional power and transmission rates is limited to determining whether Bonneville's proposed rates meet the three specific requirements of section 7(a)(2) of the Northwest Power Act:
(A) they must be sufficient to assure repayment of the Federal investment in the Federal Columbia River Power System over a reasonable number of years after first meeting Bonneville's other costs;
(B) they must be based upon Bonneville's total system costs; and
(C) insofar as transmission rates are concerned, they must equitably allocate the costs of the Federal transmission system between Federal and non-Federal power.
12. Commission review of Bonneville's non-regional, non-firm rates also is limited. Review is restricted to determining whether such rates meet the requirements of section 7(k) of the Northwest Power Act,
(A) recover the cost of generation and transmission of such electric energy, including the amortization of investments in the power projects within a reasonable period;
(B) encourage the most widespread use of Bonneville power; and
(C) provide the lowest possible rates to consumers consistent with sound business principles.
13. Unlike the Commission's statutory authority under the Federal Power Act, the Commission's authority under sections 7(a) and 7(k) of the Northwest Power Act does not include the power to modify the rates. The responsibility for developing rates in the first instance is vested with Bonneville's Administrator. The rates are then submitted to the Commission for approval or disapproval. In this regard, the Commission's role can be viewed as an appellate one: to affirm or remand the rates submitted to it for review.
14. Moreover, review at this interim stage is further limited. In view of the volume and complexity of a Bonneville rate application, such as the one now before the Commission in this filing, and the limited period in advance of the requested effective date in which to review the application,
15. The Commission declines at this time to grant final confirmation and approval of Bonneville's proposed wholesale power and transmission rates. The Commission's preliminary review nevertheless indicates that Bonneville's wholesale power and transmission rates application appears to meet the statutory standards and the minimum threshold filing requirements of part 300 of the Commission's regulations.
16. In addition, we will provide an additional period of time for parties to file comments and reply comments on issues related to final confirmation and approval of Bonneville's proposed rates. This will ensure that the record in this proceeding is complete and fully developed.
(A) Interim approval of Bonneville's proposed wholesale power and transmission rates for fiscal years 2024-2025 is hereby granted, to be effective October 1, 2023, through September 30, 2025, subject to refund with interest as set forth in section 300.20(c) of the Commission's regulations,
(B) Within 30 days of the date of this order, parties who wish to do so may file additional comments regarding final confirmation and approval of Bonneville's proposed rates. Parties who wish to do so may file reply comments within 20 days thereafter.
(C) The Secretary shall promptly publish this order in the
By the Commission.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following Complaints and Compliance filings in EL Dockets:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric reliability 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 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 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Environmental Protection Agency (EPA).
Notice of annual adjustment factors.
The Acid Rain Program requires sources that do not meet their annual Acid Rain emissions limitations for sulfur dioxide (SO
Jason Kuhns at (202) 564-3236 or
The Acid Rain Program limits SO
The annual adjustment factor used to compute excess emissions penalties for compliance year 2023 is 2.377, resulting in an automatic penalty amount of $4,754 per excess ton of SO
The annual adjustment factor used to compute excess emissions penalties for compliance year 2024 is 2.464, resulting in an automatic penalty amount of $4,928 per excess ton of SO
Environmental Protection Agency (EPA).
Notice.
Pursuant to the Federal Advisory Committee Act, the Environmental Protection Agency's (EPA's) Office of Pesticide Programs is announcing a public meeting of the Pesticide Program Dialogue Committee (PPDC) on November 15 and 16, 2023. The meeting will be held in person and limited opportunities for virtual participation will be offered.
The meeting will be held on Wednesday, November 15 from
To request accommodation of a disability, please contact the technical person listed under
The meeting will be held at the U.S. Environmental Protection Agency Ruckelshaus Conference Center in the East West William Jefferson Clinton Building at 1201 Constitution Avenue NW, Washington, DC 20004.
Please visit
Jeffrey Chang, telephone number: (202) 566-2213, email address:
You may be potentially affected by this action if you work in in agricultural settings or if you are concerned about implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2023-0467, is available online at
For further information on EPA/DC services, docket contact information and the current status of the EPA/DC and Reading Room, please visit
The PPDC is a federal advisory committee chartered under the Federal Advisory Committee Act (FACA), Public Law 92-463. EPA established the PPDC in September 1995 to provide policy advice, information and recommendations to the EPA Administrator through the Director of the Office of Pesticide Programs, Office of Chemical Safety and Pollution Prevention. The PPDC provides a public forum to discuss a wide variety of pesticide regulatory developments and reform initiatives, evolving public policy and program implementation issues associated with evaluating and risks from the use of pesticides.
Please visit
Requests to make brief oral comments to the PPDC during the meeting should be submitted to the individual listed under
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is announcing the availability of and soliciting public comment on a draft guidance document and proposed method for adding efficacy claims to antimicrobial products for use in cooling tower water to reduce the level of planktonic
Comments must be received on or before December 1, 2023.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2023-0430, through the Federal eRulemaking Portal at
This action is directed to the public in general; although this action may be of particular interest to those persons who are or may be required to conduct efficacy testing of chemical substances under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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As guidance, these documents are not binding on the Agency or any outside parties, and the Agency may depart from these documents where circumstances warrant and without prior notice. While EPA has made every effort to ensure the accuracy of the discussion in the guidance, the obligations of EPA and the regulated community are determined by statutes, regulations, or other legally binding documents. In the event of a conflict between the discussion in the guidance documents and any statute, regulation, or other legally binding document, the guidance documents will not be controlling.
Equal Employment Opportunity Commission.
Notice of availability and request for comment.
The Equal Employment Opportunity Commission (“EEOC”) is announcing that its proposed “Enforcement Guidance on Harassment in the Workplace” is available for public comment.
Comments must be received on or before November 1, 2023. Please see the sections below entitled
You may submit comments, identified by docket number EEOC-2023-0005 or Regulatory Information Number (RIN) 3046-ZA02, by any of the following methods—please use only one method:
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Lynn Davenport, Assistant Legal Counsel,
The EEOC is seeking public comments on all aspects of its proposed “Enforcement Guidance on Harassment in the Workplace” (proposed guidance) pursuant to 29 CFR part 1695. The proposed guidance presents a legal analysis of standards for harassment and employer liability applicable to claims of harassment under the equal employment opportunity statutes enforced by the Commission. The Commission posted and requested public input on a proposed guidance on workplace harassment in January 2017, which was not finalized.
The contents of the final guidance document will not have the force and effect of law and are not meant to bind the public in any way. The document is intended only to provide clarity to the public regarding Commission policies and existing requirements under the law. The standards discussed under EEOC-enforced laws will not necessarily apply to allegations of unlawful harassment under other Federal laws or under State or local laws.
For the Commission:
Notice of the forthcoming regular meeting of the Board of Directors of the Farm Credit System Insurance Corporation (FCSIC), is hereby given in accordance with the provisions of the Bylaws of the FCSIC.
10 a.m., Wednesday, October 11, 2023.
You may observe the open portions of this meeting in person at 1501 Farm Credit Drive, McLean, Virginia 22102-5090, or virtually. If you would like to virtually attend, at least 24 hours in advance, visit
If you need more information or assistance for accessibility reasons, or have questions, contact Ashley Waldron, Secretary to the Board. Telephone: 703-883-4009. TTY: 703-883-4056.
Parts of this meeting will be open to the public. The rest of the meeting will be closed to the public. The following matters will be considered:
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage de novo, or to acquire or control voting securities or assets of a company, including the companies listed below, that engages either directly or through a subsidiary or other company, in a nonbanking activity that is listed in § 225.28 of Regulation Y (12 CFR 225.28) or that the Board has determined by Order to be closely related to banking and permissible for bank holding companies. Unless otherwise noted, these activities will be conducted throughout the United States.
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington DC 20551-0001, not later than October 17, 2023.
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Board of Governors of the Federal Reserve System.
Notice.
The Centers for Disease Control and Prevention (CDC) is seeking nominations for membership on the ACBCYW. The ACBCYW consists of 15 experts in fields associated with breast cancer, disease prevention, early detection, diagnosis, public health, social marketing, genetic screening and counseling, treatment, rehabilitation, palliative care, and survivorship in
Nominations for membership on the ACBCYW must be received no later than November 10, 2023. Packages received after this time will not be considered for the current membership cycle.
All nominations should be mailed to Kimberly E. Smith, MBA, MHA. c/o ACBCYW Secretariat, Centers for Disease Control and Prevention, 3719 North Peachtree Road, Building 100, Chamblee, Georgia 30341 or emailed (recommended) to
Kimberly E. Smith, MBA, MHA, Designated Federal Officer, National Center for Chronic Disease Prevention and Health Promotion, CDC, 4770 Buford Highway NE, Mailstop S107-4, Atlanta, Georgia 30341, Telephone: (404) 498-0073;
Nominations are being sought for individuals who have expertise and qualifications necessary to contribute to the accomplishments of the committee's objectives. Nominees will be selected based on expertise in the fields of breast health, breast cancer, disease prevention and risk reduction, survivorship (including metastatic breast cancer), hereditary breast and ovarian cancer (HBOC), or in related disciplines with a specific focus on young women. Persons with personal experience with early onset breast cancer are also eligible to apply. This includes but may not be limited to breast cancer survivors <45 years of age and caregivers of said persons. Federal employees will not be considered for membership. Members may be invited to serve up to four-year terms. Selection of members is based on candidates' qualifications to contribute to the accomplishment of ACBCYW objectives (
The U.S. Department of Health and Human Services policy stipulates that committee membership be balanced in terms of points of view represented, and the committee's function. Appointments shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, gender identity, HIV status, disability, and cultural, religious, or socioeconomic status. Nominees must be U.S. citizens and cannot be full-time employees of the U.S. Government. Current participation on federal workgroups or prior experience serving on a federal advisory committee does not disqualify a candidate; however, HHS policy is to avoid excessive individual service on advisory committees and multiple committee memberships. Committee members are Special Government Employees, requiring the filing of financial disclosure reports at the beginning and annually during their terms. CDC reviews potential candidates for ACBCYW membership each year and provides a slate of nominees for consideration to the Secretary of HHS for final selection. HHS notifies selected candidates of their appointment near the start of the term in November 2024, or as soon as the HHS selection process is completed. Note that the need for different expertise varies from year to year and a candidate who is not selected in one year may be reconsidered in a subsequent year. SGE nominees must be U.S. citizens and cannot be full-time employees of the U.S. Government. Candidates should submit the following items:
Current curriculum vitae, including complete contact information (telephone numbers, mailing address, email address).
At least one letter of recommendation from person(s) not employed by the U.S. Department of Health and Human Services. (Candidates may submit letter(s) from current HHS employees if they wish, but at least one letter must be submitted by a person not employed by an HHS agency (
A short biography (150 words or less).
Nominations may be submitted by the candidate him- or herself, or by the person/organization recommending the candidate.
The Director, Office of Strategic Business Initiatives, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
The Centers for Disease Control and Prevention (CDC), announces the following meeting of the Advisory Committee on Immunization Practices (ACIP). This meeting is open to the public.
Stephanie Thomas, Committee Management Specialist, Advisory Committee on Immunization Practices, National Center for Immunization and Respiratory Diseases, Centers for Disease Control and Prevention, 1600 Clifton Road NE, Mailstop H24-8, Atlanta, Georgia 30329-4027. Telephone: (404) 639-8836; Email:
Notice is hereby given of a change in the meeting of the Advisory Committee on Immunization Practices (ACIP); September 22, 2023, 10 a.m. to 5 p.m., EDT (times subject to change, see the ACIP website for updates:
Notice of the virtual meeting was published in the
Notice of the virtual meeting is being amended to add an additional agenda item in the matters to be considered, which should read as follows:
The Director, Office of Strategic Business Initiatives, Office of the Chief Operating Officer, Centers for Disease
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of meeting and request for comment.
In accordance with regulatory provisions, the Centers for Disease Control and Prevention (CDC) announces the following meeting of the Advisory Committee to the Director, Centers for Disease Control and Prevention (ACD, CDC). This is a hybrid meeting, accessible both in person and virtually (webcast live via the World Wide Web). It is open to the public and limited only by the space available. Time will be available for public comment.
The meeting will be held on November 14, 2023, from 9:00 a.m. to 4:00 p.m., EST (times subject to change).
Written comments must be received on or before October 27, 2023.
Please note that the meeting location, the CDC Roybal Campus, is a federal facility and in-person access is limited to United States citizens unless prior authorizations, taking up to 30 to 60 days, have been made. Visitors must follow all directions for access to CDC facilities. Directions for visitors to CDC, including safety requirements related to COVID-19; are available at
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Bridget Richards, MPH, Office of the Chief of Staff, Centers for Disease Control and Prevention, 1600 Clifton Road NE, Mailstop H21-10, Atlanta, Georgia 30329-4027; Telephone: (404) 345-1039; Email:
Interested persons or organizations are invited to participate by submitting written views, recommendations, and data. Please note that comments received, including attachments and other supporting materials, are part of the public record and are subject to public disclosure. Comments will be posted on
The Director, Office of Strategic Business Initiatives, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC) in the Department of Health and Human Services (HHS) announces the opening of a docket to obtain comment on proposed guidelines for the use of doxycycline post-exposure prophylaxis (PEP) for prevention of bacterial sexually transmitted infections (STI). The proposed guidelines for bacterial STI prevention include post-exposure prophylaxis with doxycycline (doxycycline PEP) because it has demonstrated benefit in reducing chlamydia, gonorrhea, and syphilis infections and represents a new approach to addressing STI prevention in populations at increased risk for these infections. Doxycycline PEP, when offered, should be implemented in the context of a comprehensive sexual health approach including risk reduction counseling, STI screening and treatment, recommended vaccination, and linkage to HIV pre-exposure prophylaxis (PrEP), HIV care, or other services, as appropriate. The purpose of the proposed guidelines is to provide updated clinical guidance for healthcare providers to inform the use of doxycycline PEP for preventing bacterial STI infections. CDC has made available a pre-recorded informational presentation to provide information about the studies considered when developing the proposed guideline, explain the public comment process, and provide an overview of important monitoring for antibiotic use and antibiotic resistance that the agency will be considering to address potential risks.
Written comments must be received on or before November 16, 2023. An Informational Presentation has been pre-recorded and is available at
You may submit comments, identified by Docket No. CDC-2023-0080 by either of the methods listed below. Do not submit comments by email. CDC does not accept comments by email.
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The informational presentation can be accessed at
John R. Papp, Centers for Disease Control and Prevention, 1600 Clifton Road NE, Mailstop U12-3, Atlanta, GA 30329; Telephone: 404-639-8000; Email:
CDC's proposed guidelines for the use of post-exposure prophylaxis with doxycycline for bacterial STI prevention in the United States is available under the Supporting and Related Materials tab in the docket for this notice, Docket No. CDC-2023-0080, on
Interested persons or organizations are invited to participate by submitting written views, recommendations, and data. In addition, CDC invites comments specifically on the following questions proposed in this Notice:
• Based on the evidence presented in the full guidelines document (see the Supporting and Related Materials tab in the docket), does the evidence support the proposed guidelines for the use of post-exposure prophylaxis with doxycycline for bacterial STI prevention, including but not limited to risks and benefits? If not, please state the reason why and, if available, provide additional evidence for consideration.
• Are CDC's proposed guidelines for the use of post-exposure prophylaxis with doxycycline bacterial STI prevention clearly written? If not, what changes do you propose to make it clear?
• If implemented as currently drafted, do you believe the proposed guidelines for the use of post-exposure prophylaxis with doxycycline for bacterial STI prevention would result in improved prevention of bacterial STIs in the United States? If not, please provide an explanation and supporting data or evidence.
• How can these proposed guidelines most effectively reach and be received by populations who would benefit from this intervention?
Please note that comments received, including attachments and other supporting materials, are part of the public record and are subject to public disclosure. Comments will be posted on
Incidence of sexually transmitted infections (STIs) caused by
The 2021 CDC STI Treatment Guidelines included a systematic review of the available literature on STI PEP and concluded that further studies were necessary to determine whether it would be an effective strategy for bacterial STI prevention (5). Since that time, promising results from several randomized trials on doxycycline PEP indicated the need to re-address this topic (6, 7). The new guidelines will offer an important resource for healthcare providers to inform the use of doxycycline PEP for preventing bacterial STI infections. CDC plans to use multiple surveillance systems to monitor impacts of the proposed guidelines including potential impacts on antibiotic use and antibiotic resistance in both STI and non-STI pathogens.
All comments received will be carefully reviewed and considered. The proposed guidelines are also undergoing peer review. All comments will be addressed in the final guidelines and the proposed guidelines will be revised as appropriate. CDC will publish another notice announcing the availability of the final guidelines.
Centers for Medicare & Medicaid Services, HHS.
Notice; partial withdrawal.
On Monday, September 25, 2023, the Centers for Medicare & Medicaid Services (CMS) published a notice document entitled, “Agency Information Collection Activities: Submission for OMB Review; Comment Request.” That notice invited public comments on five separate information collection requests, under Document Identifiers: CMS-R-26, CMS-R- 185, CMS-116, CMS-2746 and CMS-10261. Through the publication of this document, we are withdrawing the portion of the notice requesting public comment on the information collection request titled, “Clinical Laboratory Improvement Amendments (CLIA) Regulations.” Form number: CMS-R-26 (OMB control number: 0938-0612). We are also withdrawing the portion of the notice requesting public comment on the information collection request titled, “Granting and Withdrawal of Deeming Authority to Private Nonprofit Accreditation Organizations and CLIA Exemption Under State Laboratory Programs.” Form number: CMS-R-185 (OMB control number 0938-0686).
The original comment period for the document that published on September 25, 2023, remains in effect and ends October 25, 2023.
In FR document, 2023-20739, published on September 25, 2023 (88 FR 65689), we are withdrawing item 1 ” Clinical Laboratory Improvement Amendments (CLIA) Regulations” which begins on page 65689. We are also withdrawing item 2 ” Granting and Withdrawal of Deeming Authority to Private Nonprofit Accreditation Organizations and CLIA Exemption Under State Laboratory Programs.” which begin on page 65690. These items were published in error. Both items will be republished at a later date, thereby providing the public a full 30-day comment period as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces our decision to approve the Center for Improvement in Healthcare Quality (CIHQ) as a national accrediting organization (AO) for psychiatric hospitals that wish to participate in the Medicare or Medicaid programs.
The decision announced in this notice is applicable on November 1, 2023 through November 1, 2027.
Donald Howard, (410) 786-6764 or Lillian Williams, (410) 786-8636.
Under the Medicare program, eligible beneficiaries may receive covered services from a psychiatric hospital
Generally, to enter into a provider agreement with the Medicare program, a psychiatric hospital must first be certified by a State Survey Agency as complying with the conditions or requirements set forth in part 482 subpart A, B, C, and E of our regulations. Thereafter, the psychiatric hospital is subject to regular surveys by a State Survey Agency to determine whether it continues to meet the Medicare requirements. There is an alternative, however, to surveys by State agencies. Certification by a nationally recognized accreditation program can substitute for ongoing State review.
Section 1865(a)(1) of the Act provides that, if a provider entity demonstrates through accreditation by an approved national accrediting organization (AO) that all applicable Medicare conditions are met or exceeded, we may treat the provider entity as having met those conditions, that is, we may “deem” the provider entity as having met the requirements. Accreditation by an AO is voluntary and is not required for Medicare participation.
If an AO is recognized by the Secretary as having standards for accreditation that meet or exceed Medicare requirements, any provider entity accredited by the national accrediting body's approved program may be deemed to meet the Medicare conditions. A national AO applying for approval of its accreditation program under part 488, subpart A, must provide CMS with reasonable assurance that the AO requires the accredited provider entities to meet requirements that are at least as stringent as the Medicare conditions. Our regulations concerning the approval of AOs are set forth at § 488.5. The regulations at § 488.5(e)(2)(i) require the AO to reapply for continued approval of its accreditation program every 6 years or sooner as determined by CMS.
Section 1865(a)(2) of the Act and our regulations at § 488.5 require that our findings concerning review and approval of an AO's requirements consider, among other factors, the applying AO's requirements for accreditation; survey procedures; resources for conducting required surveys; capacity to furnish information for use in enforcement activities; monitoring procedures for provider entities that were not in compliance with the conditions or requirements; and their ability to provide us with the necessary data for validation.
Section 1865(a)(3)(A) of the Act provides a statutory timetable to ensure that our review of applications for CMS-approval of an accreditation program is conducted in a timely manner. The Act provides us 210 days after the date of receipt of a complete application, with any documentation necessary to make the determination, to complete our survey activities and application process. Within 60 days after receiving a complete application, we must publish a notice in the
On May 22, 2023
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• The comparison of CIHQ's Medicare psychiatric hospital accreditation program standards to our current Medicare hospitals Conditions of Participation (CoPs) and psychiatric hospital special CoPs.
• A documentation review of CIHQ's psychiatric hospital survey process to do the following:
++ Determine the composition of the survey team, surveyor qualifications, and CIHQ 's ability to provide continuing surveyor training.
++ Compare CIHQ's processes to those we require of State Survey Agencies, including periodic re-survey and the ability to investigate and respond appropriately to complaints against accredited psychiatric hospitals.
++ Evaluate CIHQ's procedures for monitoring psychiatric hospitals it has found to be out of compliance with CIHQ's program requirements. (This pertains only to monitoring procedures when CIHQ identifies non-compliance. If noncompliance is identified by a State Survey Agency through a validation survey, the State Survey Agency monitors corrections as specified at § 488.9(c)(1)).
++ Assess CIHQ's ability to report deficiencies to the surveyed hospital and respond to the psychiatric hospital's plan of correction in a timely manner.
++ Establish CIHQ's ability to provide CMS with electronic data and reports necessary for effective validation and assessment of the organization's survey process.
++ Determine the adequacy of CIHQ's staff and other resources.
++ Confirm CIHQ's ability to provide adequate funding for performing required surveys.
++ Confirm CIHQ's policies with respect to surveys being unannounced.
++ Confirm CIHQ's policies and procedures to avoid conflicts of interest, including the appearance of conflicts of interest, involving individuals who conduct surveys or participate in accreditation decisions.
++ Obtain CIHQ's agreement to provide CMS with a copy of the most current accreditation survey together with any other information related to the survey as we may require, including corrective action plans.
++ As authorized under § 488.8(h), CMS reserves the right to conduct onsite observations of accrediting organization operations at any time as part of the ongoing review and continuing oversight of an AO's performance.
In accordance with section 1865(a)(3)(A) of the Act, the May 22, 2023 proposed notice also solicited public comments regarding whether CIHQ's requirements met or exceeded the Medicare CoPs for psychiatric
We compared CIHQ's psychiatric hospital accreditation program requirements and survey process with the Medicare CoPs at 42 CFR part 482 subpart A, B, C and E, and the survey and certification process requirements of parts 488 and 489. Our review and evaluation of CIHQ's psychiatric hospital application, which were conducted as described in section III of this final notice, yielded the following areas where, as of the date of this final notice, CIHQ has revised its standards and certification processes in order to meet the requirements at § 488.26(b). CIHQ revised its requirements to provide additional guidance and instruction to surveyors on determining the appropriate level of citation for Life Safety Code deficiencies.
Based on our review and observations described in section III of this final notice, we have determined that CIHQ's psychiatric hospital accreditation program requirements meet or exceed our requirements, and its survey processes are also comparable. Therefore, we approve CIHQ as a national AO for psychiatric hospitals that request participation in the Medicare program, effective November 1, 2023 through November 1, 2027.
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Administrator of the Centers for Medicare & Medicaid Services (CMS), Chiquita Brooks-LaSure, having reviewed and approved this document, authorizes Chyana Woodyard, who is the Federal Register Liaison, to electronically sign this document for purposes of publication in the
Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).
Notice of meeting.
This notice announces that the date for the third public meeting of the Ground Ambulance and Patient Billing (GAPB) Advisory Committee is October 31, 2023 and November 1, 2023. The GAPB Advisory Committee will make recommendations with respect to the disclosure of charges and fees for ground ambulance services and insurance coverage, consumer protection and enforcement authorities of the Departments of Labor, Health and Human Services, and the Treasury (the Departments) and relevant States, and the prevention of balance billing to consumers. The recommendations shall address options, best practices, and identified standards to prevent instances of balance billing; steps that can be taken by State legislatures, State insurance regulators, State attorneys general, and other State officials as appropriate, consistent with current legal authorities regarding consumer protection; and legislative options for Congress to prevent balance billing.
A detailed agenda and materials will be available prior to the meeting on the GAPB Advisory Committee website at:
A recording and a summary of the meeting will be made available on the GAPB Advisory Committee website approximately 45 calendar days after the meeting.
Shaheen Halim, (410) 786-0641 or via email at gapbadvisorycommittee
Press inquiries may be submitted by phone at (202) 690-6145 or via email at
Section 117(a) of the No Surprises Act, enacted as part of the Consolidated Appropriations Act, 2021, div. BB, tit. I, Public Law 116-260 (December 27, 2020), requires the Secretaries of Labor, Department of Health and Human Services (HHS), and the Treasury to establish and convene an advisory committee for the purpose of reviewing options to improve the disclosure of charges and fees for ground ambulance services, better inform consumers of insurance options for such services, and protect consumers from balance billing. The Ground Ambulance and Patient Billing (GAPB) Advisory Committee is governed by the provisions of the Federal Advisory Committee Act (FACA), Public Law 92-463 (October 6, 1972), as amended, 5 U.S.C. app. 2. Information on past and current Committee activity can be found at:
On November 23, 2021, HHS published a Notice of Charter and Invitation for Member Nominations in the
The 17 Members of the GAPB Advisory Committee are as follows:
• Asbel Montes—Committee Chairperson; Additional Representative determined necessary and appropriate by the Secretaries.
• Ali Khawar—Secretary of Labor's Designee.
• Carol Weiser—Secretary of the Treasury's Designee.
• Rogelyn McLean—Secretary of Health and Human Services' Designee.
• Gamunu Wijetunge—Department of Transportation—National Highway Traffic Safety Administration.
• Suzanne Prentiss—State Insurance Regulators.
• Adam Beck—Health Insurance Providers.
• Patricia Kelmar—Consumer Advocacy Groups.
• Gary Wingrove—Patient Advocacy Groups.
• Ayobami Ogunsola—State and Local Governments.
• Ritu Sahni—Physician specializing in emergency, trauma, cardiac, or stroke.
• Peter Lawrence—State Emergency Medical Services Officials.
• Shawn Baird—Emergency Medical Technicians, Paramedics, and Other Emergency Medical Services Personnel.
• Edward Van Horne—Representative of Various Segments of the Ground Ambulance Industry.
• Regina Godette-Crawford—Representative of Various Segments of the Ground Ambulance Industry.
• Rhonda Holden—Representative of Various Segments of the Ground Ambulance Industry.
• Loren Adler—Additional Representative determined necessary and appropriate by the Secretaries.
The GAPB Advisory Committee Roster is also available on the GAPB Advisory Committee website at:
The third public meeting of the GAPB Advisory Committee will take place on October 31, 2023 and November 1, 2023. On October 31, 2023, the Committee will be presented with findings and recommendations from its subcommittees for discussion and deliberation. On November 1, 2023, the Committee will formally vote on which recommendations to adopt in its Report to the Secretaries. A more detailed agenda and materials will be made available prior to the meeting on the GAPB Advisory Committee website (listed previously).
The October 31, 2023 and November 1, 2023 GAPB Advisory Committee meeting will be open to the public. Attendance may be limited due to virtual meeting constraints. Interested parties are encouraged to register as far in advance of the meeting as possible. To register for the meeting, visit:
Members of the public may submit written comments for consideration by the Committee at any time via email to
You may view the documents discussed in this notice at:
The Administrator of CMS, Chiquita Brooks-LaSure, having reviewed and approved this document, authorizes Chyana Woodyard, who is the Federal Register Liaison, to electronically sign this document for purposes of publication in the
Office of Community Services (OCS), Administration for Children and Families (ACF), Department of Health and Human Services (HHS).
Notice of issuance of supplements.
OCS announces the intent to award a supplement in the amount of up to $3.6 million ($1.2 million per year for 3 fiscal years at $400,000 per individual award) to three Community Services Block Grant (CSBG) award recipients under Notice of Funding Opportunity (NOFO): Regional Performance and Innovation Consortia (RPIC) (HHS-2019-ACF-OCS-ET-1582, HHS-2019-ACF-OCS-ET-1586, and HHS-2019-ACF-OCS-ET-1587). The purpose of the RPIC awards is to support robust regional training and technical (T/TA) strategies for the CSBG Network—states, territories, directly-funded tribes and tribal organizations, and CSBG-eligible entities, and state associations within the 10 ACF regions. The RPICs are designed to assist in meeting high organizational standards in the areas of consumer input and involvement, community engagement, community assessment, organizational leadership, board governance, strategic planning, human resource management, financial operations and oversight, and data and analysis. In addition, the RPICs identify, promote, and support multiyear T/TA efforts to ensure high-quality programs and services and impactful outcomes for individuals, families, and communities.
The proposed period of performance is September 30, 2023, to September 29, 2026.
Dr. Lanikque Howard, Ph.D., Director, Office of Community Services, 330 C Street SW, Washington, DC 20201.
In Fiscal Year 2023, OCS published a total of 11 separate new competitive grant opportunities for the RPIC, each corresponding to a specific ACF region.
OCS announces the intent to award the following supplement awards:
Office of Planning, Research, and Evaluation, Administration for Children and Families, United States Department of Health and Human Services.
Request for public comments.
The Administration for Children and Families (ACF) Office of Planning, Research, and Evaluation (OPRE) at the U.S. Department of Health and Human Services (HHS) is proposing to collect information to examine a toolkit of new measures designed to assess and strengthen the quality of child care, the Home-Based Child Care Toolkit for Nurturing School-Age Children (HBCC-NSAC Toolkit). This study aims to build evidence about the English version of the HBCC-NSAC Toolkit for use by/with providers caring for children in a residential setting (
You can obtain copies of the proposed collection of information and submit comments by emailing
Office of Community Services, Administration for Children and Families, U.S. Department of Health and Human Services.
Request for public comments.
The Office of Community Services (OCS), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS), is requesting to extend the currently approved Low Income Home Energy Assistance Program (LIHEAP) Model Plan Application (OMB #0970-0075, expiration 12/31/2023) through August 31, 2024, and then making significant revisions to the FY 2025 application to be effective September 1, 2024. This notice outlines the proposed revisions for FY 2025.
Copies of the proposed collection of information can be obtained and comments may be forwarded by emailing
The LIHEAP Model Plan is an electronic form and is submitted to ACF/OCS through the On-Line Data Collection (OLDC) system within GrantSolutions, which is currently being used by all LIHEAP grant recipients to submit other required LIHEAP reporting forms. To reduce the reporting burden, all data entries from each grant recipient's prior year's submission of the Model Plan in OLDC are saved and re-populated into the form for the following fiscal year's application.
OCS is requesting the current LIHEAP Model Plan form to be extended through August 31, 2024. The currently approved form and justification package can be reviewed here:
OCS proposes the following changes to the LIHEAP Model Plan form beginning with FY 2025 reporting effective September 1, 2024:
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○ Remove Prefix, Suffix, Middle Name and Organizational Affiliation.
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○ (1) Current State-Tribe Agreement between their state and the Consortium, signed by the State Chief Executive Officer (such as a Governor or the delegate) and the Consortium President;
○ (2) Consortium letter listing the Tribes and signed by the elected Tribal Chief or President of each Tribe in the Consortium and signed by the Consortium President;
○ (3) A current resolution letter from each tribe in the Consortium, signed by the elected Tribal Chief or President of that Tribe. Each resolution letter needs to state that the Consortium has the Tribes' permission to apply for, and administer, LIHEAP on their behalf; needs to designate a time period for the permission or until rescinded or revoked.
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○ Eliminate 13a and b.—Already answered in #7; and Eliminate “Attach
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○ Add a data entry column and provide the breakdown of funding from the previous year's plan. This information is useful for the data dashboard.
○ Add language for “Tribal grant recipients: direct-grant tribes, tribal organizations, or territories with allotments of $20,000 or less may use for planning and administration up to 20% of the funds payable. Grant recipients that are direct-grant tribes, tribal organizations, or territories with allotments over $20,000 may use for planning and administration purposes up to 20% of the first $20,000 (or $4,000) plus 10% of the funds payable that exceeds $20,000. Any administrative costs in excess of these limits must be paid from non-Federal sources.”
○ Change “Crisis Assistance” to “Summer crisis assistance,” one question for “Winter crisis assistance,” and one for “Year-round assistance.”
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○ Remove Other and entire column. All allowable options are listed, other is not applicable.
○ Insert “at least” before the word “one” in two places in this question. The edited question would be “Do you consider households categorically eligible if at least one household member receives at least one of the following categories of benefits in the left column below?”
• 1.4a—Add a text box “Provide your definition of categorical eligibility. Please explain how households are categorically eligible (
• If 1.4 is answered no, do not allow the table to be completed. Caused data inconsistencies in the data dashboard and requires manual review.
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○ Hyperlink the word “nominal” to a description of the word: Nominal benefits are LIHEAP payments over $20 made to SNAP households with an energy burden that allow the household to claim the SNAP “heating/cooling standard utility allowance” (SUA).
• 1.8—Add “Other—Describe.” Grant recipients indicated there are exceptions and this box will allow those exceptions to be described and understood more clearly.
• 1.9—Remove SNAP and WIC as they cannot be counted as income.
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○ A PDF version of the application is available online and can be downloaded, filled out, and mailed in for processing.
○ A state-wide online application that allows a customer to complete data entry and submit an application electronically for processing.
○ One or more locally available online applications that allows a customer to complete data entry and submit an application electronically for processing.
○ Online application that is also mobile friendly.
○ Other, please describe.
○ If any of the above boxes are checked, please include a link here:
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• 1.11 Do you have a process for conducting and completing applications by phone (Yes/No)?
• 1.12 Do you or any of your subrecipients require in-person appointments in order to apply (Yes/No)? If yes, please provide more information.
• 1.13 How can applicants submit documentation for verification? Select all that apply (in-person, mail, email, portal application, other-describe).
• 2.2—Correct the spelling of “assistance”
• 2.3—Change “Elderly” to “Older Adults” (60 years or older)
• 2.3—Change “Disabled” to “Individuals with a disability”
• 2.4—Add space between “to” and “vulnerable”
• 2.6—Add the following sentence: “Please note: the maximum and minimum benefits must be shown in the payment matrix.”
• 3.3—Change “Elderly” to “Older Adults”
• 3.3—Change “Disabled” to “Individuals with a disability”
• 3.4—Add space between “to” and “vulnerable”
• 3.6—Add the following sentence: “Please note: the maximum and minimum benefits must be shown in the payment matrix.”
• 4.2—Add to narrative, “If you administer multiple crisis assistance programs (winter, summer, and/or year-round), include all program definitions.”
• 4.6-4.7 and 4.10-4.13—Modify so that it is no longer “yes or no” but mirrors question 4.15 so they can select which program the response is applicable. If the component is not selected under 1.2, the boxes will be grayed out so they cannot select that option. Modify the instructions for the section to be “Check appropriate boxes below to indicate type(s) of assistance provided”
• 4.6—Remove all CAPS from Crisis Assistance
• 4.7—Change “Elderly” to “Older Adults”
• 4.7—Change “Disabled” to “Individuals with a disability”
• 4.8—Modify “Fast Track” to “Benefit Fast Track, no separate amount of crisis funds is issued. Rather benefits are issued to crisis customers within crisis response time frames”
• 4.9—Add a box next to the question, “Amount to resolve crisis, up to a maximum amount”
• 4.11—Change “Physically Disabled” to “Individuals with a disability”
• 4.18—Add question that says, “Do you intend to utilize LIHEAP crisis funds to address disaster related crisis situations? “Yes” or “No” If yes, describe.” Add hover over box that states “OCS' block grant funding has built in flexibility to support grant recipients in disaster response. Please visit
• 5.3—Modify to “If yes, name the agency and attach a copy of the Internal Agreement or Contract.”
• 5.8—Change “Elderly” to “Older Adults”
• 5.8—Change “Disabled” to “Individuals with a Disability”
• 5.9—Add a 5.9a replace with current 5.10 “If yes, what is the maximum”
• 5.10—Change to “Do you use an Average Cost per Unit (ACPU).”
○ 5.10a If so, what is the ACPU amount?
• 5.11—This section needs two boxes for roof top solar and community solar projects.
• 6.1—This section needs to include other outreach including web posting, email, texting, events, and social media.
• 7.1—This section needs to include data entry field next to the first two boxes.
• Joint application for multiple programs (indicate programs included)
• Intake referrals to/from other programs (indicate programs)
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○ Add “Economic Development Agency”
○ Change “Welfare” to “State Department of Welfare (administers TANF, SNAP, and/or Medicaid)”
○ Eliminate space between “Energy” and “/” and “Environment Agency”
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• 8.10a “If yes, please explain.”
• 8.10b “Were other federal programs impacted such as CSBG, SSBG, Head Start, TANF, and Dept. of Energy Weatherization funding, etc.? Yes or No”
• 8.10c “If yes, please explain.”
○ Questions added due to previous situations and questions needing a response to these specific items.
• Add option at the end of the section to attach a copy of the vendor agreement.
• 10.1—Revise the question as, “How do you ensure proper fiscal accounting and tracking of funds?” Add the following instructional sentence: “Be specific about tracking of grant award, tracking of expenditures, tracking vendor (benefit) refunds, fiscal reporting process, and fiscal software system being used.” Clarification for grant recipients.
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○ Obligation (insert explanation box)
○ Expenditures (insert explanation box)
○ Expenditure timeframe (insert explanation box)
○ Administrative costs (insert explanation box)”
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• 10.3—Change wording to “Describe any audit findings of the grant recipient (
• 10.5—Change question to “Describe your monitoring process for compliance at each level below.”
○ Change “Grant recipient employees” check box to state:
• Grant recipients have a policy in place for appropriate separation of duties and internal controls
• Other, describe
• 10.7—Rewrite the question as “Describe how you select local agencies for monitoring reviews. Attach a risk assessment if subrecipients are utilized.”
• 10.8—Add boxes “Annually,” “Bi-annually,” “Tri-annually,” and “Other.” Please attach a monitoring schedule if one has been developed.
• 10.9 and 10.10—Remove.
• 10.11—Revise the question to, “How many local agencies are currently on corrective action plans?”
• 10.12—Remove.
• 11.1—Add explanation that Tribes do not need to hold a public hearing but must ensure participation through other means.
• 11.2—Remove. Removing because question is duplicative of 11.6.
• 11.3—Insert an option to add rows for additional dates and locations that they held public hearings on the proposed use and distribution of their LIHEAP funds.
• 11.6—Revise the question as follows: “What changes did you make to your LIHEAP plan as a result of public participation and solicitation of input?”
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• 12.5—Remove.
• 12.6—Remove.
• 13.3—Add the following instructional sentence: “Impact can be measured in many different ways by using: logic model, data tracking system, process evaluation, impact evaluation, number of households served vs applied, and performance management, etc.”
• 13.4—Add a space between “of” and “direct”
• 13.5—Remove.
• 14.3—Add a space between “of” and “45”
• 15.1a-c—Change question to be consistent with each entity type (grant recipient, local agency, vendor)
○ Formal training provided virtually, on-site, and/or formal training conference
• Annually
• Biannually
• As needed
• Other, describe
• 17.1b—Add “Posted in local administering agencies offices.”
• 17.4—Change “aliens” to “qualified non-citizens” in intro text. The second option in the question is phrased as “legal residence” but it needs to be changed to “U.S. Citizen or Qualified Non-Citizen.” The second box option should read “Client's submission of certain Social Security Administration cards is accepted as proof of U.S. Citizen or Qualified Non-Citizen.”
• 17.4—Rewrite the question as “What are your procedures for ensuring LIHEAP recipients are U.S. citizens or qualified non-citizens who are eligible to receive LIHEAP benefits?”
• 17.6—Should also include how electronic files are protected in a secure location.
• 19.1—Place of Performance: Add instructional sentence that this must be physical address. No PO Boxes allowed.
• 21.1—Add the following acknowledgment statement and a check
• Add optional attachment section for the following items: Policy Manual; Subrecipient Contract; Model Plan Participation Notes for Tribes.
The estimated time per response for the FY 2025 Model Plan has been increased based on the revisions. The estimated time per response for the FY 2026 Model Plan will reduce back after revisions are in place and respondents can duplicate response in OLDC.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration's (FDA or Agency) Center for Biologics Evaluation and Research's (CBER) Office of Therapeutic Products (OTP) and Center for Drug Evaluation and Research's (CDER) Office of New Drugs are announcing the opportunity for a limited number of development programs to participate in the Support for clinical Trials Advancing Rare disease Therapeutics (START) Pilot Program, with the goal of further accelerating the pace of development of certain CBER- and CDER-regulated products (novel drug and biological products) that are intended to treat a rare disease. Because each Center has identified specific needs concerning regulated products for rare diseases, the eligibility criteria for the pilot differ between CBER and CDER. This pilot would augment the currently available formal meetings between FDA and sponsors by addressing issues related to the development of individual products through more rapid, ad-hoc communication mechanisms. Sponsors, if selected for the pilot, would receive more frequent advice related to such specific issues through additional interactions to facilitate novel drug and biological product program development and generate high quality and reliable data intended to support a Biologics License Application (BLA) or New Drug Application (NDA). This notice outlines the eligibility criteria, what to submit in a request to participate in the pilot, selection criteria, process, and FDA-Sponsor interactions expected to occur for programs participating in the pilot.
From January 2, 2024, to March 1, 2024, FDA will accept requests to participate in the START Pilot Program and select no more than three participants from each Center (CBER and CDER). See the “Participation” section for eligibility criteria, instructions on how to submit a request to participate, and information regarding the selection process.
Andrew Harvan, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7268, Silver Spring, MD 20993-0002, 240-402-7911; or Quyen Tran, Center for Drugs Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 6301, Silver Spring, MD 20993-0002, 301-796-2771.
The purpose of the START Pilot Program is to further accelerate the pace of development of novel drug and biological products that are intended to address an unmet medical need as a treatment for a rare disease. The pilot is designed to be milestone-driven (
The pilot would augment the currently available formal meetings between FDA and sponsors (see FDA's draft guidance for industry entitled “Formal Meetings Between the FDA and Sponsors or Applicants of PDUFA Products” ((September 2023) (Ref. 1))) through more rapid, ad-hoc communications with FDA by addressing issues with specific programmatic needs for individual products. For example, these issues can be related to clinical study design, choice of control group, fine-tuning the choice of patient population, selecting appropriate endpoints for efficacy trials to support marketing approval, selecting statistical methodology, leveraging nonclinical information, or product characterization. For eligible development programs sponsors and FDA could benefit from such additional communication beyond the currently available formal meeting mechanisms to address specific programmatic needs that require in-depth discussions. The increased communication between FDA review staff and sponsors is intended to facilitate program development for specific products and to help generate high quality and reliable data intended to support a BLA or NDA.
From January 2, 2024, to March 1, 2024, FDA will accept requests to participate in the START Pilot Program and will initially select up to three participants in each Center. Taking into consideration lessons and sponsors' experiences from the initial iteration of this program, a second iteration of the pilot may be conducted to include more participants in the future. At a later date, FDA may also publish another notice in the
Sponsors who are interested in participating in the START Pilot Program should submit a request to participate as an amendment to their Investigational New Drug (IND) application.
To be considered for the START Pilot Program, participants must meet the following eligibility criteria:
• IND has been submitted in or converted to Electronic Common Technical Document (eCTD) format, unless the IND is of a type granted a waiver from eCTD format (see FDA's guidance for industry entitled “Providing Regulatory Submissions in Electronic Format—Certain Human Pharmaceutical Product Applications and Related Submissions using the eCTD Specifications” ((February 2020) (Ref. 2))) and remains in active status.
• Sponsor has demonstrated substantial effort to ensure that that Chemistry, Manufacturing, and Controls (CMC) development aligns with clinical development, for example, through documented control of manufacturing and testing procedures to ensure clinical and CMC development timeline are in alignment.
Given the specific identified needs for the products regulated by each Center for rare diseases, the following eligibility criteria differ between CBER and CDER:
• Existing OTP-regulated IND for a cellular or gene therapy under which the product is being developed toward a marketing application.
• Such product is intended to address an unmet medical need as a treatment for a rare disease
• Such product is intended to treat rare neurodegenerative conditions (including those of rare genetic metabolic etiology).
To participate in the START Pilot Program, sponsors should submit a written request as an amendment to the IND. The cover letter should (1) state “Request to participate in the START Pilot Program”, (2) note whether there is a breakthrough therapy (BT) designation for the product and for CBER-regulated products only—whether there is a BT designation and/or regenerative medicine advanced therapy (RMAT) designation, and (3) provide a point of contact.
The request should include the initial specific development issue(s) for a given product for enhanced communication and a proposed communication plan between the sponsor and review staff. In addition, the following information should be provided:
1. Program development plan.
The plan should describe the current state of program development, including any ongoing activities not already detailed in the IND.
• CMC development plan and current status.
• Nonclinical development plan and current status.
• Clinical development plan and current status.
2. Any specific issue(s) (grouped by review disciplines) for which the prospective applicants are seeking enhanced communications with FDA review staff to facilitate program development, including, for example, to ensure a mutual understanding of information needed to facilitate initiating the pivotal clinical study or to the pre-BLA/pre-NDA meeting stage.
3. The planned timeline for initiation of the clinical study(ies) intended to provide the primary evidence of effectiveness to support a marketing application or for a pre-BLA/pre-NDA meeting request.
4. The proposed communication plan for interactions between FDA review staff and the sponsor, including the proposed timing (
FDA intends to select participant CBER and CDER INDs based on the criteria outlined below. FDA will make its determination of participants following the close of the application period. FDA intends to issue a letter to notify each sponsor of FDA's decision on sponsor requests to participate within 90 days of the application deadline.
For the initial selection of up to three INDs from each Center for the START Pilot Program from eligible applicants, FDA intends to consider factors such as: (1) potential clinical benefits of the product, (2) whether resolution of the specific issues noted by the sponsor in their request to participate in the pilot could be facilitated through enhanced communication to improve efficiency of program development, (3) whether there is an BT or RMAT designation for the product, (4) whether CMC development timeline aligns with clinical development plans, and (5) while INDs for combination products (21 CFR 3.2(e)(1)) may be eligible, products that require significant cross-Center interactions (
If selected for the START Pilot Program, sponsors will receive enhanced communications with FDA review staff. These enhanced communications may vary between CBER and CDER but will include at a minimum an initial meeting to review features of the pilot, discuss a pathway intended to support a marketing application, and to discuss specific issues for which a sponsor requests enhanced communication with FDA. Additional communications will include ongoing interactions via email or teleconference that take place on a scheduled and/or as needed basis as agreed upon by the sponsor and FDA.
This notice refers to previously approved FDA collections of information. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in 21 CFR part 312 have been approved under OMB control number 0910-0014 and the collections of information in 21 CFR part 601 have been approved under OMB control number 0910-0338.
The following references are on display at the Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, 240-402-7500, and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at
1. FDA Draft Guidance for Industry “Formal Meetings Between the FDA and Sponsors or Applicants of PDUFA Products” (September 2023):
2. FDA Guidance for Industry “Providing Regulatory Submissions in Electronic Format—Certain Human Pharmaceutical Product Applications and Related Submissions using the eCTD Specifications” (February 2020):
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a final guidance for industry entitled “Human Prescription Drug and Biological Products—Labeling for Dosing Based on Weight or Body Surface Area for Ready-to-Use Containers—`Dose Banding.' ” The guidance is intended to assist applicants in incorporating dose banding information, based on dosing information of a previously approved drug product that is based on weight or body surface area (BSA), into the proposed labeling of injectable drug products that are the subject of certain marketing applications submitted to FDA. This guidance finalizes the draft guidance of the same title issued on July 21, 2022.
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002, or the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Chris Wheeler, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 3330, Silver Spring, MD 20993-0002, 301-796-0151; or Anne Taylor, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
FDA is announcing the availability of a guidance for industry entitled “Human Prescription Drug and Biological Products—Labeling for Dosing Based on Weight or Body Surface Area for Ready-to-Use Containers—`Dose Banding.' ” This guidance provides recommendations for incorporating dose banding information into the labeling of an injectable drug product that is seeking approval through a new drug application submitted under section 505(b) of the FD&C Act (21 U.S.C. 355(b)), a biologics license application submitted under section 351(a) of the PHS Act (42 U.S.C. 262(a)), or a supplement to one of these approved applications. The recommendations and examples in this guidance are relevant to situations in which an applicant (1) proposes to develop ready-to-use containers with a range of different strengths for an injectable drug product and (2) seeks to incorporate dose banding information into the prescribing information based on dosing information of a previously approved drug product that is based on weight or BSA.
This guidance finalizes the draft guidance entitled “Human Prescription Drug and Biological Products—Labeling for Dosing Based on Weight or Body Surface Area for Ready-to-Use Containers—`Dose Banding' ” issued on July 21, 2022 (87 FR 43533). FDA considered comments received on the draft guidance as it developed the final guidance. Changes from the draft guidance are primarily intended to improve clarity.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on “Human Prescription Drug and Biological Products—Labeling for Dosing Based on Weight or Body Surface Area for Ready-to-Use Containers—`Dose Banding.' ” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no new collection of information, it does refer to previously approved FDA collections of information. The previously approved collections of information are subject to review by Office of Management Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521). The collections of information in 21 CFR part 201 have been approved under OMB control number 0910-0572; the collections of information in 21 CFR part 314 have been approved under OMB control number 0910-0001; and the collections of information in 21 CFR part 601 have been approved under OMB control number 0910-0338.
Persons with access to the internet may obtain the guidance at
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Announcing supplemental funding for Regional Pediatric Pandemic Network award recipients in Maryland and Ohio.
HRSA provided additional award funds to the two Regional Pediatric Pandemic Network (RPPN) Program recipients in Maryland and Ohio with periods of performance ending in fiscal year 2024.
Sara Kinsman, MD, Director, Division of Child, Adolescent and Family Health, Maternal and Child Bureau, Health Resources and Services Administration, at
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In accordance with the Federal Advisory Committee Act, the Department of Health and Human Services is giving notice that the Advisory Committee on Infant and Maternal Mortality (ACIMM or Committee) is renewed. The effective date of the charter renewal is September 30, 2023.
Vanessa Lee, MPH, Designated Federal Official, Maternal and Child Health Bureau, HRSA, 5600 Fishers Lane, Room 18N84, Rockville, Maryland 20857; 301-443-0543; or
ACIMM is authorized by section 222 of the Public Health Service Act (42 U.S.C. 217a), as amended. The Committee is governed by provisions of Public Law 92-463, as amended (5 U.S.C. 10), which sets forth standards for the formation and use of Advisory Committees. ACIMM advises the Secretary of Health and Human Services on department activities, partnerships, policies, and programs directed at reducing infant mortality, maternal mortality and severe maternal morbidity, and improving the health status of infants and women before, during, and after pregnancy. The Committee provides advice on how best to coordinate Federal, State, local, Tribal, and Territorial governmental efforts designed to improve infant mortality, related adverse birth outcomes, and maternal health, as well as influence similar efforts in the private and voluntary sectors. The Committee provides guidance and recommendations on the policies, programs, and resources required to address the disparities and inequities in infant mortality, related adverse birth outcomes and maternal health outcomes, including maternal mortality and severe maternal morbidity. With its focus on underlying causes of the disparities and inequities seen in birth outcomes for women and infants, the Committee advises the Secretary of Health and Human Services on the health, social, economic, and environmental factors contributing to the inequities and proposes structural, policy and/or systems level changes.
The charter renewal for ACIMM was approved on September 8, 2023. The filing date is September 30, 2023. Renewal of the ACIMM charter gives authorization for the committee to operate until September 30, 2025.
A copy of the ACIMM charter is available on the ACIMM website at
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 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 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.
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.
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.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of 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 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.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Arthritis and Musculoskeletal and Skin Diseases Advisory Council.
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 or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. The meeting
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
In the interest of security, NIH has procedures at
Information is also available on the Institute's/Center's home page:
Notice is hereby given of a change in the meeting of the National Institute on Drug Abuse Special Emphasis Panel, October 31, 2023, 12:00 p.m. to October 31, 2023, 2:00 p.m., National Institute on Drug Abuse, 301 North Stonestreet Avenue, Bethesda, MD 20892 which was published in the
This notice is being amended to change the agenda from reviewing and evaluating grant applications to reviewing and evaluating contract proposals. The meeting date, time and location will remain the same. The meeting is closed to the public.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Office of AIDS Research Advisory Council.
The meeting will be held as a virtual meeting and will be open to the public as indicated below. Individuals who plan to view the virtual meeting and need special assistance or other reasonable accommodations to view the meeting, should notify the Contact Person listed below in advance of the meeting. The meeting can be accessed from the NIH Videocast at the following link:
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the 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.
National Institutes of Health, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995 to provide opportunity for public comment on proposed data collection projects, the National Institute on Drug Abuse (NIDA) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
Comments regarding this information collection are best assured of having their full effect if received within 60 days of the date of this publication.
To obtain a copy of the data collection plans and instruments, submit comments in writing, or request more information on the proposed project, contact: Dr. Kimberly LeBlanc Scientific Program Manager, Division of Extramural Research, National Institute on Drug Abuse, C/O NIH Mail Center/Dock 11, 3WFN Room 09C77 MSC 6021, Gaithersburg, MD 20877 (20892 for USPS), or call non-toll-free number (301) 827-4102, or Email your request, including your address, to:
Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 requires: written comments and/or suggestions from the public and affected agencies are invited to address one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimizes the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Audience feedback activities will include a mix of asynchronous and scheduled, live data collection: web-based survey activities, virtual discussion boards, individual interviews, and discussions groups. Assembling a cohort of audience feedback participants who are familiar with the ABCD Study and participate in multiple data collection activities minimizes the burden required to familiarize new participants with the purpose of the Study and the expectations for audience feedback.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 172.
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 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 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 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 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 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 a meeting of the Advisory Committee to the Deputy Director for Intramural Research.
The meeting will be open to the public as a virtual meeting. Individuals who plan to view the virtual meeting and need special assistance or other reasonable accommodations to view the meeting, should notify the Contact Person listed below in advance of the meeting. The meeting will be videocast and can be accessed from the NIH Videocasting and Podcasting website (
Any member of the public interested in presenting oral comments to the committee may notify the Contact Person listed on this notice at least 10 days in advance of the meetings. Interested individuals and representatives of organizations may submit a letter of intent, a brief description of the organization represented, and a short description of the oral presentation. Only one representative of an organization may be allowed to present oral comments and if accepted by the committee, presentations may be limited to five minutes. Both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the committee by forwarding their statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the 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
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 a 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 materials, 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.
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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, 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.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Board of Scientific Counselors, National Human Genome Research Institute.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Human Genome Research Institute, including consideration of personnel qualifications and performance, and the competence of individual investigators, 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.
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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITFs) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine or Oral Fluid (Mandatory Guidelines).
Anastasia Flanagan, Division of Workplace Programs, SAMHSA/CSAP, 5600 Fishers Lane, Room 16N06B, Rockville, Maryland 20857; 240-276-2600 (voice);
In accordance with Section 9.19 of the Mandatory Guidelines, a notice listing all currently HHS-certified laboratories and IITFs is published in the
If any laboratory or IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the internet at
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITFs) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines) using Urine and of the laboratories currently certified to meet the standards of the Mandatory Guidelines using Oral Fluid.
The Mandatory Guidelines using Urine were first published in the
The Mandatory Guidelines using Oral Fluid were first published in the
The Mandatory Guidelines were initially developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71 and allowed urine drug testing only. The Mandatory Guidelines using Urine have since been revised, and new Mandatory Guidelines allowing for oral fluid drug testing have been published. The Mandatory Guidelines require strict standards that laboratories and IITFs must meet in order to conduct drug and specimen validity tests on specimens for federal agencies. HHS does not allow IITFs to conduct oral fluid testing.
To become certified, an applicant laboratory or IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory or IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and IITFs in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines using Urine and/or Oral Fluid. An HHS-certified laboratory or IITF must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA), which attests that the test facility has met minimum standards. HHS does not allow IITFs to conduct oral fluid testing.
In accordance with the Mandatory Guidelines using Oral Fluid dated October 25, 2019 (84 FR 57554), the following HHS-certified laboratories meet the minimum standards to conduct drug and specimen validity tests on oral fluid specimens:
At this time, there are no laboratories certified to conduct drug and specimen validity tests on oral fluid specimens.
In accordance with the Mandatory Guidelines using Urine dated January 23, 2017 (82 FR 7920), the following HHS-certified IITFs meet the minimum
In accordance with the Mandatory Guidelines using Urine dated January 23, 2017 (82 FR 7920), the following HHS-certified laboratories meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities.
Each LOMR was finalized as in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Department of Homeland Security (DHS), Cybersecurity and Infrastructure Security Agency (CISA).
Notice of new advisory board establishment; solicitation of inaugural members.
The Secretary of Homeland Security (Secretary), in coordination with the Secretary of Education, the Secretary of Health and Human Services, and the Attorney General, has established the Federal School Safety Clearinghouse External Advisory Board (FSSC EAB or Board). The FSSC EAB will provide advice to the Secretary of DHS, through the Director of CISA, regarding the Federal Clearinghouse on School Safety Evidence-Based Practices (Clearinghouse). DHS is announcing the establishment of the FSSC EAB, a new advisory board and seeks inaugural members of the FSSC EAB.
Applications to seek membership appointment on the FSSC EAB will be accepted until 11:59 p.m., Eastern Daylight Time, on October 23, 2023.
Nominations may be submitted via email to
Lindsay Burton,
In response to taskings from the Secretary of DHS to meet the statutory requirements of the Bipartisan Safer Communities Act, the FSSC EAB will: (a) Provide feedback on the implementation of evidence-based practices and recommendations of the Clearinghouse (6 U.S.C. 665k(d)(2)(B)(i)); (b) Propose additional recommendations for evidence-based practices for inclusion in the Clearinghouse, provided such recommendations meet evidence-based criteria (6 U.S.C. 665k(d)(2)(B)(ii))); (c) Assist the Departments of Education, Health and Human Services, Homeland Security, and Justice in identifying evidence-based practices (6 U.S.C. 665k(b)(1)(A)); (d) Assist the Departments of Education, Health and Human Services, Homeland Security, and Justice in reviewing past practices and recommendations for inclusion in the Clearinghouse (6 U.S.C. 665k(b)(3)); and (e) Provide user feedback on the implementation of resources, evidence-based practices, and recommendations identified by the Clearinghouse (6 U.S.C. 665k(d)(1)(B)). The FSSC EAB is exempt from the requirements of the Federal Advisory Committee Act, (Pub. L. 92-463).
Members of the Board will serve as Representatives of their respective interest or sector. Members must be U.S. citizens or legal permanent residents of the United States. Members must be specially qualified to serve on the FSSC EAB by virtue of their education, training, and experience in the fields relevant to school safety, including, but not limited to, education, cybersecurity, law enforcement, public safety, public health, civil rights, developmental psychology, child and adolescent health, social work, and/or emerging technologies.
Members shall be comprised of representatives from the following:
Members will be required to sign a nondisclosure agreement and gratuitous service agreement.
DHS will consider a number of factors to determine each applicant's qualifications as they relate to school safety that would be useful to the Board, such as:
a. Educational background (
b. Leadership, experience, and accomplishments (
c. Employment and membership in associations (
With the establishment of the FSSC EAB, CISA is accepting submissions of interest to be members of the Board.
When submitting nominations, please do not provide any sensitive personal information. Nominations should be submitted via email, with the required information in the body of the email or in an attachment. Nominations must include the following:
1. The nominee's name, contact information (
2. A summary resume that describes the individual's qualifications and experience with respect to the subject matter areas listed above (not to exceed five pages); and
3. A statement acknowledging that support from the representing organization will be required if selected. (Support meaning the organization agrees with the individual's participation.)
Do not include sensitive personal information, such as dates of birth, home addresses, Social Security numbers, etc. Note too, that Nominees will be vetted for national security and public safety considerations. Public trust level security reviews will be conducted before members may serve.
Please submit nominations no later than October 23, 2023 via email to the address in the
Office of Policy Development and Research, Chief Data Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Anna P. Guido, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Room 8210, Washington, DC 20410; phone number 202-402-5535 or email:
Copies of available documents submitted to OMB may be obtained from Ms. Guido.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
(5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
HUD encourages interested parties to submit comments in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
October 10, 2023, ET, 2:00 p.m.-3:00 p.m.
Via Zoom.
Meeting of the Board of Directors, open to the public.
Nicole Stinson, Associate General Counsel, (202) 683-7117 or
The Inter-American Foundation is holding this meeting under the Government in the Sunshine Act, 5 U.S.C. 552b.
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Fish and Wildlife Service (Service), are proposing a new information collection.
Interested persons are invited to submit comments on or before December 1, 2023.
Send your comments on the information collection request (ICR) by
•
•
We will not accept email or faxes. Comments and materials we receive, as well as supporting documentation, will be available for public inspection on
To request additional information about this ICR, contact Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act (PRA, 44 U.S.C. 3501
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The proposed programmatic clearance would cover social science surveys, interviews, and focus groups designed to provide information to Service managers and practitioners to improve quality and utility of agency programs, services, and planning efforts. To ensure continuous improvement, Service activities and projects require ongoing systematic assessment of their design, implementation, and outcomes. Data from collections undertaken through the proposed programmatic clearance would provide information for planning, monitoring, and evaluating Refuge System efforts, as well as efforts of other Service programs. The scope of this programmatic clearance includes individual surveys, focus groups, and interviews of refuge visitors, potential visitors, and residents of communities near Service-managed units, and stakeholders and partners, including Tribal interests.
The President's Executive Order 14008 sets the goal of conserving “at least 30 percent of our lands and waters by 2030” through the Conserving and Restoring America the Beautiful campaign. A collaborative approach is needed to achieve the principles for locally led efforts and better understand the patterns and trends occurring across public lands and waters. The Service's national visitor survey is one approach to collecting information from the public related to visitation across the Refuge System. The national visitor survey seeks to understand the recreation trends and experiences of visitors at refuges to better manage for future visitation that aligns with national conservation goals. One of the recommendations for early focus and progress in the America the Beautiful campaign specifically recommends increasing access for outdoor recreation, a management objective the monitoring data from the visitor survey can help to inform.
The Service's Urban Wildlife Conservation program (Urban program) was established as a means to engage with urban communities more meaningfully in fish and wildlife conservation. It enumerates designation criteria for urban wildlife refuges (urban refuges), partnerships, and bird treaty cities, and describes how the standards of excellence apply to urban refuges and other urban activities. The Urban program aligns particularly well with the Department of the Interior's focus on equity and environmental justice, work that helps to achieve one of the President's Four Pillars (Racial Equity). Another recommendation outlined in the Conserving and Restoring America the Beautiful campaign includes creating safe outdoor opportunities in nature-deprived communities, a goal of which the Urban program is helping to achieve.
The Service is required to “evaluate and adapt” the practices of the Urban program through internal review of the urban entities by the Division of Visitor Services and Communications every 5 years, including an expanded visitor services review for the Urban Refuges as per Policy 110 FW 1. The Division
The Service's Human Dimensions (HD) Branch, programmatically aligned within the National Wildlife Refuge System, will serve as the office of control for the programmatic clearance. The role of the HD Branch is to build conservation social science understanding, capacity and integration within the Service. A suite of questions will serve as the basis for all information collections under this programmatic clearance. The suite of questions will be used to develop surveys to respond to the above-named Presidential Priorities as well as adaptively ensure improved customer experience and satisfaction. As the office of control, the HD branch ICR Coordinator will conduct the necessary quality control, including assuring that each survey instrument comports with the guidelines of the programmatic clearance.
We developed the following topic areas within the suite of questions to streamline the ICR process:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
To qualify for the generic programmatic review process, each individual collection under this programmatic clearance must be well-defined in terms of its sample or respondent pool and research methodology; it should clearly fit within the overall plan and scope of the approved ICR; and the survey questions must show a clear tie to Service management needs. Individual collections may not raise any controversial policy issues, include topics of significant public interest, or go beyond the methods specified and approved by OMB in this programmatic ICR. Any individual collection that requests non-agency goal-related data or information on controversial topics would be inappropriate for expedited review under this programmatic clearance and must go through the full PRA clearance process to solicit public feedback. In instances where HD Branch staff are involved with the development of the individual information collection, other uninvolved staff in the HD Branch or a member of the ICR review team would review the ICR.
We will obtain OMB approval of all individual survey submissions developed using the pre-approved suite of questions before the survey can be initiated. If, after consultation with the principal investigator, the ICR coordinator recommends a proposed survey for approval, both the Service and Departmental Information Collection Clearance Officers (ICCO) will review the ICR before it is formally transmitted to OMB for review and approval.
A copy of the draft suite of questions is available to the public for viewing in the docket on the
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bureau of Land Management, Interior.
Notice of call for nominations.
The purpose of this notice is to solicit public nominations for three positions on the Wild Horse and Burro Advisory Board (Board) that will become vacant on January 11, 2024. The Board provides advice concerning the management, protection, and control of wild free-roaming horses and burros on public lands administered by the Department of the Interior, through the Bureau of Land Management (BLM), and the Department of Agriculture, through the U.S. Forest Service.
Nominations must be post marked or submitted to the following addresses no later than November 16, 2023.
All mail sent via the U.S. Postal Service should be addressed as follows:
Wild Horses and Burro Division, U.S. Department of the Interior, Bureau of Land Management, Attn: Dorothea Boothe, HQ-260, 9828 31st Avenue; Phoenix, AZ 85051.
All packages that are sent via FedEx or UPS should be addressed as follows:
U.S. Department of the Interior, Bureau of Land Management, Wild Horse and Burro Division, Attn: Dorothea Boothe, 9828 31st Avenue, Phoenix, AZ 85051. Please consider emailing PDF documents to Ms. Boothe at
Dorothea Boothe, Wild Horse and Burro Program Coordinator, telephone: 602-906-5543, email:
Members of the Board serve without compensation; however, while away from their homes or regular places of business, Board and subcommittee members engaged in Board or subcommittee business approved by the Designated Federal Officer (DFO) may be allowed travel expenses, including per diem in lieu of subsistence under 5 U.S.C. 5703, in the same manner as persons employed intermittently in government service. Nominations for a term of 3 years are needed to represent the following categories of interest:
• Natural Resource Management;
• Public Interest (Equine Behavior); and
• Wild Horse and Burro Research.
The Board will meet one to four times annually. The DFO may call additional meetings in connection with special needs for advice. Individuals may nominate themselves or others. Any individual or organization may nominate one or more persons to serve on the Board.
Nominations should include a resume providing an adequate description of the nominee's qualifications, including information that would enable the Departments of the Interior and Agriculture to make an informed decision regarding meeting the membership requirements of the Board and permit the Departments to contact a potential member. Nominations are to be sent to the address listed under
As appropriate, certain Board members may be appointed as special government employees (SGEs). Please be aware that applicants selected to serve as SGEs will be required, prior to appointment, to file a Confidential Financial Disclosure Report in order to avoid involvement in real or apparent conflicts of interest. You may find a copy of the Confidential Financial Disclosure Report at the following Web site:
Pursuant to section 7 of the Wild Free-Roaming Horses and Burros Act, members of the Board cannot be employed by the State or Federal Government.
National Park Service, Interior.
Meeting notice.
In accordance with the Federal Advisory Committee Act of 1972, the National Park Service (NPS) is hereby giving notice that the Gateway National Recreation Area Fort Hancock 21st Century Advisory Committee (Committee) has rescheduled a public meeting originally scheduled for September 19, 2023.
The virtual meeting will take place on Thursday, November 16, 2023. The meeting will begin at 9 a.m. until 2 p.m., with a public comment period at 11:30 a.m. to 12 p.m. (eastern), with advance registration required. Individuals that wish to participate must contact the person listed in the
This will be a virtual meeting. Anyone interested in attending should contact Daphne Yun, Acting Public Affairs Officer, Gateway National Recreation Area, 210 New York Avenue, Staten Island, New York 10305, by telephone (718) 815-3651, or by email
The Committee was established on April 18, 2012, by authority of the Secretary of the Interior (Secretary) under 54 U.S.C. 100906(a) and is regulated by the Federal Advisory Committee Act. The Committee provides advice to the Secretary, through the Director of the NPS, on matters relating to the Fort Hancock Historic District of Gateway National Recreation Area. All meetings are open to the public.
Interested persons may present, either orally or through written comments, information for the Committee to consider during the public meeting. Written comments will be accepted prior to, during, or after the meeting. Members of the public may submit written comments by mailing them to the person listed in the
Due to time constraints during the meeting, the Committee is not able to read written public comments submitted into the record. Individuals or groups requesting to make oral comments at the public Committee meeting will be limited to no more than three minutes per speaker. All comments will be made part of the public record and will be electronically distributed to all Committee members. Detailed minutes of the meeting will be available for public inspection within 90 days of the meeting.
National Park Service, Interior.
Request for nominations.
The National Park Service (NPS), U.S. Department of the Interior, is requesting nominations for qualified persons to serve as members of the Preservation Technology and Training Board (Board).
Written nominations must be postmarked by November 1, 2023.
Nominations should be sent to Kirk A. Cordell, Executive Director, National Center for Preservation Technology and Training, National Park Service, 645 University Parkway, Natchitoches, Louisiana 71457, or email at
Kirk A. Cordell, via telephone (318) 356-7444. 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.
Established within the Department of the Interior, the National Center for Preservation Technology and Training (Center) is located at Northwestern State University of Louisiana in Natchitoches, Louisiana. Title IV, section 404 of Public Law 102-575, October 30, 1992, established the Board to provide advice and professional oversight to the Secretary of the Interior and the Center regarding the activities of the Center and to submit an annual report to the President and the Congress.
The Board is comprised of 13 members appointed for 4-year terms, as follows: (a) one member serving as the Secretary's designee; (b) six members who represent appropriate Federal, State, and local agencies, State and local historic preservation commissions, and other public and international organizations; and (c) six members on the basis of outstanding professional qualifications who represent major organizations in the fields of archeology, architecture, conservation, curation, engineering, history, historic preservation, landscape architecture, planning, or preservation education.
We are currently seeking members in category (c). Nominations should be typed and should include a resume providing an adequate description of the nominee's qualifications, including information that would enable the Department of the Interior to make an informed decision regarding meeting the membership requirements of the Board and permit the Department to contact a potential member. All documentation, including letters of recommendation, must be compiled and submitted in one complete package. All those interested in membership, including current members whose terms are expiring, must follow the nomination process. Members may not appoint deputies or alternates.
Members of the Board serve without compensation. However, while away from their homes or regular places of business in the performance of services for the Board as approved by the NPS, members may be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in Government service are allowed such expenses under section 5703 of Title 5 of the United States Code.
5 U.S.C. ch. 10
National Park Service, Interior.
In accordance with the Paperwork Reduction Act of 1995 we, the National Park Service (NPS), are proposing to renew an information collection with revisions.
Interested persons are invited to submit comments on or before November 1, 2023.
Written comments and suggestions on the information collection requirements should be submitted by the date specified above in
To request additional information about this ICR, contact Elisabeth Morgan, Recreation Grant Branch Chief by email at
In accordance with the Paperwork Reduction Act of 1995 (PRA, 44 U.S.C. 3501
A
It would be most helpful if NPS revised and expanded A&R questions to clarify the information sought. In our experience, incomplete information provided on this form (often due to misunderstanding what is required) creates additional work, expense and time lags for RCO's subgrantees as well as NPS. We all share the same goal of wanting to provide a complete accurate initial application, within reason of what information that an applicant would have without promise of any grant funding. The commenter also provided specific feedback on ways to provide clarity to the instructions in each section.
The comments from this respondent were mainly technical in nature, addressing the wording of some questions on both the A&R and C&S Forms, as well as describing issues with formatting on these forms that make the forms more difficult for applicants to use, including “an unnecessary amount of time to correct.” The respondent also noted that Section 3.0, Subsection C. Environmental Resources Survey should be improved. The respondent recommended that Tables 1 and 2 have a column added to indicate neutral impacts (impacts that are neither positive or negative) and a Not Applicable column (resource does not exist).
• We will revisit the forms to try to address the issues the commenter identified, such as possibly placing form fields in the document for responses so that applicants don't feel the need to enter their responses in colored text. We note that some of the issues the commenter described can be caused by how these documents are saved and shared for use, which may erase formatting.
• The tables in Section 3.C were revised to remove the response indicating more research is needed and to restore a “not present or N/A” option in Table 1. (Conforming changes were
• To accommodate the request proposing additional instructions for questions the NPS will create annotated versions of the forms to provide additional guidance.
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility.
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used.
(3) Ways to enhance the quality, utility, and clarity of the information to be collected.
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
LWCF grants are provided to states (including the 50 states; the Commonwealths of Puerto Rico and the Northern Mariana Islands; the District of Columbia; and the Territories of Guam, the U.S. Virgin Islands, and American Samoa) on a matching basis for up to 50 percent of the total project-related allowable costs. Grants to eligible insular areas may be for 100 percent assistance. Payments for all projects are made to the state organization that is authorized to accept and administer funds paid for approved projects. Local units of government participate in the program as sub-grantees of the state with the state retaining primary grant compliance responsibility. The following updates are included as revisions to this collection:
1.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bureau of Ocean Energy Management (BOEM), Interior.
Notice of availability.
BOEM is announcing the availability of the Proposed Final Program (PFP) for the 2024-2029 National Outer Continental Shelf (OCS) Oil and Gas Leasing Program (2024-2029 Program, National OCS Program, or Program), as well as the Final Programmatic Environmental Impact Statement for the 2024-2029 Program (Final Programmatic EIS).
For information on the 2024-2029 Program process or BOEM's policies associated with this notice, please contact Ms. Kelly Hammerle, Chief, National OCS Oil and Gas Leasing Program Development and Coordination Branch, at (703) 787-1613 or
BOEM is responsible for administering the leasing program for oil and gas resources on the OCS and advising the Secretary of the Interior on the National OCS Program. The PFP is the last in a series of three proposals made by the Secretary, pursuant to section 18 of the OCS Lands Act, before final action may be taken to approve the 2024-2029 National OCS Program. The three analytical phases used to develop a new National OCS Program are the (1) Draft Proposed Program (DPP); (2) Proposed Program; and (3) PFP.
The first proposal, the DPP, was published on July 3, 2017 (82 FR 30886), and was followed by a 60-day comment period. The second proposal, the Proposed Program, was published
After careful consideration of the OCS Lands Act section 18(a) factors, as well as input from governors and the public, the Secretary's final proposal, the PFP, includes three potential lease sales in the Gulf of Mexico (GOM) Program Area (which contains the Western GOM Planning Area and the portions of the Central and Eastern GOM planning areas not currently under Presidential withdrawal—see Figure 1). An option for a potential lease sale in the northern portion of the Cook Inlet Planning Area was identified in the Proposed Program and analyzed as part of the PFP. Based on careful consideration of section 18 requirements and factors, no Cook Inlet sale is included in the PFP.
In the PFP, the Secretary has decided to require that all leases issued under the 2024-2029 Program will include, as lease stipulations, programmatic mitigation measures to protect topographic features and pinnacle trends. Applying these stipulations at the National OCS Program development stage is consistent with current practice and continues the effective protection of these biologically sensitive areas, should they be offered in the three potential lease sales scheduled under this PFP.
The schedule shown in Table 1 reflects the potential lease sales for the 2024-2029 PFP. Figure 1 depicts the program area included in the 2024-2029 PFP.
The Secretary's final proposal, as described in the PFP, is the proposed action evaluated in the Final Programmatic EIS. BOEM has elected to prepare the Programmatic EIS to help describe and analyze the potential environmental impacts that could result from leasing, exploration, production, and decommissioning associated with lease sales under the National OCS Program for 2024-2029. The National Aeronautics and Space Administration and the National Park Service are Cooperating Agencies on the Final Programmatic EIS.
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Bureau of Ocean Energy Management, Interior.
Notice of delay of sale.
With this notice, the Bureau of Ocean Energy Management (BOEM) is announcing the rescheduling of Gulf of Mexico Lease Sale 261. Instead of holding the sale on September 27, 2023, as originally planned, BOEM will open and publicly announce bids received for blocks offered in the sale on November 8, 2023, in accordance with the order issued by the United States Court of Appeals for the Fifth Circuit on September 25, 2023. Additional information regarding the sale and a new Final Notice of Sale (NOS) package will be available on BOEM's website at least 30 days prior to the sale date at
The New Orleans Office Lease Sale Coordinator, Greg Purvis, at
On August 25, 2023, BOEM published in the
BOEM is returning all bids submitted by bidders under the previously issued Final NOS and is rescheduling Lease Sale 261 for November 8, 2023. Bidders wishing to participate in Lease Sale 261
BOEM intends to publish the revised Final NOS in the
Bureau of Ocean Energy Management, Interior
Call for information and nominations, request for comments.
The Bureau of Ocean Energy Management (BOEM) issues this Call for Information and Nominations (Call) covering proposed Gulf of Mexico oil and gas lease sales in the available portions of the Western, Central, and Eastern Gulf of Mexico Planning Areas (WPA, CPA, and EPA, respectively). Those sales are described in the 2024-2029 National Outer Continental Shelf (OCS) Oil and Gas Leasing Program (2024-2029 National OCS Program), which BOEM announced on September 29, 2023. This Call solicits industry nominations of acreage for possible inclusion in future sales and requests information from the public on the Call Area for lease sale planning. Specifically, BOEM seeks information on geological conditions, archaeological sites, potential use conflicts, areas of special concern, and other socioeconomic, biological, and environmental information. This Call is not a final decision to lease and does not prejudge any future secretarial decisions concerning leasing in the Gulf of Mexico.
All nominations and comments must be received by BOEM or postmarked no later than November 1, 2023.
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Bridgette Duplantis, Chief of Leasing and Financial Responsibility Section, BOEM, Gulf of Mexico OCS Region, 1201 Elmwood Park Boulevard, Mail Stop GM 266A, New Orleans, Louisiana 70123-2394, telephone (504) 736-7502, email:
The PEIS will evaluate the potential effects that oil and gas activities resulting from a lease sale could have on the human, marine, and coastal environments. The PEIS may propose measures and lease stipulations to mitigate adverse impacts for the alternatives being analyzed. Consultations will be conducted, as appropriate. Consultation with Tribal Nations, States, and Federal agencies address BOEM obligations under the Coastal Zone Management Act, Endangered Species Act, the Magnuson-Stevens Fishery Conservation and Management Act, section 106 of the National Historic Preservation Act, and Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” The results of these consultations assist the Secretary in leasing decisions.
(1) Call for Information and Nominations: See section below.
(2) Area Identification: Based on the information and nominations submitted in response to this Call, BOEM will recommend an area for further leasing consideration and environmental analysis. Upon approval by the Secretary, BOEM will announce the proposed area identified for leasing in the
(3) Proposed Notice of Sale (PNOS): If BOEM proceeds with the leasing process after Area Identification and environmental analysis, it will publish a Notice of Availability of a PNOS in the
(4) Final Notice of Sale (FNOS): If BOEM decides to proceed with leasing, it will publish a FNOS in the
This Call is published pursuant to the Outer Continental Shelf Lands Act (OCSLA), as amended (43 U.S.C. 1331-1356) and the implementing regulation at 30 CFR 556.301.
The purpose of this Call is twofold. First, this Call solicits industry nominations for areas of leasing interest. Second, this Call requests comments and information from the public on the areas that should be included in the proposed oil and gas lease sales in the Gulf of Mexico included in the 2024-2029 National OCS Program. Pursuant to 30 CFR 556.301, BOEM seeks comments from industry and the public on:
(a) industry interest in the Call Area, including nominations or indications of interest in specific blocks within the Call Area;
(b) geological conditions, including bottom hazards;
(c) archaeological sites on the seabed or near shore;
(d) potential use conflicts in the Call Area, including navigation, recreation, and fisheries;
(e) areas that should receive special concern and analysis; and
(f) other socioeconomic, biological, and environmental information.
BOEM will consider information submitted in response to this Call to:
• inform the Area Identification process under 30 CFR 556.302;
• prioritize areas with higher potential for oil and gas development;
• develop potential lease terms and conditions;
• identify potential use conflicts and potential mitigation measures; and
• assist in BOEM's planning and environmental review process.
The Call Area is identical to the Gulf of Mexico (GOM) area included in the 2024-2029 National OCS Program and includes the entire WPA, CPA, and EPA, except areas withdrawn by the President. The Call Area excludes areas withdrawn pursuant to section 12 of OCSLA (43 U.S.C. 1341) by Presidential memoranda dated September 8, 2020, (withdrawing the bulk of the EPA and a portion of the CPA) and July 17, 2008, (withdrawing the Flower Garden Banks National Marine Sanctuary within the boundaries that existed on July 14, 2008).
The WPA is bound on the west and north by the Federal-State boundary offshore Texas. The eastern boundary begins at the offshore boundary between Texas and Louisiana and proceeds southeasterly to 28.43° N latitude, thence south-southwesterly to 27.49° N latitude, thence south-southeasterly to 25.80° N latitude. The WPA is bound on the south by the maritime boundary with Mexico as established by treaties between the United States and Mexico. BOEM is seeking nominations and comments on the entire WPA, which consists of approximately 28.58 million acres, of which approximately 26.45 million acres are currently unleased.
The CPA is bound on the west by the WPA's eastern boundary and on the north by the Federal-State boundaries offshore Louisiana, Mississippi, and Alabama. The eastern boundary of the CPA begins at the offshore boundary between Alabama and Florida and proceeds southeasterly to 26.19° N latitude, thence southwesterly to 25.6° N latitude. The CPA is bound on the south by the maritime boundary with Mexico as established by the “Treaty between the Government of the United States of America and the Government of the United Mexican States on the Delimitation of the Continental Shelf in the Western Gulf of Mexico beyond 200 Nautical Miles,” which took effect in January 2001. BOEM is seeking nominations and comments on the area within the CPA not subject to Presidential withdrawal (approximately 64.47 million acres, of which approximately 56.86 million acres are currently unleased).
The Call Area includes two small sections of the EPA not subject to the 2020 Presidential withdrawal. See
A map depicting the Call Area is available for download on the BOEM website at:
BOEM requests comments and nominations for the entire Call Area. However, the GOM hosts many other uses of the OCS, some of which may conflict with oil and gas leasing or associated activities. Therefore, consideration of a targeted leasing approach is warranted.
Under a targeted leasing approach, GOM areas proposed for leasing could be further refined and narrowed based on public input and analysis during the planning and environmental review stages. A targeted leasing approach could, for example, remove biologically sensitive areas, areas that serve as unique habitat, and areas that conflict with other uses of the marine environment, such as those areas used for commercial fishing, sand resources, or future wind energy development. This targeted approach could also offer lease sales in areas with the highest resource potential while appropriately weighing environmental protection and other uses of the ocean and seabed, consistent with OCSLA. A targeted approach could also be considered in light of section 50265(b)(2) of the Inflation Reduction Act. That section requires BOEM to offer at least 60 million OCS acres for oil and gas leasing within the 12 months prior to issuing an offshore wind lease.
BOEM seeks comments on implementing targeted leasing and information on areas of specific interest within the Call Area as it continues analyzing areas most suitable for oil and gas leasing.
BOEM requests parties interested in leasing any whole or partial blocks within the Call Area to indicate their interest in, and comment on, blocks that they would like included in a proposed lease sale. Parties should explicitly nominate whole or partial blocks and rank them using the following indicators: 1 [high], 2 [medium], or 3 [low]. Parties are encouraged to be as specific as possible in prioritizing blocks and supporting nominations with detailed information, such as relevant geologic, geophysical, and economic data. BOEM will consider as low priority areas where interest has been indicated but not prioritized.
Parties may also nominate blocks by OPD and leasing map designations to ensure correct interpretation of their nominations. OPDs and leasing maps are available on BOEM's website at
See subsection 6, “Protection of Privileged, Proprietary, and Personal Information,” regarding protection and release of information and how to submit proprietary information.
BOEM also seeks comments from the public regarding particular geological, environmental, biological, archaeological, and socioeconomic conditions, potential use conflicts, or other information about conditions that could affect the potential leasing and development of particular areas. Comments may refer to broad areas or particular OCS blocks.
BOEM will protect privileged or proprietary information in accordance with the Freedom of Information Act (FOIA) and OCSLA requirements. To avoid inadvertent release of such information, you should mark all documents and every page containing such information with “Confidential—Contains Proprietary Information.” To the extent a document contains a mix of proprietary and nonproprietary information, you should clearly mark the document to indicate which portion of the document is proprietary and which is not. Exemption 4 of FOIA applies to trade secrets and commercial or financial information that you submit that is privileged or confidential. BOEM considers nominations of specific blocks to be proprietary. Therefore, BOEM will not release information that identifies any particular nomination with any particular party, so as not to compromise the competitive position of any participants.
Please be aware that BOEM's practice is to make all other comments, including the names and addresses of individuals, available for public inspection. Before including your address, phone number, email address, or other personally identifiable information in your comment, please be advised that your entire comment, including your personally identifiable information, may be made publicly available at any time. 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 consequences of the disclosure of information, such as embarrassment, injury, or other harm.
Even if BOEM withholds your information in the context of this Call, your submission is subject to the FOIA. If your submission is requested under the FOIA, your information will only be withheld if BOEM determines that one of the FOIA exemptions to disclosure applies. Such a determination will be made in accordance with the Department's FOIA regulations and applicable law.
BOEM will make available for public inspection all comments, in their entirety, submitted by organizations and businesses (except as provided above for proprietary information) or by individuals identifying themselves as representatives of organizations or businesses.
Bureau of Ocean Energy Management (BOEM), Interior.
Notice of intent (NOI) to prepare a programmatic environmental impact statement (PEIS); request for comments.
Consistent with the regulations implementing the National Environmental Policy Act (NEPA), BOEM announces its intent to prepare a Gulf of Mexico (GOM) Regional Outer Continental Shelf (OCS) Oil and Gas Programmatic Environmental Impact Statement (GOM Oil and Gas PEIS). The GOM Oil and Gas PEIS will analyze the potential impacts of a representative oil and gas lease sale in available OCS areas of the Western, Central, and Eastern Planning Areas (Proposed Action) and the associated potential site and activity-specific approvals resulting from a sale. This NOI announces the scoping process BOEM will use to identify significant issues and potential alternatives for consideration in the GOM Oil and Gas PEIS. The draft PEIS will include a summary of all alternatives, information, and analyses submitted during the scoping process for consideration by BOEM and the cooperating agencies.
BOEM will consider comments received by November 1, 2023. BOEM will hold two virtual public scoping meetings for the GOM Oil and Gas PEIS. The first will be held on October 17, 2023, at 6 p.m. CDT, and the second on October 19, 2023, at 1 p.m. CDT.
Additional information and registration for the public meetings may be found here:
Detailed information can be found on BOEM's website at:
Written comments can be submitted through the
Helen Rucker, BOEM New Orleans Office, Office of Environment, 1201 Elmwood Park Blvd., New Orleans, Louisiana 70123, telephone (504) 736-2421, or email
The purpose of the Federal Proposed Action is to offer for lease, and ultimately to allow for potential post-lease development through plan and permit approvals (subject to additional environmental review and regulatory oversight), those areas that may contain economically recoverable oil and gas. This purpose is consistent with BOEM's mandate to further the orderly development of OCS oil and gas resources under the OCS Lands Act. Each individual proposed lease sale would provide qualified bidders the opportunity to bid upon and lease available acreage in the GOM OCS in order to explore, develop, and produce oil and natural gas.
The need for the Proposed Action is to manage the development of OCS oil and gas resources in an environmentally and economically responsible manner. Oil from the GOM OCS contributes to meeting domestic demand; however, combustion of oil and natural gas from the GOM OCS creates greenhouse gas (GHG) emissions, fueling climate change, which poses a significant global threat. The long-term goal of the Biden administration is to reach net-zero GHG emissions by 2050 and to limit global warming to less than 1.5° Celsius. The administration also established goals of a 50 percent reduction of 2005 GHG emissions by 2030 and a carbon pollution-free power sector by 2035 (
To meet these targets, the United States would have to drastically change the way it both consumes and supplies energy. An increase in renewable energy production, electrification, energy efficiency, and reduced consumption leads to less reliance on oil and gas resources and reduced demand. Refer to chapters 1.2 and 6 of the 2024-2029 National OCS Oil and Gas Leasing Proposed Final Program (2024-2029 National OCS Proposed Final Program) for details on U.S. energy needs and national and regional energy markets, respectively. Additionally, under the Inflation Reduction Act of 2022 (Pub. L. 117-169, enacted Aug. 16, 2022), Congress directed that the Secretary of the Interior must hold an offshore oil and gas lease sale(s) totaling 60 million acres in the year prior to issuing any wind energy leases.
The Proposed Action evaluated in this PEIS is to hold an oil and gas lease sale on the U.S. GOM OCS. This PEIS is expected to be used to inform the decision for the first GOM lease sale proposed in the 2024-2029 National OCS Oil and Gas Leasing Program. It also is expected to be used and supplemented as appropriate for decisions on future proposed GOM lease sales. In addition, this PEIS will be used for tiering of associated post-lease site and activity-specific OCS oil- and gas-related activity analyses and approvals.
In this PEIS, BOEM will analyze four alternatives to the Proposed Action: a no action alternative and three action alternatives. Because this PEIS analyzes a representative lease sale, Alternative A (No Action) is the cancellation of a single proposed GOM lease sale.
The first action alternative (Alternative B) offers all available unleased acreage in the U.S. GOM OCS, including the Western and Central Planning Areas and the portion of the Eastern Planning Area not subject to Presidential withdrawal. Alternative B correlates to Program Area 1 from the 2024-2029 National OCS Proposed Final Program and would satisfy the requirement in the Inflation Reduction Act to offer an aggregate of at least 60 million acres for offshore oil and gas leasing within a 12-month period prior to issuing offshore wind energy leases. Alternative B analyzes lease stipulations and other mitigation measures for environmental protection.
The second action alternative (Alternative C) would allow for a proposed lease sale excluding targeted portions of the Central, Western, and Eastern Planning Areas within the U.S. GOM OCS. Alternative C would satisfy the requirement in the Inflation Reduction Act to offer an aggregate of at least 60 million acres for offshore oil and gas leasing within a 12-month period prior to issuing offshore wind energy leases. Alternative C would exclude several areas for environmental protection purposes and to avoid conflicts with other ocean uses. Under this alternative, BOEM would analyze the effects of a single oil and gas sale offering at least the aggregate area required by the Inflation Reduction Act to allow wind energy leases to be issued.
The final action alternative (Alternative D) would allow for a proposed lease sale excluding even more targeted portions than Alternative C in the Central and Western Planning Areas within the U.S. GOM OCS. Alternative D would exclude more of the OCS for environmental considerations and to avoid conflicts with other ocean uses. However, this Alternative would not on its own satisfy the aggregate lease acreage requirements of the Inflation Reduction Act to issue offshore wind energy leases. Selection of this alternative would require at least one additional lease sale within a 12-month period in order to satisfy the requirements of the Inflation Reduction Act.
A complete description of the alternatives considered may be found here:
Potential impacts to resources may include adverse or beneficial impacts on air quality; water quality; coastal communities and habitats; benthic communities and habitats (including protected corals); pelagic communities and habitats; fishes and invertebrates; birds; marine mammals; sea turtles; commercial fisheries; recreational fishing; recreational resources; land use and coastal infrastructure; social factors (including environmental justice); economic factors; and cultural, historical, and archaeological resources. These potential impacts will be analyzed in the draft and final GOM Oil and Gas PEIS.
Based on a preliminary evaluation of these resources, previous NEPA analyses, and BOEM's extensive history of leasing in the GOM, BOEM expects potential impacts on the resources listed above from routine air emissions, discharges and wastes, bottom disturbance, noise, coastal land use or modification, lighting and visual impacts, offshore habitat modification or space use, and socioeconomic changes. Additional impacts may occur from accidental events such as unintentional releases into the environment, response activities, or strikes and collisions. Past GOM oil and gas NEPA analyses (assuming analyzed mitigation measures are adopted) have shown that impacts range from negligible to moderate with most being negligible or minor and some beneficial.
If the Department of the Interior ultimately decides to move forward with an individual lease sale, neither this PEIS nor the resulting individual lease sale record of decision (ROD) will authorize any immediate activities (beyond ancillary activities under a lease) or approve any individual applications for plans or permits. The
When plans or permit applications are submitted to BOEM or the Bureau of Safety and Environmental Enforcement, the site-specific characteristics of the project will be evaluated by preparing additional environmental analyses that may tier from this PEIS or incorporate it by reference. Based on the site-specific applications and evaluations, BOEM may then reach a site-specific determination and approve, approve with modifications, or disapprove individual plans or permits. This PEIS may inform future BOEM decision-making on plan submittals but does not approve or authorize any applications or plans. Therefore, neither this PEIS nor a resulting lease sale ROD constitutes a final agency action authorizing or approving any individual plan(s) or permit(s).
In conjunction with this PEIS, BOEM may undertake various consultations or coordination in accordance with applicable Federal laws, such as the Endangered Species Act, Magnuson‐Stevens Fishery Conservation and Management Act, National Historic Preservation Act (NHPA), and Coastal Zone Management Act, as appropriate. BOEM will also conduct government-to-government Tribal consultations.
After the draft PEIS is completed, the U.S. Environmental Protection Agency will publish a notice of availability (NOA). BOEM will request public comments on the draft PEIS through its own NOA for the draft PEIS. BOEM currently expects both NOAs for the draft PEIS to be published in summer 2024. After the public comment period ends, BOEM will review and respond to comments received and will develop the final PEIS. BOEM will make the final PEIS available to the public at least 30 days prior to issuance of any ROD. If the decision is to hold a sale, the ROD will document the final decision on the area and terms to be offered in the sale, including any required mitigation (
This NOI commences the public scoping process to identify issues and potential alternatives for consideration in the GOM Oil and Gas PEIS. BOEM will hold two virtual public scoping meetings as described above under the “Dates” caption and at
BOEM will also use the NEPA comment process to initiate the section 106 consultation process under the NHPA (54 U.S.C. 300101
BOEM, as the lead agency, invites other Federal agencies and Tribal, State, and local governments to consider becoming cooperating agencies in the preparation of this PEIS. The Council on Environmental Quality (CEQ) NEPA regulations specify that qualified agencies and governments are those with “jurisdiction by law or special expertise.” Potential cooperating agencies should consider their authority and capacity to assume the responsibilities of a cooperating agency and should be aware that an agency's role in the environmental analysis neither enlarges nor diminishes the final decision-making authority of any other agency involved in the NEPA process.
Upon request, BOEM will provide potential cooperating agencies with a written summary of expectations for cooperating agencies, including schedules, milestones, responsibilities, scope and detail of cooperating agencies' expected contributions, and availability of pre-decisional information. BOEM anticipates this summary will form the basis for a memorandum of agreement between BOEM and any non-Department of the Interior cooperating agency; a memorandum of understanding is required in the case of non-Federal agencies.
BOEM does not provide financial assistance to cooperating agencies. Governmental entities that are not cooperating agencies will have opportunities to provide information and comments to BOEM during the public input stages of the NEPA process.
Federal agencies, Tribal, State, and local governments, and other interested parties are requested to comment on the scope of this PEIS, significant issues that should be addressed, and alternatives that should be considered. For information on how to submit comments, see the “Addresses” section above.
BOEM does not consider anonymous comments. Please include your name and address as part of your comment. Comments submitted in response to this notice are a matter of public record. You should be aware that your entire comment—including your address, phone number, email address, and other personally identifiable information included in your comment—may be made publicly available.
You may request that BOEM withhold your personally identifiable information from public disclosure. For BOEM to consider withholding from disclosure your personally identifying information, you must identify, in a cover letter, any information contained in the submittal of your comments that, if released, would constitute a clearly unwarranted invasion of your personal privacy. You must also briefly describe any possible harmful consequences from disclosing your information, such as embarrassment, injury, or other harm.
Even if BOEM withholds your information in the context of this NOI, your submission is subject to the Freedom of Information Act (FOIA). If your submission is requested under the FOIA, BOEM can only withhold your information if it determines that one of the FOIA's exemptions to disclosure applies. Such a determination will be made in accordance with the Department of the Interior's FOIA regulations and applicable law.
Additionally, under section 304 of the NHPA, BOEM is required, after consultation with the Secretary of the Interior, to withhold the location, character, or ownership of historic property if it determines that disclosure may, among other things, cause a significant invasion of privacy, risk harm to the historic property, or impede the use of a traditional religious site by practitioners. Tribal entities and other
All submissions from organizations or businesses and from individuals identifying themselves as representatives or officials of organizations or businesses will be made available for public inspection in their entirety.
BOEM requests data, traditional and indigenous knowledge, comments, views, information, analysis, alternatives, or suggestions relevant to the analysis of the Proposed Action from the public; affected Federal, Tribal, State, and local governments, agencies, and offices; the scientific community; industry; or any other interested party. Specifically, BOEM requests information on the following topics:
1. Potential mitigation measures, including GOM oil and gas development alternatives, and the effects these could have on:
a. Biological resources, including birds, coastal communities, benthic communities, pelagic communities, fish, invertebrates, essential fish habitat, marine mammals, and sea turtles;
b. Physical resources and conditions, including air quality, water quality, coastal habitats, benthic habitats, and pelagic habitats; and
c. Socioeconomic and cultural resources, including commercial fishing, recreational fishing, demographics, employment, economics, environmental justice, land use and coastal infrastructure, navigation and vessel traffic, other uses (such as marine minerals, military use, and aviation), recreation and tourism, and scenic and visual resources.
2. The identification of historic properties within the GOM, the potential effects on those historic properties from GOM oil and gas development, and any information that supports identification of historic properties under the NHPA. BOEM also solicits proposed measures to avoid, minimize, or mitigate any adverse effects on historic properties. If any historic properties are identified, a potential effects analysis will be available for public and NHPA consulting party comment in the draft PEIS.
3. Information on other current or planned activities in the GOM, including any mitigation measures, their possible impacts on the alternatives, and the alternatives' possible impacts on those activities.
4. Other information relevant to impacts on the human environment from potential GOM oil and gas development alternatives, including any mitigation measures.
To promote informed decision-making, comments should be as specific as possible and should provide as much detail as necessary to meaningfully and fully inform BOEM of the commenter's position. Comments should explain why the issues raised are important for consideration of the Proposed Action, as well as economic, employment, and other impacts affecting the quality of the human environment.
Bureau of Reclamation, Interior.
Notice of public meeting.
The Bureau of Reclamation is publishing this notice to announce that a Federal Advisory Committee meeting of the Colorado River Basin Salinity Control Advisory Council (Council) will take place. This meeting is open to the public.
The meeting will take place in-person and virtually on the following two days: Tuesday, October 24, 2023, from 1:30 p.m. to approximately 5:00 p.m. (MDT), and Wednesday, October 25, 8:30 a.m. to 10:30 a.m. (MDT).
The in-person meeting will be held at the New Mexico State Capitol Building at 411 S Capitol Street, Santa Fe, New Mexico 87501.
To access the meeting virtually, please contact Clarence Fullard; see
Clarence Fullard, telephone (303) 253-1042; email at
The meeting of the Council is being held under the provisions of the Federal Advisory Committee Act of 1972. The Council was established by the Colorado River Basin Salinity Control Act of 1974 (Pub. L. 93-320) (Act) to receive reports and advise Federal agencies on implementing the Act.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping and countervailing duty orders on sodium gluconate, gluconic acid, and derivative products from China would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Instituted October 2, 2023. To be assured of consideration, the deadline for responses is November 1, 2023. Comments on the adequacy of responses may be filed with the Commission by December 12, 2023.
Lawrence Jones (202-205-3358), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post-employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the
Please note the Secretary's Office will accept only electronic filings at this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 23-5-580, expiration date June 30, 2026. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436.
Those responding to this notice of institution are encouraged, but not required, to visit the USITC's website at
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted a review pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty order on xanthan gum from China would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice
Instituted October 2, 2023. To be assured of consideration, the deadline for responses is November 1, 2023. Comments on the adequacy of responses may be filed with the Commission by December 12, 2023.
Alec Resch (202-708-1448), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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(2) The
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post-employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Charles Smith, Office of the General Counsel, at 202-205-3408.
Please note the Secretary's Office will accept only electronic filings at this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 23-5-581, expiration date June 30, 2026. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436.
Those responding to this notice of institution are encouraged, but not required, to visit the USITC's website at
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty order on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
By order of the Commission.
United States International Trade Commission.
Notice.
September 21, 2023.
Lawrence Jones ((202) 205-3358), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
Effective March 3, 2023, the Commission established a general schedule for the conduct of the final phase of its antidumping duty investigation and countervailing duty investigation on certain freight rail couplers and parts thereof (“FRCs”) from China and Mexico (88 FR 16031, March 15, 2023), following a preliminary determination by the U.S. Department of Commerce (“Commerce”) that imports of FRCs from China were being subsidized by the government of China (88 FR 13425, March 3, 2023), and sold in the United States at less than fair value (“LTFV”) (88 FR 15372, March 13, 2023). Notice of the scheduling of the final phase of the Commission's investigations and of a public hearing held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
Commerce issued final affirmative countervailing and antidumping duty determinations with respect to imports of FRCs from China (88 FR 32184, May 19 2023; 88 FR 34485, May 30, 2023). The Commission subsequently issued Its final determination that an industry in the United States was materially injured by reason of imports of FRCs from China, provided for in subheadings 8607.30.10 and 7326.90.86 of the Harmonized Tariff Schedule of the United States, that have been found by Commerce to be sold in the United States at LTFV and subsidized by the government of China (88 FR 43398, June 7, 2023).
Commerce issued a final affirmative antidumping duty determination with respect to imports of FRCs from Mexico (88 FR 65153, September 21, 2023). Accordingly, the Commission currently is issuing a supplemental schedule for its antidumping duty investigation on imports of FRCs from Mexico.
This supplemental schedule is as follows: the deadline for filing supplemental party comments on Commerce's final antidumping duty determination is 5:15 p.m. on October 4, 2023. Supplemental party comments may address only Commerce's final antidumping duty determination regarding imports of FRCs from Mexico. These supplemental final comments may not contain new factual information and may not exceed five (5) pages in length. The supplemental staff report in the final phase of the current investigation will be placed in the nonpublic record on October 16, 2023, and a public version will be issued thereafter.
For further information concerning this proceeding see the Commission's notice cited above and the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigation must be served on all other parties to the investigation (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
Please note the Secretary's Office will accept only electronic filings during this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of an expedited review pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping duty order on folding gift boxes from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
September 5, 2023.
(Alexis Yim 202-708-1446), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
In accordance with §§ 201.16(c) and 207.3 of the rules, each document filed by a party to the review must be served on all other parties to the review (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
By order of the Commission.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-day notice.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection was previously published in the
Comments are encouraged and will be accepted for 30 days until November 1, 2023.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact: Melissa Mason, either by mail at mailing address, or by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Written comments and recommendations for this information collection should be submitted within 30 days of the publication of this notice on the following website
DOJ seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOJ notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Overview of this information collection:
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If additional information is required, contact: Darwin Arceo, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, United States Department of Justice, Two Constitution Square, 145 N Street NE, 4W-218 Washington, DC 20530.
Pursuant to the authority contained in section 512 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1142, the 219th open meeting of the Advisory Council on Employee Welfare and Pension Benefit Plans (also known as the ERISA Advisory Council) will be held via a teleconference on Monday, October 30, 2023.
The meeting will begin at 12:00 p.m. and end at approximately 6:00 p.m. The purpose of the open meeting is for the members of the ERISA Advisory Council to discuss potential recommendations for the Secretary of Labor on the issues of: (1) Long-Term Disability Benefits and Mental Health Disparity, and (2) Recordkeeping in the Electronic Age. Descriptions of the 2023 study topics are available on the ERISA Advisory Council's web page at
Instructions for public access to the teleconference meeting will be available on the ERISA Advisory Council's web page at
Organizations or members of the public wishing to submit a written statement on the 2023 study topics may do so on or before Monday, October 23, 2023, to Christine Donahue, Executive Secretary, ERISA Advisory Council. Statements should be transmitted electronically as an email attachment in text or pdf format to
Individuals or representatives of organizations interested in addressing the ERISA Advisory Council at the public meeting should forward their requests to the Executive Secretary on or before Monday, October 23, 2023, via email to
Individuals who need special accommodations should contact the Executive Secretary on or before Monday, October 23, 2023, via email to
For more information about the meeting, contact the Executive Secretary at the address or telephone number above.
Employee Benefits Security Administration, Labor.
Notice of exemption.
This document contains a notice of exemption issued by the Department of Labor (the Department) from certain prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974. The exemption permits: (1) the acquisition, on August 3, 2020, by the Occidental Petroleum Corporation Savings Plan (the Oxy Plan) and the Anadarko Employee Savings Plan (the Anadarko Plan; together, the Plans), of stock warrants (the Warrants) issued by Occidental Petroleum Company, a party in interest with respect to the Plans; and (2) the holding of the Warrants.
This exemption will be in effect for the period beginning August 3, 2020, through August 12, 2027.
Mrs. Blessed Chuksorji-Keefe of the Department at (202) 693-8567. (This is not a toll-free number).
The Plans requested an exemption pursuant to ERISA Section 408(a) and supplemented the request with certain additional information that has been made a part of the public record.
Based on the record, the Department has determined to grant the proposed exemption. This exemption provides only the relief specified herein. It provides no relief from violations of any law other than the prohibited transaction provisions of ERISA, as expressly stated herein.
The Department makes the requisite findings under ERISA Section 408(a) based on the Applicants' adherence to all the conditions of the exemption. Accordingly, affected parties should be aware that the conditions incorporated in this exemption are, taken individually and as a whole, necessary for the Department to grant the relief requested by the Applicants. Absent these conditions, the Department would not have granted this exemption.
As discussed in greater detail in the proposed exemption, the Applicants are: (a) the Occidental Petroleum Corporation (Occidental or Oxy); (b) the Anadarko Petroleum Corporation (Anadarko), a wholly owned subsidiary of Oxy; and (c) the Plans, which are sponsored by Oxy and Anadarko, respectively.
On June 26, 2020, Oxy announced that its Board of Directors had declared a distribution of Warrants to holders of Oxy common stock on the record date (Record Date) of July 6, 2020. The Warrants have a seven-year term and expire on August 3, 2027. Recipients may exercise the Warrants to purchase additional shares of Oxy common stock at the exercise price of $22 per share or sell the Warrants at the prevailing market price on the NYSE.
On August 3, 2020, Oxy distributed the Warrants. Stockholders of record, including the Plans, received 1/8th (12.5%) of a Warrant for each share of Oxy common stock they held as of July 6, 2020. Each Oxy common stockholder, including the Plans, received the same proportionate number of Warrants based on the number of shares of Oxy common stock held as of July 6, 2020. The Plans and the other stockholders received the Warrants automatically, without any action on their part, because of Oxy's unilateral and independent corporate act.
The Oxy Plan received 1,476,172 Warrants based on its holding of 11,809,376 shares of Oxy common stock. The Anadarko Plan received 26,601 Warrants based on its holding of 212,813 shares of Oxy common stock. Each Plan established a Warrant account to reflect their respective participants' proportionate interest in the Warrants. All stockholders, including each Plan participant, received 1/8th of a Warrant for every share of common stock of
The Applicants represent that all decisions regarding whether to hold, sell, or exercise the Warrants by the Plans were made by Fiduciary Counselors Inc. (FCI), a qualified independent fiduciary within the meaning of 29 CFR 2570.31(j), while acting solely in the interests of the Plans and their participants and beneficiaries and in accordance with the Plans' provisions.
As described in the proposed exemption, FCI sold the Oxy Plan's 1,476,172 Warrants in “blind transactions” on the NYSE over the course of five trading dates (August 6, 7, 10, 11, and 12, 2020) for gross proceeds of $6,332,184.28 which were proportionately allocated to the Plan accounts of the affected participants in the Oxy Stock Fund (and reinvested in such participants' accounts in the Oxy Stock Fund). FCI sold the Anadarko Plan's 26,601 Warrants in “blind transactions” on the NYSE on August 10, 2020, for proceeds of $115,538.88. Because the Anadarko Plan was frozen to new investments, the proceeds from the sale were proportionately credited to the affected participants through the Anadarko Plan's qualified designated investment alternative. At the time of the sales of the Warrants by FCI, a share of Oxy Stock ranged from $15.23 on August 6, 2020 to $14.71 on August 12, 2020. The Warrants had an exercise price of $22.00 per share.
The Applicants requested an exemption to permit the acquisition and holding by the Plans of the Warrants that were issued by Oxy, a party in interest with respect to the Plans. An exemption is necessary because the acquisition and holding of the Warrants by the Plans is prohibited under ERISA and the Code.
On February 9, 2023, the Department published a notice of proposed exemption in the
As discussed below, the Department finds that the favorable terms of the acquisition and holding of the Warrants by the Plans, combined with the protective conditions included in this exemption, are appropriately protective and in the interest of the Plans and their participants to support the granting of this exemption.
In the proposed exemption, the Department invited all interested persons to submit written comments and/or requests for a public hearing with respect to the proposed exemption by March 27, 2023. During the comment period, the Department received nine written comments from seven Plan participants (and a comment from FCI that is part of an email exchange between FCI and one of the aforementioned commenters, a retired Plan participant). The Department did not receive a request for a public hearing from any Plan participant.
One Plan participant submitted three of the nine comments, in which they expressed their opposition to the sale of the Warrants from the participant's 401(k) account. The Plan participant insisted that they “had no intention of selling these [W]arrants as they had a 7-year time value,” and demanded that the Warrants be returned to his account. After it received this comment, the Department requested that the Plans' representative submit a response to these three comments to the Department. The Department also requested that FCI contact the Plan participant directly to address his concerns.
Four comments were submitted anonymously. Six commenters, including the four anonymous commenters, either expressed their opinions about whether the proposed exemption should be granted, or they sought clarification regarding how the exemption would affect their benefits.
The complete application files (D-12032 and D-12033) are available for public inspection in the Public Disclosure Room of the Employee Benefits Security Administration, Room N-1515, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210. For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the proposed exemption.
Accordingly, after considering the entire record developed in connection with the Applicants' exemption application, the Department has determined to grant the exemption described below.
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under ERISA Section 408(a) does not relieve a fiduciary or other party in interest from certain requirements of other ERISA provisions, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of ERISA Section 404, which, among other things, require a fiduciary to discharge his or her duties respecting the plan solely in the interest of the plan's participants and beneficiaries and in a prudent fashion in accordance with ERISA Section 404(a)(1)(B).
(2) As required by ERISA Section 408(a), the Department hereby finds that the exemption is: (a) administratively feasible; (b) in the interests of affected plans and of their participants and beneficiaries; and (c) protective of the rights of participants and beneficiaries of the plans.
(3) This exemption is supplemental to and not in derogation of any other ERISA provisions, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive to determining whether the transaction is in fact a prohibited transaction.
(4) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describe all material terms of the transactions that are the subject of the exemption.
Accordingly, the Department grants the following exemption under the authority of ERISA Section 408(a)in accordance with the procedures set forth in 29 CFR part 2570, subpart B (76 FR 66637, 66644, October 27, 2011):
The restrictions of ERISA Sections 406(a)(1)(E), 406(a)(2) and 407(a)(1)(A), does not apply to the acquisition and holding by the Plans of Warrants, issued by Oxy, provided the conditions set forth in Section II below have been met.
(a) The Warrants were issued by Oxy to all Oxy common stockholders, including the Plans;
(b) All Oxy common stockholders, including the Plans, were treated in the same manner with respect to the acquisition and holding of the Warrants;
(c) All Oxy common stockholders, including the Plans, were issued the same proportionate number of Warrants based on the number of shares of Oxy common stock held by such stockholder;
(d) The Plans' acquisition of the Warrants was a result of a unilateral and independent corporate act of Oxy without any participation by the Plans;
(e) All decisions regarding whether to hold, sell, or exercise the Warrants by the Plans were made by FCI while acting solely in the interests of the Plans and their participants and beneficiaries and in accordance with the Plan's provisions;
(f) FCI determined that it was protective and in the interests of the Plans and their participants and beneficiaries to sell all of the Warrants received by the Plans in blind transactions on the NYSE;
(g) FCI will provide a written statement to the Department demonstrating that the covered transactions have met all of the exemption conditions within 90 days after the exemption is granted;
(h) No brokerage fees, commissions, subscription fees, or other charges were paid by the Plans to Oxy with respect to the acquisition and holding of the Warrants, nor were they paid to any affiliate of Oxy or FCI with respect to the sale of the Warrants;
(i) No party related to this exemption application has or will indemnify FCI, in whole or in part, for negligence and/or any violation of state or federal law that may be attributable to FCI in performing its duties overseeing the transaction. In addition, no contract or instrument may purport to waive FCI's liability under state or federal law for any such violations; and
(j) Each Plan participant received the entire amount they were due with respect to the acquisition of the Warrants and the sale of the Warrants.
Employee Benefits Security Administration, Labor.
Notice of exemption.
This document contains a notice of an exemption issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act). The exemption permits certain transactions arising from credit arrangements involving Mitsubishi UFJ Trust and Banking Corporation (the Applicant or MUTB) and investment funds in which employee benefit plans invest.
This exemption will be in effect on the date that this grant notice is published in the
Mr. Frank Gonzalez of the Department at (202) 693-8553. (This is not a toll-free number.)
The Applicant requested an exemption pursuant to ERISA Section 408(a) and supplemented the request with certain additional information (collectively, this information is referred to as “the Initial Application”).
Based on the record, the Department has determined to grant the Proposed Exemption. This exemption provides only the relief specified herein. It provides no relief from violations of any law other than the prohibited transaction provisions of ERISA, as expressly stated herein.
The Department makes the requisite findings under ERISA Section 408(a) based on the Applicants' adherence to all the conditions of the exemption. Accordingly, affected parties should be aware that the conditions incorporated in this exemption are, taken individually and as a whole, necessary for the Department to grant the relief requested by the Applicants. Absent these conditions, the Department would not have granted this exemption.
The Applicant seeks to provide secured revolving lines of credit (a Credit Facility or Credit Facilities) for certain funds (Fund(s)). The Funds invest directly or indirectly in private equity investments, real estate investments, non-real estate operating company ventures, or other investments. The Funds are formed and operated through the Funds' organizing and governing documents (Fund Agreements).
A Credit Facility provides a Fund with access to direct or indirect borrowing, letters of credit and similar forms of credit arrangements without the Fund having to seek permanent or interim financing before making an investment. The Credit Facility eliminates the delay that a Fund will encounter in obtaining capital if it makes capital calls to Investors. Covered plans may invest in the Funds, as may endowment funds, private or public persons, insurance companies, public or private corporations, trusts, and individuals (collectively, Investors).
The Credit Facility's collateral security includes the right to make capital calls on Investors, including in the event of a Fund's default, and apply the proceeds to the repayment of the Fund's obligations, a secured interest in an account (Collateral Account) the Fund maintains in a financial institution into which capital contributions can be made, and the Investor's acknowledgement of the Fund's assignment of rights to the Lender (Investor Consent). The Investor Consent may include an agreement between the Investor and MUTB in which the Investor: (1) acknowledges the Credit Facility, including, amongst others, that the Investor will make capital contributions only to the Collateral Account (except in limited circumstances); and (2) will make Capital Contributions to the Fund without setoff, reduction, counterclaim, or defense of any kind or nature, for the purpose of repayment of the Credit Facility (Agreement to Fund). The Agreement to Fund does not limit the Investor's right to assert a claim or defense in a separate action against the Fund, and keeps the risk of the Fund mismanagement or fraud between the Investors and the Funds.
The Department invited all interested persons to submit written comments and/or requests for a public hearing with respect to the Proposed Exemption. On August 12, 2021, the Department received one written comment, which came from the Applicant, and raised a number of issues regarding the accuracy of the Proposed Exemption.
On April 1, 2022, the Applicant submitted additional information to the Department. The material issues that the Applicant raised and the material information it submitted to the Department are discussed below.
As a general comment, the Applicant states that its primary goal is to obtain a credit facility exemption that is substantially similar (if not identical in all material respects) to the Prior Credit Facility Exemptions,
The Department notes that the existence of previously issued administrative exemptions is not determinative of whether the Department will propose future exemption applications with the same or similar facts, or whether a proposed exemption will contain the same conditions as a similar previously issued administrative exemption. The Department has the sole authority to issue exemptions and is not bound by the facts or conditions of prior exemptions in making determinations with respect to an exemption application. This policy allows the Department to retain sufficient flexibility to grant exemptions that are appropriate in an ever-changing business, legislative, and regulatory policy environment.
Section I(e) states that: “A Covered Plan's execution of an agreement (the Investor Consent) consenting to the assignment by the Fund and General Partner (or Manager) to Mitsubishi Bank, as sole Lender or Agent, of their right to make Capital Calls.”
“(e) The execution by a Covered Plan of an agreement (“Investor Consent”) consenting to the assignment by the Fund and General Partner (or Manager) to Mitsubishi Bank, as sole Lender or
Section III(i) of the Proposed Exemption states that: “The Funds will not hold `plan assets' for purposes of ERISA or Code section 4975.”
According to the Applicant, to condition the availability of the exemption on a condition for which the Applicant has no control, and for which the condition has no impact on the relationship between the Covered Plan and the Applicant, would be arbitrary and lead to inequitable consequences to the Covered Plan and the Applicant. Although the Prior Credit Facility Exemptions note that the Funds typically do not hold “plan assets,” the operative language in those exemptions does not expressly make this status a condition. Requiring that the Funds will not hold “plan assets” for purposes of ERISA or Code section 4975 would place the Applicant at a significant competitive disadvantage because Fund Managers of Plan Asset Entities would seek to borrow from Agent/Lenders that have a less restrictive exemption that does not discriminate against them based on their “plan asset” status.
Section III(j) of the Proposed Exemption states that: “Any service covered by the exemption must be necessary for the establishment or operation of the plan, and no more than reasonable compensation may be paid.”
The Applicant states that while it is possible that a Covered Plan Investor may inquire about the status of, or request information from the Applicant or a Lender, with respect to a credit facility, including outstanding obligations thereunder, these communications would be relayed by the Covered Plan Investors through the Fund to the Applicant/Lenders, and not made directly.
The Applicant represents that these would be “incidental interactions” that would not cause the Applicant or a Lender, to be a “covered service provider” for purposes of ERISA Section 408(b)(2), particularly where no compensation is being paid for any services. The Applicant states that, to the extent there is any “service” relationship between the Applicant/Lenders and the Covered Plans, it would be appropriate for the Applicant to rely on ERISA Section 408(b)(2) and not the credit facility exemption.
Although the Department has not made any determination regarding whether any transaction permitted by this exemption falls within the scope of ERISA Section 408(b)(2), this exemption is not intended to provide exemptive relief for any transaction that is within the scope of ERISA Section 408(b)(2). Accordingly, the Department has decided not to delete the condition as requested. However, based on the Applicant's representations, the Department is revising the condition as follows: “The relief in this exemption does not extend to any transaction that is within the scope of ERISA Section 408(b)(2).”
Section III(k) of the Proposed Exemption states that: “No Lender will have any influence, authority, or control over a Client Plan's investment in the Fund.”
For greater consistency with the Department's most recent individual administrative exemptions, the Department has revised condition (k) of the Proposed Exemption as follows: “All of the material facts and representations set forth in the Summary of Facts and Representations are true and accurate. If there is any material change in a transaction covered by the exemption, or in a material fact or representation described by the Applicant in the application, the exemption will cease to apply as of the date of the change.”
After considering the entire record developed in connection with the Applicant's exemption application, along with the Applicant's comment letter and the additional factual information it submitted subsequent to the Proposed Exemption, the Department has determined to grant the exemption described below.
The complete application file (D-12003) is available for public inspection in the Public Disclosure Room of the Employee Benefits Security Administration, Room N-1515, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210. For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published on June 28, 2021, at 86 FR 34048.
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under ERISA Section 408(a) does not relieve a fiduciary or other party in interest from certain requirements of other ERISA provisions, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of ERISA Section 404, which, among other things, require a fiduciary to discharge their duties respecting the plan solely in the interest of the plan's participants and beneficiaries and in a prudent fashion in accordance with ERISA Section 404(a)(1)(B).
(2) As required by ERISA Section 408(a), the Department hereby finds that the exemption is (1) administratively feasible, (2) in the interests of affected plans and of their participants and beneficiaries, and (3) protective of the rights of participants and beneficiaries of such plans;
(3) The exemption is supplemental to, and not in derogation of, any other ERISA provisions, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of determining whether the transaction is in fact a prohibited transaction; and
(4) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describe all material terms of the transaction that are the subject of the exemption.
Accordingly, the following exemption is granted under the authority of ERISA Section 408(a) and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (76 FR 66637, 66644, October 27, 2011):
The restrictions of ERISA Sections 406(a)(1)(A)-(D), and the sanctions resulting from the application of Code Section 4975, by reason of Code Sections 4975(c)(l)(A)-(D), shall not apply to:
(a) The granting by the Funds to Mitsubishi UFJ Trust and Banking Corporation (Mitsubishi Bank), as an agent (Agent) for one or more financial institutions (Lender(s)), which may include, without limitation, Mitsubishi Bank) or as sole Lender, that will fund a credit facility (Credit Facility) providing credit to certain investment funds (Fund(s)), of a security interest in and lien on the capital commitments (Capital Commitments), reserve amounts, and capital contributions (Capital Contributions) of certain investors (Investors) that are employee benefit plans (Covered Plan(s), as defined in Section II(a)), investing in the Fund;
(b) Any Fund's collateral assignment and pledge to Mitsubishi Bank, as sole Lender or Agent, of the Fund's security interest in an Investor Covered Plan's equity interest in such Fund;
(c) The Fund's grant to Mitsubishi Bank, as sole Lender or Agent, of a security interest in a collateral account (Collateral Account) to which all Capital Contributions in the Fund will be deposited when paid (except in certain limited circumstances that do not involve Covered Plans);
(d) The granting by the Fund and/or its general partner (General Partner) or manager (Manager) to Mitsubishi Bank, as sole Lender or Agent, of its right to make calls on Covered Plan Investors for Capital Contributions (the Capital Call), which shall be in cash, under the operative Fund Agreements (as defined in Section II(d)), enforce the Capital Calls, collect the Capital Contributions, and apply them to any amount due under the Credit Facility; and
(e) The execution by a Covered Plan of an agreement (“Investor Consent”) consenting to the assignment by the Fund and General Partner (or Manager) to Mitsubishi Bank, as sole Lender or the Agent, of their right to make Capital Calls, which may contain, among other things: (i) an acknowledgment of the Covered Plan's obligation to deliver the Covered Plan's financial information statements to Mitsubishi Bank, as sole Lender or the Agent; (ii) an acknowledgment of the Covered Plan's unpaid and owing capital commitment amount and the Covered Plan's obligation to make Capital Contributions (up to its unfunded Capital
(a) The terms “Covered Plan” or “Covered Plans” means an investor in a Fund (as defined below) that is an employee benefit plan, as defined in ERISA Section 3(3) and that is covered by Title I, Part 4 of ERISA, and/or a plan defined in Code Section 4975, that satisfies the conditions set forth herein in Section II.
(b) The terms “Covered Transaction” or “Covered Transactions” mean any combination of transactions described in Section I(a) through (d), in conjunction with the Investor Consent described in Section I(e).
(c) The terms “Fund” or “Funds” means an investment or venture capital fund (organized as a corporation, limited partnership, limited liability company, or another business entity authorized by applicable law) in which one or more investors invest, including employee benefit plans or special purpose entities holding “plan assets” subject to ERISA, as described herein, by making capital contributions in cash to such Fund, pursuant to specific Capital Commitments as established by the Fund Agreement(s) and other operative documents executed by the parties, for purposes of making certain real estate investments (including real estate-related investments, such as venture capital investments) or non-real estate investments (including, without limitation, assets and/or interests relating to infrastructure, maritime, energy, etc.).
Each Covered Plan investing in such special purpose entity must satisfy the conditions set forth herein in Section III. The term “Fund” includes an entity created by the Fund that may borrow, or receive, funds from the Credit Facility, provided that such entity is considered an affiliate of the Fund as a subsidiary or other controlled entity.
(d) The terms “Fund Agreement” or “Fund Agreements” mean the written agreements under which a Fund (as defined above) is formed (such as a limited partnership agreement, a limited liability company agreement, trust agreement, or articles of incorporation, together with ancillary related agreements, such as subscription agreements) that obligate each Investor to make cash contributions of capital with respect to Capital Commitments, upon receipt of a call for Capital Contributions.
(e) The term “officer” means a president, any vice president in charge of a principal business unit, division or function (such as sales, administration or finance), or any other officer who performs a policy-making function for the entity.
(f) The term “Mitsubishi Bank” means Mitsubishi UFJ Trust and Banking Corporation, which is a foreign banking corporation organized under the laws of Japan, and its indirectly wholly-owned subsidiary named MUFG Alternative Fund Services (Cayman) Limited, an ordinary resident company incorporated and existing under the laws of the Cayman Islands. This exemption is intended to cover Mitsubishi Bank, and all of its current and future branches.
(g) For purposes of determining whether a fiduciary is not included among, is independent of, and unaffiliated with, a Fund, the term Fund shall be deemed, as appropriate, to include the governing entity of the Fund, or a member of the governing body of the Fund, as appropriate,
(i) The fiduciary is not, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with such Lender or Fund;
(ii) The fiduciary is not an officer, director, employee or relative of, or partner in, such Lender or Fund; and
(iii) No officer, director, highly-compensated employee (within the meaning of Code Section 4975(e)(2)(H)), or partner of the Fund, or any officer, director or highly-compensated employee, or partner of the Lender who is involved in the transactions described in Section I of the exemption request, is also an officer, director, highly-compensated employee, or partner of the fiduciary. However, if such individual is a director of the Lender, and if they abstain from participation in, and is not otherwise involved with, the decision made by the Covered Plan to invest in the Fund, then this condition shall be deemed satisfied.
(a) The decision to invest in the Fund on behalf of each Covered Plan and to execute an Investor Consent in favor of Mitsubishi Bank, as sole Lender or Agent, is made by fiduciaries of the Covered Plan that are not included among and are independent of and unaffiliated with, the Lenders (including Mitsubishi Bank) and the Fund;
(b) The transaction is on terms that are no less favorable to the Covered Plans than those which the Covered Plans could obtain in arm's-length transactions with unrelated parties;
(c) At the time of the execution of an Investor Consent, the Covered Plan has assets of not less than $100 million. In the case of multiple plans maintained by the same employer, or by members of a controlled group of corporations (within the meaning of Code Section 4l4(b)), or members of a group of trades or businesses under common control (within the meaning of Code Section 414(c)) (hereafter, referred to as “members of a controlled group”), whose assets are invested on a commingled basis (
(d) Not more than 5% of the assets of any Covered Plan, measured at the time of the execution of an Investor Consent, is invested in the Fund. In the case of multiple plans maintained by the same employer, or by members of a controlled group, whose assets are invested on a commingled basis (
(e) Neither Mitsubishi Bank, nor any Lender, has discretionary authority or
(f) Upon request, the Covered Plan fiduciaries must receive from Mitsubishi Bank, a copy of this notice of proposed exemption and a copy of the final exemption, as published in the
(g) Mitsubishi Bank receives from the Covered Plan fiduciaries a written representation, or a written authorization, that permits Mitsubishi Bank to rely on a written representation made to the Fund, that the conditions set forth above in Section III(a), (c), and (d) are satisfied for such transaction with respect to the Covered Plan for which they are fiduciaries;
(h) No Covered Transaction is part of an arrangement, agreement or understanding, designed to benefit a party in interest or disqualified person with respect to a Covered Plan;
(i) In the event that a Fund's underlying assets constitute plan assets for purposes of the Department's Plan Assets Regulation, Mitsubishi Bank or any Lender will not enter into a Credit Facility with such Fund unless the Fund is managed by a QPAM, and the extension of credit under the Credit Facility to the Fund and the Fund's pledge of collateral would be covered by the QPAM Exemption or another applicable exemption;
(j) The relief in this exemption does not extend to any transaction that is within the scope of ERISA Section 408(b)(2); and
(k) All of the material facts and representations set forth in the Summary of Facts and Representations are true and accurate. If there is any material change in a transaction covered by the exemption, or in a material fact or representation described by the Applicant in the application, the exemption will cease to apply as of the date of the change.
Employment and Training Administration, Labor.
Notice of a virtual WIAC meeting November 6, 2023.
Notice is hereby given that the Workforce Information Advisory Council (WIAC or Advisory Council) will meet virtually November 6, 2023. Information for public attendance at the virtual meetings will be posted at
The meeting will take place November 6, 2023. The meeting will begin at 2 p.m. EST and conclude at approximately 4 p.m. EST. Public statements and requests for special accommodations or to address the Advisory Council must be received by October 23, 2023.
Information for public attendance at the virtual meetings will be posted at
Steven Rietzke, Chief, Division of National Programs, Tools, and Technical Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-4510, 200 Constitution Ave. NW, Washington, DC 20210; Telephone: 202-693-3912; Email:
The Department of Labor anticipates the WIAC will accomplish its objectives by: (1) studying workforce and labor market information issues; (2) seeking and sharing information on innovative approaches, new technologies, and data to inform employment, skills training, and workforce and economic development decision making and policy; and (3) advising the Secretary on how the workforce and labor market information system can best support workforce development, planning, and program development. Additional information is available at
The Advisory Council will open the floor for public comment at approximately 3:30 p.m. EST for
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Office of the Assistant Secretary for Administration and Management (OASAM)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before November 1, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Nicole Bouchet by telephone at 202-693-0213, or by email at
. This information collection activity will be used to garner customer and stakeholder feedback in accordance with the Administration's commitment to improving service delivery. The feedback sought is information that provides useful insights on perceptions and opinions, but are not used as statistical surveys that yield quantitative results that can be generalized to the population of study. These collections will: Provide insights into customer or stakeholder perceptions, experiences, and expectations; provide an early warning of issues with service; focus attention on areas where communication, training, or changes, in operations might improve delivery of products or services; provide ongoing, collaborative, and actionable communications between the DOL and its customers and stakeholders. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Notice.
In accordance with the Paperwork Reduction Act (PRA), the Wage and Hour Division (WHD) is providing notice to the public that the WHD sponsored information collection request (ICR) titled, “Davis-Bacon Certified Payroll,” has been approved by the Office of Management and Budget (OMB). WHD is notifying the public that the information collection has been revised and extended effective immediately through September 30, 2026.
The OMB approval of the revision of this information collection is effective immediately with an expiration date of September 30, 2026.
Robert Waterman, Division of Regulations, Legislation, and Interpretation, Wage and Hour, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number) or by sending an email to
The Department of Labor submitted a proposed revision to the information collection titled: Davis-Bacon Certified Payroll (OMB Control Number 1235-0008), in conjunction with a proposed rule published in the
Section (k) of 5 CFR 1320.11, “Clearance of Collections of Information in Proposed Rules” states, “After receipt of notification of OMB's approval, instruction to make a substantive or material change to, disapproval of a collection of information, or failure to act, the agency shall publish a notice in the
Millennium Challenge Corporation
Notice.
In accordance with the requirements of the Federal Advisory Committee Act, the Millennium Challenge Corporation (MCC) Advisory Council was established as a discretionary advisory committee on July 14, 2016. Its charter was most recently renewed for a fourth term on July 7, 2022. The MCC Advisory Council serves MCC solely in an advisory capacity and provides insight regarding innovations in infrastructure, technology, and sustainability; perceived risks and opportunities in MCC partner countries; new financing mechanisms for developing country contexts; and shared value approaches. The MCC Advisory Council provides a platform for systematic engagement with the private sector and other external stakeholders and contributes to MCC's mission—to reduce poverty through sustainable economic growth.
Wednesday, October 25, 2023, from 8:30 a.m.-12:00 p.m. EDT.
The meeting will be held in a hybrid format, both in-person at 1099 14th Street NW, Suite 700, Washington, DC 20005, and via conference call.
Email
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Earth Science Advisory Committee (ESAC). This Committee functions in an advisory capacity to the Director, Earth Science Division, in the NASA Science Mission Directorate. The meeting will be held for the purpose of soliciting, from the science community and other persons, scientific and technical information relevant to program planning.
Thursday, October 19, 2023, 1 p.m.-3:30 p.m., eastern time.
KarShelia Kinard, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-2355 or
This meeting will be open to the public telephonically and by WebEx. You must use a touch-tone phone to participate in this meeting. Any interested person may dial +1-415-527-5035 United States Toll+1-312-500-3163 United States Toll. Access code: 276 120 37516, to participate in this meeting by telephone.
The WebEx link is:
The agenda for the meeting includes the following topics:
—Earth Science Program Annual Performance Review According to the Government Performance and Results Act Modernization Act
—Final Report of the ESAC Subcommittee Unidentified Anomalous Phenomena (UAP) Independent Study Team.
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
National Science Foundation.
Notice of permit applications received.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act in the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by November 1, 2023. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Office of Polar Programs, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, Virginia 22314 or
Andrew Titmus, ACA Permit Officer, at the above address, 703-292-4479.
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541, 45 CFR 671, as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas as requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
Antarctica Peninsula Region, Palmer Station area; Booth Island, and Petermann Island.
November 24, 2023-March 31, 2028.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, NRC Form 64, “Travel Voucher.”
Submit comments by December 1, 2023. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David C. Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2023-0104 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility? Please explain your answer.
2. Is the estimate of the burden of the information collection accurate? Please explain your answer.
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Weeks of October 2, 9, 16, 23, 30, November 6, 2023. The schedule for Commission meetings is subject to change on short notice. The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Public.
Members of the public may request to receive the information in these notices electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555, at 301-415-1969, or by email at
There are no meetings scheduled for the week of October 2, 2023.
There are no meetings scheduled for the week of October 9, 2023.
There are no meetings scheduled for the week of October 23, 2023.
There are no meetings scheduled for the week of November 6, 2023.
For more information or to verify the status of meetings, contact Wesley Held at 301-287-3591 or via email at
The NRC is holding the meetings under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, “Material Control and Accounting of Special Nuclear Material.”
Submit comments by December 1, 2023. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David C. Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2023-0099 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility? Please explain your answer.
2. Is the estimate of the burden of the information collection accurate? Please explain your answer.
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Atomic Safety and Licensing Board, Nuclear Regulatory Commission.
This proceeding concerns the Nuclear Regulatory Commission (NRC) Staff's August 15, 2023 denial of Homestake Mining Company of California's (HMC) December 10, 2020, license amendment application to make changes to the monitoring station configuration at HMC's Grants, New Mexico reclamation project site.
In light of the foregoing, a hearing will be conducted in this proceeding at a date to be determined. The hearing will be governed by the informal hearing procedures set forth in 10 CFR part 2, subparts C and L, 10 CFR 2.300-2.390, 2.1200-2.1213.
For the Atomic Safety and Licensing Board.
Rockville, Maryland.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern Competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
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This Notice will be published in the
On August 8, 2023, ICE Clear Europe Limited (“ICE Clear Europe”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-ICEEU-2023-022 pursuant to Section 19(b) of the Securities Exchange Act of 1934 (“Exchange Act”)
Section 19(b)(2) of the Exchange Act
In order to provide the Commission with sufficient time to consider the Proposed Rule Change, the Commission finds that it is appropriate to designate a longer period within which to take action on the Proposed Rule Change.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Exchange Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 4, 2023, Cboe BZX Exchange, Inc. (“BZX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend Exchange Rule 404, Series of Option Contracts Open for Trading.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 404, Series of Option Contracts Open for Trading. Specifically, the Exchange proposes to adopt new Interpretations and Policies .12 to Rule 404 to implement a new strike interval program for stocks that are priced less than $2.50 and have an average daily trading volume of at least 1,000,000 shares per day for the three (3) preceding calendar months. The Exchange also proposes to amend the table in Interpretations and Policies .11 of Rule 404 to harmonize the table to the propose change.
Currently, Exchange Rule 404, Series of Option Contracts Open for Trading, describes the process and procedures for listing and trading series of options
At this time, the Exchange proposes to adopt a new strike interval program for underlying stocks that are not in the aforementioned $0.50 Strike Program (or the Short Term Option Series Program)
To be eligible for the inclusion in the Low Priced Stock Strike Price Interval Program, an underlying stock must (i) close below $2.50 in its primary market on the previous trading day; and (ii) have an average daily trading volume of at least 1,000,000 shares per day for the three (3) preceding calendar months. The Exchange notes that there is no limit to the number of classes that will be eligible for inclusion in the proposed program, provided, of course, that the underlying stocks satisfy both the price and average daily trading volume requirements of the proposed program.
The Exchange also proposes that after a stock is added to the Low Priced Stock Strike Price Interval Program, the Exchange may list $0.50 strike price intervals from $0.50 up to $2.00.
The Exchange's proposal addresses a gap in strike coverage for low priced stocks. The $0.50 Strike Program considers stocks that close below $5.00 and limits the number of option classes listed to no more than 20 individual stocks (provided that the open interest criteria is also satisfied). Whereas, the Exchange's proposal has a narrower focus, with respect to the underlying's stock price, and is targeted to those stocks that close below $2.50 and does not limit the number of stocks that may participate in the program (provided that the average daily trading volume is also satisfied). The Exchange does not believe that any market disruptions will be encountered with the addition of these new strikes. The Exchange represents that it has the necessary capacity and surveillance programs in place to support and properly monitor trading in the proposed Low Priced Stock Strike Price Interval Program.
The Exchange believes that its average daily trading volume requirement of 1,000,000 shares is a reasonable threshold to ensure adequate liquidity in eligible underlying stocks as it is substantially greater than the thresholds used for listing options on equities, American Depository Receipts, and broad-based indexes. Specifically, underlying securities with respect to which put or call option contracts are approved for listing and trading on the Exchange must meet certain criteria as determined by the Exchange. One of those requirements is that trading volume (in all markets in which the underlying security is traded) has been at least 2,400,000 shares in the preceding twelve (12) months.
Additionally, the Exchange proposes to amend the table in Interpretations and Policies .11 of Rule 404 to insert a new column to harmonize the Exchange's proposal to the strike intervals for Short Term Options Series as described in Interpretations and Policies .02 of Rule 404. The table in Interpretations and Policies .11 is intended to limit the intervals between strikes for multiply listed equity options within the Short Term Options Series program that have an expiration date more than twenty-one days from the listing date. Specifically, the table defines the applicable strike intervals for options on underlying stocks given the closing price on the primary market on the last day of the calendar quarter, and a corresponding average daily volume of the total number of options contracts traded in a given security for the applicable calendar quarter divided by the number of trading days in the applicable calendar quarter.
The Exchange recognizes that its proposal will introduce new strikes in the marketplace and further acknowledges that there has been significant effort undertaken by the industry to curb strike proliferation. This initiative has been spearheaded by the Nasdaq BX who filed an initial proposal focused on the removal, and prevention of the listing, of strikes which are extraneous and do not add value to the marketplace (the “Strike Interval Proposal”).
The Exchange recognizes that its proposal will moderately increase the total number of option series available on the Exchange. However, the Exchange's proposal is designed to only add strikes where there is investor demand
The Exchange does not believe that its proposal contravenes the industry's efforts to curtail unnecessary strikes. The Exchange's proposal is targeted to only underlying stocks that close at less than $2.50 and that also meet the average daily trading volume requirement. Additionally, because the strike increment is $0.50 there are only a total of four strikes that may be listed under the program ($0.50, $1.00, $1.50, and $2.00) for an eligible underlying stock. Finally, if an eligible underlying stock is in another program (
The Exchange further believes that the Options Price Reporting Authority (“OPRA”), has the necessary systems capacity to handle any additional messaging traffic associated with this proposed rule change. The Exchange also believes that Members
The Exchange believes that its proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act,
The Exchange believes its proposal promotes just and equitable principles of trade and removes impediments to and perfects the mechanisms of a free and open market and a national market system as the Exchange has identified a subset of stocks that are trading under $2.50 and do not have meaningful strikes available. For example, on August 9, 2023, symbol SOND closed at $0.50 and had open interest of over 44,000 contracts and an average daily trading volume in the underlying stock of over 1,900,000 shares for the three preceding calendar months.
The Exchange believes its proposal promotes just and equitable principles of trade and removes impediments to and perfects the mechanisms of a free and open market and a national market system and, in general, protects investors and the public interest by adding strikes that improves market quality and satisfies investor demand. The Exchange does not believe that the number of strikes that will be added under the program will negatively impact the market. Additionally, the proposal does not run counter to the efforts undertaken by the industry to curb strike proliferation as that effort focused on the removal and prevention of extraneous strikes where there was no investor demand. The Exchange's proposal requires the satisfaction of an average daily trading volume threshold in addition to the underlying stock closing at a price below $2.50 to be eligible for the program. The Exchange believes that the average daily trading volume threshold of the program ensures that only strikes with investor demand will be listed and fills a gap in strike interval coverage as described above. Further, being that the strike interval is $0.50, there are only a maximum of four strikes that may be added ($0.50, $1.00, $1.50, and $2.00). Therefore, the Exchange does not
The Exchange believes that its average daily trading volume threshold promotes just and equitable principles of trade and removes impediments to and perfects the mechanisms of a free and open market and a national market system and, in general, protects investors and the public interest as it is designed to permit only those stocks with demonstrably high levels of trading activity to participate in the program. The Exchange notes that its average daily trading volume requirement is substantially greater that the average daily trading requirement currently in place on the Exchange for options on equity underlyings,
The Exchange believes that the proposed rule change is consistent with Section 6(b)(1) of the Act, which provides that the Exchange be organized and have the capacity to be able to carry out the purposes of the Act and the rules and regulations thereunder, and the rules of the Exchange. The proposed rule change allows the Exchange to respond to customer demand to provide meaningful strikes for low priced stocks. The Exchange does not believe that the proposed rule would create any capacity issue or negatively affect market functionality. Additionally, the Exchange represents that it has the necessary systems capacity to support the new options series and handle additional messaging traffic associated with this proposed rule change. The Exchange also believes that its Members will not experience any capacity issues as a result of this proposal. In addition, the Exchange represents that it believes that additional strikes for low priced stocks will serve to increase liquidity available as well and improve price efficiency by providing more trading opportunities for all market participants. The Exchange believes that the proposed rule change will benefit investors by giving them increased opportunities to execute their investment and hedging decisions.
Finally, the Exchange believes its proposal is designed to prevent fraudulent and manipulative acts and practices as options may only be listed on underlyings that satisfy the listing requirements of the Exchange as described in Exchange Rule 402, Criteria for Underlying Securities. Specifically, Rule 402 requires that underlying securities for which put or call option contracts are approved for listing and trading on the Exchange must meet the following criteria: (1) the security must be registered and be an “NMS stock” as defined in Rule 600 of Regulation NMS under the Exchange Act; (2) the security shall be characterized by a substantial number of outstanding shares that are widely held and actively traded.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 11, 2023, ICE Clear Europe Limited (“ICE Clear Europe”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-ICEEU-2023-011 pursuant to Section 19(b) of the Securities Exchange Act of 1934 (“Exchange Act”)
Section 19(b)(2) of the Exchange Act
In order to provide the Commission with sufficient time to consider the Proposed Rule Change, the Commission finds that it is appropriate to designate a longer period within which to take action on the Proposed Rule Change.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Exchange Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 21, 2023, Miami International Securities Exchange LLC (“MIAX” or “Exchange”) filed with the Securities and Exchange Commission (the “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to issue an order approving or disapproving the proposed rule change so that it has sufficient time to consider the proposed rule change and the issues raised therein, as well as the comment received. 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 is filing a proposal to amend Exchange Rule 2614, Orders and Order Instructions, Rule 2615, Opening Process for Equity Securities, Rule 2616, Priority of Orders, Rule 2617, Order Execution and Routing, Rule 2622, Limit Up-Limit Down Plan and Trading Halts, and Rule 2623, Short Sales, to make minor, non-substantive edits and clarifying changes to the rule text applicable to MIAX Pearl Equities (“MIAX Pearl Equities”),
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the hierarchical headings in Exchange Rule 2614 as follows: subparagraphs (a)(1)(A)-(J) will be renumbered as (a)(1)(i)-(x); subparagraph (a)(1)(A)(i) will be renumbered as (a)(1)(i)(A); subparagraphs (a)(1)(E)(i)-(ii) will be renumbered as (a)(1)(v)(A)-(B); subparagraphs (a)(1)(I)(i)-(iv) will be renumbered as (a)(1)(ix)(A)-(D); subparagraphs (a)(1)(I)(i)(a)-(c) will be renumbered as (a)(1)(ix)(A)1.-3.; subparagraphs (a)(2)(A)-(F) will be renumbered as (a)(2)(i)-(vi); subparagraphs (a)(3)(A)-(E) will be renumbered as (a)(3)(i)-(v); subparagraphs (a)(3)(A)(i)-(ii) will be renumbered as (a)(3)(i)(A)-(B); subparagraphs (a)(3)(A)(i)(a)-(b) will be renumbered as (a)(3)(i)(A)1.-2.; subparagraphs (a)(3)(A)(ii)(a)-(h) will be renumbered as (a)(3)(i)(B)1.-8.; subparagraphs (c)(2)(A)-(B) will be renumbered as (c)(2)(i)-(ii); subparagraphs (c)(2)(A)(i)-(ii) will be renumbered as (c)(2)(i)(A)-(B); subparagraphs (c)(7)(A)-(D) will be renumbered as (c)(7)(i)-(iv); subparagraph (c)(7)(A)(i) will be renumbered as (c)(7)(i)(A); subparagraphs (c)(7)(B)(i)-(iv) will be renumbered as (c)(7)(ii)(A)-(D); and subparagraphs (c)(7)(B)(i)(1)-(2) will be renumbered as (c)(7)(ii)(A)1.-2.; subparagraphs (c)(7)(B)(iii)(1)-(2) will be renumbered as (c)(7)(ii)(C)1.-2.; subparagraphs (c)(7)(C)(i)-(ii) will be renumbered as (c)(7)(iii)(A)-(B); subparagraphs (c)(8)(A)-(D) will be renumbered as (c)(8)(i)-(iv); subparagraphs (c)(8)(A)(i)-(iii) will be renumbered as (c)(8)(i)(A)-(C); subparagraphs (c)(8)(A)(i)(1)-(2) will be renumbered as (c)(8)(i)(A)1.-2.; subparagraphs (c)(8)(B)(i)-(ii) will be renumbered as (c)(8)(ii)(A)-(B); subparagraphs (d)(1)(A)-(B) will be renumbered as (d)(1)(i)-(ii); subparagraphs (g)(1)(A)-(E) will be renumbered as (g)(1)(i)-(v); and subparagraphs (g)(3)(A)-(E) will be renumbered as (g)(3)(i)-(v).
The Exchange proposes to amend the hierarchical headings in Exchange Rule 2615 as follows: subparagraphs (e)(1)(A)-(B) will be renumbered as (e)(1)(i)-(ii).
The Exchange proposes to amend the hierarchical headings in Exchange Rule 2616 as follows: subparagraphs (a)(2)(A)-(B) will be renumbered as (a)(2)(i)-(ii); subparagraphs (a)(2)(A)(i)-(ii) will be renumbered as (a)(2)(i)(A)-(B); subparagraph (a)(2)(B)(i) will be renumbered as (a)(2)(ii)(A); subparagraphs (a)(3)(A)-(B) will be renumbered as (a)(3)(i)-(ii); and subparagraphs (a)(3)(A)(i)-(ii) will be renumbered as (a)(3)(i)(A)-(B).
The Exchange proposes to amend the hierarchical headings in Exchange Rule 2622 as follows: subparagraphs (e)(1)(A)-(D) will be renumbered as (e)(1)(i)-(iv); subparagraphs (h)(1)(A)-(M) will be renumbered as (h)(1)(i)-(xiii); subparagraphs (h)(1)(A)(i)-(iv) will be renumbered as (h)(1)(i)(A)-(D); subparagraphs (h)(2)(A)-(B) will be renumbered as (h)(2)(i)-(ii); subparagraphs (h)(2)(A)(i)-(iii) will be renumbered as (h)(2)(i)(A)-(C); subparagraphs (h)(2)(A)(i)(a)-(e) will be renumbered as (h)(2)(i)(A)1.-5.; subparagraphs (h)(2)(A)(i)(a)1.-2. will be renumbered as (h)(2)(i)(A)1.a.-b.; subparagraphs (h)(2)(A)(i)(e)1.-4. will be renumbered as (h)(2)(i)(A)5.a.-d.; subparagraph (h)(2)(A)(iii)(a) will be renumbered as (h)(2)(i)(C)1.; subparagraphs (h)(2)(A)(iii)(a)1.-3. will be renumbered as (h)(2)(i)(C)1.a.-c.; subparagraphs (h)(2)(B)(i)-(iii) will be renumbered as (h)(2)(ii)(A)-(C); subparagraph (h)(2)(B)(i)(a) will be renumbered as (h)(2)(ii)(A)1.; subparagraph (h)(2)(B)(ii)(a) will be renumbered as (h)(2)(ii)(B)1.; subparagraphs (h)(3)(A)-(C) will be renumbered as (h)(3)(i)-(iii); subparagraphs (h)(3)(A)(i)-(ii) will be renumbered as (h)(3)(i)(A)-(B); and subparagraphs (h)(3)(C)(i)-(iii) will be renumbered as (h)(3)(iii)(A)-(C).
Next, the Exchange proposes to amend proposed renumbered subparagraph (a)(1)(vi) of Exchange Rule 2614 to replace certain internal cross references to another subparagraph of Exchange Rule 2614 in light of the proposed hierarchical heading changes described above. In particular, the Exchange proposes to amend the cross references contained in proposed renumbered Exchange Rule 2614(a)(1)(vi), that are to subparagraph
(vi) Re-Pricing to Comply with Rule 201 of Regulation SHO. During a Short Sale Period, as defined in Exchange Rule 2614(g)(3)(i), a Limit Order to sell that is designated as short and cannot be executed or displayed on the MIAX Pearl Equities Book at its limit price pursuant to Rule 201 of Regulation SHO will be re-priced to a Permitted Price, as defined in Exchange Rule 2614(g)(3)(i), pursuant to the Short Sale Price Sliding Process, unless the User affirmatively elects to have the order immediately cancelled.
During a Short Sale Period, as defined in Exchange Rule 2614(g)(3)(i), the System will immediately cancel any portion of an incoming Limit Order designated as ISO and short that includes a time-in-force instruction RHO that cannot be executed or displayed at its limit price at the time of entry pursuant to Rule 201 of Regulation SHO.
Next, the Exchange proposes to amend proposed renumbered subparagraphs (a)(1)(ix)(A)1.-3. of Exchange Rule 2614 to replace certain internal cross references to other subparagraphs of Exchange Rule 2614 in light of the hierarchical heading changes described above. In particular, the Exchange proposes to amend the cross references contained in proposed renumbered Exchange Rule 2614(a)(1)(ix)(A) that are to subparagraphs (a) and (b), to now be to subparagraphs 1. and 2., respectively. Accordingly, with all the proposed changes, Exchange Rule 2614(a)(1)(ix)(A)1.-3. will provide as follows:
1. PBO for Limit Orders to buy, the PBB for Limit Orders to sell;
2. if 1. is unavailable, consolidated last sale price disseminated during the Regular Trading Hours on trade date; or
3. if neither 1. or 2. are available, the prior day's Official Closing Price identified as such by the primary listing exchange, adjusted to account for events such as corporate actions and news events.
Next, the Exchange proposes to amend proposed renumbered subparagraph (a)(1)(ix)(C) of Exchange Rule 2614 to replace certain internal cross references to other subparagraphs of Exchange Rule 2614 in light of the hierarchical heading changes described above. In particular, the Exchange proposes to amend the cross references contained in proposed renumbered Exchange Rule 2614 (a)(1)(ix)(C)that are to subparagraphs (a)(1)(I)(i)(a), (b), and (c), to now be to subparagraphs (a)(1)(ix)(A)1., 2., and 3., respectively. Accordingly, with all the proposed changes, Exchange Rule 2614 (a)(1)(ix)(C) will provide as follows:
(C) Applicability. Limit Order Price Protection will be applied when an order is first eligible to trade. A Limit Order entered before the Regular Trading Session that becomes eligible to trade in the Regular Trading Session will become subject to Limit Order Price Protection when the Regular Trading Session begins. Limit Order Price Protection will not be applied if the prices listed under paragraphs (a)(1)(ix)(A)1., 2., or 3. of this Exchange Rule 2614 are unavailable or if the price listed under paragraph (a)(1)(ix)(A)3. is to be applied and a regulatory halt has been declared by the primary listing market during that trading day.
Next, the Exchange proposes to amend proposed renumbered subparagraph (a)(2)(v) of Exchange Rule 2614 to replace certain internal cross references to another subparagraph of Exchange Rule 2614 in light of the hierarchical heading changes described above. In particular, the Exchange proposes to amend the cross references contained in proposed renumbered Exchange Rule 2614 (a)(2)(v) that are to subparagraph (g)(3)(A) to now be to subparagraph (g)(3)(i). Accordingly, with all the proposed changes, Exchange Rule 2614 (a)(2)(v) will provide as follows:
(v) Short Sales. During a Short Sale Period, as defined in Exchange Rule 2614(g)(3)(i), a Market Order to sell that is marked short will be cancelled upon entry if it cannot be executed at a Permitted Price or better, as defined in Exchange Rule 2614(g)(3)(i).
Next, the Exchange proposes to amend proposed renumbered subparagraph (a)(3)(i)(B)6. of Exchange Rule 2614 to replace certain internal cross references to another subparagraph of Exchange Rule 2614 in light of the hierarchical heading changes described above. In particular, the Exchange proposes to amend the cross references contained in proposed renumbered Exchange Rule 2614 (a)(3)(i)(B)6. that are to subparagraph (g)(3)(A) to now be to subparagraph (g)(3)(i). Accordingly, with all the proposed changes, Exchange Rule 2614 (a)(3)(i)(B)6. will provide as follows:
6. Re-Pricing to Comply with Rule 201 of Regulation SHO. During a Short Sale Period, as defined in Exchange Rule 2614(g)(3)(i), a Primary Peg Order to sell that is designated as short and cannot be executed or displayed on the MIAX Pearl Equities Book at its pegged price pursuant to Rule 201 of Regulation SHO will be re-priced multiple times to a Permitted Price, as defined in Exchange Rule 2614(g)(3)(i), pursuant to the Short Sale Price Sliding Process.
Next, the Exchange proposes to amend proposed renumbered subparagraph (a)(3)(ii) of Exchange Rule 2614 to replace a certain internal cross reference to another subparagraph of Exchange Rule 2614 in light of the hierarchical heading changes described above. In particular, the Exchange proposes to amend the cross reference contained in proposed renumbered Exchange Rule 2614 (a)(3)(ii) that is to subparagraph (B), to now be to subparagraph (ii). Accordingly, with all the proposed changes, Exchange Rule 2614 (a)(3)(ii) will provide as follows:
(ii) A Midpoint Peg Order will be accepted but will not be eligible for execution when the PBB and/or PBO is not available. A Primary Peg Order will be accepted but will not be eligible for execution when the PBB or PBO it is pegged to is not available. All Pegged Orders will be accepted but will not be eligible for execution when the PBBO is crossed, and, if instructed by the User, when the PBBO is locked. A Pegged Order that is eligible for execution when the PBBO is locked will be executable at the locking price. A Pegged Order will become eligible for execution and receive a new timestamp when the PBBO uncrosses. A Pegged Order that was not eligible for execution during a locked market will become eligible for execution and receive a new timestamp when the PBBO unlocks. A Primary Peg Order will become eligible for execution and receive a new timestamp when the PBB or PBO it is pegged to becomes available. A Midpoint Peg Order will become eligible for execution and receive a new timestamp when a new midpoint of the PBBO is established. In each of the above cases, pursuant to Exchange Rule 2616, all such Pegged Orders will retain their priority as compared to each other based upon the time priority of such orders immediately prior to being deemed not eligible for execution as set forth in this subparagraph (ii).
Next, the Exchange proposes to amend proposed renumbered subparagraph (c)(8)(iv) of Exchange Rule 2614 to replace a certain internal cross reference to another subparagraph of Exchange Rule 2614 in light of the hierarchical heading changes described above. In particular, the Exchange proposes to amend the cross reference contained in proposed renumbered Exchange Rule 2614 (c)(8)(iv) that is to subparagraph (c)(8)(A)(i) to now be to subparagraph (c)(8)(i)(A). Accordingly, with all the proposed changes, Exchange Rule 2614 (c)(8)(iv) will provide as follows:
(iv) Routing. Any quantity of an order with a Reserve Quantity that is returned unexecuted will join the Reserve Quantity. If there is no Reserve Quantity to join, the returned quantity will be assigned a new time stamp as the Reserve Quantity. In either case, such Reserve Quantity will replenish the Displayed Quantity as provided for in paragraph (c)(8)(i)(A) of this Rule.
Next, the Exchange proposes to amend proposed renumbered subparagraph (e)(2)of Exchange Rule 2615 to replace a certain internal cross
(2) Where neither of the conditions required to establish the price of the Re-Opening Process in paragraph (e)(1)(ii) above have occurred, the equity security may be opened for trading at the discretion of the Exchange. In such case, all orders will be handled in time sequence, beginning with the order with the oldest timestamp, and be placed on the MIAX Pearl Equities Book, cancelled, executed, or routed to away Trading Centers in accordance with the terms of the order.
Next, the Exchange proposes to amend proposed renumbered subparagraph (a)(2)(ii) of Exchange Rule 2616 to replace a certain internal cross reference to another subparagraph of Exchange Rule 2616 in light of the hierarchical heading changes described above. In particular, the Exchange proposes to amend the cross reference contained in proposed renumbered Exchange Rule 2616 (a)(2)(ii) that is to subparagraph (A) to now be to subparagraph (i). Accordingly, with all the proposed changes, Exchange Rule 2616 (a)(2)(ii) will provide as follows:
(ii) For purposes of paragraph (i) above.
Next, the Exchange proposes to amend proposed renumbered subparagraph (e)(2)of Exchange Rule 2622 to replace certain internal cross references to other subparagraphs of Exchange Rule 2622 in light of the hierarchical heading changes described above. In particular, the Exchange proposes to amend the cross references contained in proposed renumbered Exchange Rule 2622(e)(2) that are to subparagraphs (e)(1)(A)-(D) to now be to subparagraphs (e)(1)(i)-(iv). Accordingly, with all the proposed changes, Exchange Rule 2622(e)(2) will provide as follows:
(2) To the extent that an Equity Member participating in a MWCB test is unable to receive and process any of the messages identified in paragraph (e)(1)(i)-(iv) of this Rule, its attestation should notify the Exchange which messages it was unable to process and, if known, why.
Next, the Exchange proposes to amend proposed renumbered subparagraph (h)(2)(i)(A)5.b. of Exchange Rule 2622 to replace certain internal cross references to another subparagraph of Exchange Rule 2622 in light of the hierarchical heading changes described above. In particular, the Exchange proposes to amend the cross references contained in proposed renumbered Exchange Rule 2622 (h)(2)(i)(A)5.b. that are to subparagraph (e) to now be to subparagraph 5. Additionally, the Exchange proposes to amend proposed renumbered subparagraph (h)(2)(i)(A)5.b. of Exchange Rule 2622 to replace a certain internal cross reference to another rule in light of the hierarchical heading changes described above. In particular, the Exchange proposes to amend the cross reference contained in Exchange Rule 2622 (h)(2)(i)(A)5.b. that is to current Exchange Rule 2614(g)(1)(C), to now be to proposed renumbered Exchange Rule 2614(g)(1)(iii). Accordingly, with all the proposed changes, Exchange Rule 2622 (h)(2)(i)(A)5.b. will provide as follows:
b. Limit-Priced Interest. Limit-priced interest will be cancelled if a User has entered instructions not to use the re-pricing process under this paragraph 5. and such interest to buy (sell) is priced above (below) the Upper (Lower) Price Band. If re-pricing is permitted based on a User's instructions, both displayable and non-displayable incoming limit-priced interest to buy (sell) that is priced above (below) the Upper (Lower) Price Band shall be re-priced to the Upper (Lower) Price Band. The System shall re-price resting limit-priced interest to buy (sell) to the Upper (Lower) Price Band if Price Bands move such that the price of resting limit-priced interest to buy (sell) would be above (below) the Upper (Lower) Price Band. If the Price Bands move again and a User has opted into the Exchange's optional multiple price sliding process, as described in Exchange Rule 2614(g)(1)(iii), the System shall reprice such limit-priced interest to the most aggressive permissible price up to the order's limit price. All other displayed and non-displayed limit interest repriced pursuant to this paragraph 5. will remain at its new price unless the Price Bands move such that the price of resting limit-priced interest to buy (sell) would again be above (below) the Upper (Lower) Price Band.
Next, the Exchange proposes to amend proposed renumbered subparagraph (c)(8)(ii)(A) of Exchange Rule 2614 to replace certain internal cross references to other rules in light of the hierarchical heading changes described above. In particular, the Exchange proposes to amend the cross references contained in Exchange Rule 2614 (c)(8)(ii)(A) that are to current Exchange Rule 2616 (a)(2)(A)(i) and Rule 2616 (a)(2)(A)(ii) to now be to proposed renumbered Exchange Rule 2616 (a)(2)(i)(A) and Rule 2616 (a)(2)(i)(B), respectively.
Similarly, the Exchange proposes to amend subparagraph (a)(5) of Exchange Rule 2616 to replace a certain internal cross reference to another rule in light of the changes described above. In particular, the Exchange proposes to amend the cross reference contained in Exchange Rule 2616 (a)(5) that is to current Exchange Rule 2614 (g)(3)(A), to now be to proposed renumbered Exchange Rule 2614 (g)(3)(i).
Similarly, the Exchange proposes to amend subparagraph (a)(1) of Exchange Rule 2617 to replace a certain internal cross reference to another rule in light of the changes described above. In particular, the Exchange proposes to amend the cross reference contained in Exchange Rule 2617 (a)(1) that is to current Exchange Rule 2614 (g)(3)(A), to now be to proposed renumbered Exchange Rule 2614(g)(3)(i).
Similarly, the Exchange proposes to amend subparagraph (b)(2) of Exchange Rule 2617 to replace certain internal cross references to another rule in light of the changes described above. In particular, the Exchange proposes to amend the cross references contained in Exchange Rule 2617 (b)(2) that is to current Exchange Rule 2614 (g)(3)(A), to now be to proposed renumbered Exchange Rule 2614 (g)(3)(i).
Similarly, the Exchange proposes to amend subparagraph (h)(2)(i)(A)5.d. of Exchange Rule 2622 to replace certain internal cross references to another rule in light of the changes described above. In particular, the Exchange proposes to amend the cross references contained in Exchange Rule 2622 (h)(2)(i)(A)5.d. that are to current Exchange Rule 2614(g)(3)(A), to now be to proposed renumbered Exchange Rule 2614(g)(3)(i).
Similarly, the Exchange proposes to amend Exchange Rule 2623 to replace a certain internal cross reference to another rule in light of the changes described above. In particular, the Exchange proposes to amend the cross reference contained in Exchange Rule 2623 that is to current Exchange Rule 2614(g)(3)(A), to now be to proposed renumbered Exchange Rule 2614(g)(3)(i).
The Exchange believes that the proposed rule changes are consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule changes will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes the proposed changes will not impose any burden on intra-market competition as there is no functional change to the Exchange's System
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 19(b)(3)(A) 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 is filing a proposal to amend the MIAX Pearl Options Fee Schedule (“Fee Schedule”).
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange originally filed this proposal on August 31, 2023 (SR-PEARL-2023-41). On September 12, 2023, the Exchange withdrew SR-PEARL-2023-41 and refiled this proposal. The Exchange proposes to amend Section 1)a) of the Fee Schedule, Exchange Rebates/Fees—Add/Remove Tiered Rebates/Fees, that applies to the MIAX Pearl Market Maker
The Exchange currently assesses transaction rebates and fees to all market participants which are based upon the total monthly volume executed by the Member
The Exchange proposes to amend the Add/Remove Tiered Rebates/Fees set forth in Section 1)a) of the Fee Schedule that apply to the MIAX Pearl Market Maker origin, to modify the volume criteria thresholds for Tiers 5 and 6. The Market Maker origin currently provides certain volume criteria thresholds in Tier 5 that is based upon the total monthly volume executed in all option classes by a Market Maker on MIAX Pearl as a percent of TCV. Pursuant to the Market Maker origin table, Market Makers will qualify for the following Maker rebates and Taker fees in Tier 5 if the Market Maker executes above 1.25% to at least 1.50% of TCV: (i) Maker rebates of ($0.48), against origins other than Priority Customer in Penny Classes; (ii) Maker rebates of ($0.45), against the Priority Customer origin in Penny Classes; (iii) Taker fees of $0.50, against origins other than Priority Customer in Penny Classes; (iv) Taker fees of $0.50, against the Priority Customer origin in Penny Classes; (v) Maker rebates of ($0.70), against all origins in Non-Penny Classes; and (vi) Taker fees of $1.08, against all origins in Non-Penny Classes.
The Market Maker origin currently provides certain volume criteria thresholds in Tier 6 that is based upon the total monthly volume executed in all option classes by a Market Maker on MIAX Pearl as a percent of TCV. Pursuant to the Market Maker origin table, Market Makers will qualify for the following Maker rebates and Taker fees in Tier 6 if the Market Maker executes above 1.50% of TCV: (i) Maker rebates of ($0.48), against origins other than Priority Customer in Penny Classes; (ii) Maker rebates of ($0.46), against the Priority Customer origin in Penny Classes; (iii) Taker fees of $0.50, against origins other than Priority Customer in Penny Classes; (iv) Taker fees of $0.50, against the Priority Customer origin in Penny Classes; (v) Maker rebates of ($0.85), against all origins in Non-Penny
The Exchange proposes to reduce the upper threshold for the volume criteria in Tier 5 of the Market Maker origin from 1.50% to 1.40%. Accordingly, with the proposed change, Market Makers will qualify for the following Maker rebates and Taker fees in Tier 5 if the Market Maker executes above 1.25% to at least 1.40% of TCV: (i) Maker rebates of ($0.48), against origins other than Priority Customer in Penny Classes; (ii) Maker rebates of ($0.45), against the Priority Customer origin in Penny Classes; (iii) Taker fees of $0.50,against origins other than Priority Customer in Penny Classes; (iv) Taker fees of $0.50, against the Priority Customer origin in Penny Classes; (v) Maker rebates of ($0.70), against all origins in Non-Penny Classes; and (vi) Taker fees of $1.08, against all origins in Non-Penny Classes.
The Exchange also proposes to modify the volume criteria threshold for Tier 6 of the Market Maker origin from above 1.50% to now be above 1.40% in light of the proposed change to the volume criteria in Tier 5, above. Accordingly, with the proposed change to the volume criteria in Tier 6, Market Makers will qualify for the following Maker rebates and Taker fees in Tier 6 if the Market Maker executes above 1.40% of TCV: (i) Maker rebates of ($0.48),against origins other than Priority Customer in Penny Classes; (ii) Maker rebates of ($0.46), against the Priority Customer origin in Penny Classes; (iii) Taker fees of $0.50, against origins other than Priority Customer in Penny Classes; (iv) Taker fees of $0.50, against the Priority Customer origin in Penny Classes; (v) Maker rebates of ($0.85), against all origins in Non-Penny Classes; and (vi) Taker fees of $1.07, against all origins in Non-Penny Classes.
The purpose of this proposed change is for business and competitive reasons. With the proposed change, Market Makers should more easily qualify for the higher rebates and lower fees associated with obtaining the volume criteria in Tier 6. The Exchange believes the proposed change would incentivize Market Makers to improve their posted liquidity to the benefit of the entire market, which should increase order flow sent to the Exchange, benefitting all market participants through increased liquidity, tighter markets and order interaction. Additionally, as the amount and type of volume that is executed on the Exchange has shifted since it first established the volume criteria thresholds for Tiers 5 and 6, the Exchange has determined to level-set this threshold amount so that it is more reflective of the current type and amount of volume executed on the Exchange.
The Exchange has designated these changes to be immediately effective.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes its proposal to modify the volume criteria thresholds for Tiers 5 and 6 of the Market Maker origin provides for the equitable allocation of reasonable dues and fees and is not unfairly discriminatory for the following reasons. The Exchange operates in a highly competitive market. The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
The Exchange believes that the ever-shifting market shares among the exchanges from month to month demonstrates that market participants can shift order flow, or discontinue or reduce use of certain categories of products, in response to transaction and/or non-transaction fee changes. For example, on February 28, 2019, the Exchange filed with the Commission a proposal to increase Taker fees in certain Tiers for options transactions in certain Penny classes for Priority Customers and decrease Maker rebates in certain Tiers for options transactions in Penny classes for Priority Customers (which fee was to be effective March 1, 2019).
The Exchange believes its proposal to modify the volume criteria thresholds for Tiers 5 and 6 of the Market Maker origin is reasonable, equitable, and not unfairly discriminatory because Market Makers should more easily qualify for the higher Maker rebates and lower Taker fees associated with those tiers. The Exchange believes the proposed change is reasonable because it should incentivize Market Makers to increase order flow sent to the Exchange, benefiting all market participants through increased liquidity, tighter markets and order interaction. Additionally, as the amount and type of volume that is executed on the Exchange has shifted since it first established the volume criteria thresholds for Tiers 5 and 6 of the Market Maker origin, the Exchange has determined to level-set this threshold amount so that it is more reflective of the current type and amount of volume executed on the Exchange. The Exchange also believes the proposed change is not unfairly discriminatory because it is designed to encourage Market Makers to increase their order flow to the Exchange in order to qualify for the higher Maker rebates and lower Taker fees in Tier 6, which should benefit all Members by providing greater execution opportunities on the Exchange and contribute to a deeper, more liquid market, to the benefit of all investors and market participants.
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.
The Exchange believes its proposal to modify the volume criteria thresholds for Tiers 5 and 6 of the Market Maker origin will not impose any burden on intra-market competition because the Exchange believes that it will not place any category of Exchange market participant at a competitive disadvantage because it will apply to all Market Makers equally. The proposal to modify the volume criteria thresholds for Tiers 5 and 6 of the Market Maker origin is intended to improve market quality. The Exchange believes that its proposal will encourage Market Makers to improve market quality by making it easier for Market Makers to achieve higher tiers, resulting in higher rebates and lower fees, which should result in narrower bid-ask spreads and increased depth of liquidity. This in turn will attract additional order flow to the Exchange, increasing trading opportunities to the benefit of all market participants. Accordingly, the Exchange believes that the proposed changes will continue to attract order flow to the Exchange, thereby encouraging additional volume and liquidity to the benefit of all market participants.
The Exchange believes its proposal will not impose any burden on inter-market competition because, as described above, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other options exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited. The Exchange believes that the proposed rule changes reflect this competitive environment because they modify the Exchange's fees in a manner that encourages market participants to continue to provide liquidity and to send order flow to the Exchange.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Exchange Rule 2614(f) to permit individual firms with Users
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Exchange Rule 2614(f) to permit individual firms with Users that access the Exchange through a direct connection and also access the Exchange through Sponsored Access
The Exchange offers optional anti-internalization functionality to Users in the form of STP modifiers that enable a User to prevent two of its orders from executing against each other. The Exchange offers the following four (4) STP modifiers to Equity Members: Cancel Newest, Cancel Oldest, Decrement and Cancel, and Cancel Both. An order marked with the Cancel Newest modifier will not execute against a contra-side order marked with any STP modifier originating from the same Unique Identifier (as currently defined) and the order with the most recent time stamp marked with the Cancel Newest modifier will be cancelled. The contra-side order with the older timestamp marked with an STP modifier will remain on the MIAX Pearl Equities Book.
Currently, Users can set the STP modifier to apply at the market participant identifier (“MPID”), Exchange Member
The Exchange now proposes to amend Rule 2614(f) and enhance its existing STP functionality by introducing a fifth Unique Identifier, Multiple Access identifier, which will allow a User to prevent orders entered via its direct connection from interacting with the User's orders entered via Sponsored Access. Currently, STP is only available to individual and affiliated
The Multiple Access identifier is similar to the affiliate identifier that is already in place, as it will enable firms that currently enter orders on the Exchange under two different Unique Identifiers to assign the same Unique Identifier to orders entered via its direct connection and to orders entered via Sponsored Access. This will permit the firm to enable STP and prevent contra side orders from executing. While the affiliate identifier requires Users to prove that an affiliate relationship exists between the two Users, the proposed Multiple Access identifier will only require a User to demonstrate: (i) it maintains a Membership as an Equity Member on the Exchange through which it directly submits orders to the System;
There are situations where an individual firm would choose to submit orders to the Exchange through different mechanisms. For instance, a firm may employ different trading strategies across different trading desks and choose to send orders for one strategy to the Exchange through a direct connection while the other strategy is sent through Sponsored Access. The proposed functionality would serve as an additional tool that Users may enable in order to assist with compliance with the various securities laws relating to potentially manipulative trading activity such as wash sales
The Exchange is proposing to allow firms that submit orders to the Exchange through both a direct connection and through Sponsored Access to utilize STP by utilizing the Multiple Access identifier.
The Exchange includes the below examples to demonstrate how STP will operate with the proposed Multiple Access identifier. For all examples below, User A represents Firm 1 accessing the System through a direct connection. User B also represents Firm 1 but where Firm 1 is accessing the System as a sponsored participant through a Sponsoring Member.
This proposed rule change is designed to provide additional flexibility to Equity Members in how they implement
The Exchange notes that, as with the current anti-internalization functionality offered by the Exchange, use of the proposed new Multiple Access identifier STP grouping will not alleviate, or otherwise exempt, Equity Members from their best execution obligations. As such, Equity Members and their Affiliates using STP will continue to be obligated to take appropriate steps to ensure customer orders which were prevented from execution due to anti-internalization ultimately receive the same price, or a better price, than they would have received had execution of the orders not been inhibited by anti-internalization. Further, as with current rule provisions, Market Makers and other Users may not use STP functionality to evade the firm quote obligation, as specified in Exchange Rule 2606(b), and the STP functionality must be used in a manner consistent with just and equitable principles of trade.
The Exchange will issue a trading alert publicly announcing the implementation date of this proposed rule change to provide Equity Members with adequate time to prepare for the associated technological changes. The Exchange anticipates that the implementation date will be in the fourth quarter of 2023.
The proposed rule change is consistent with Section 6(b) of the Act,
Specifically, the Exchange believes that the proposed rule change is consistent with the protection of investors and the public interest because allowing Users that access the Exchange through a direct connection and also access the Exchange through Sponsored Access to be part of the same STP group will provide Equity Members with additional flexibility with respect to how they implement self-trade protections provided by the Exchange that may better support their trading strategies and compliance controls. Equity Members that prefer the current anti-internalization groupings offered by the Exchange can continue to use them without any modification.
In particular, the Exchange believes that the proposed Multiple Access level STP functionality promotes just and equitable principles of trade by allowing individual firms to better manage order flow and prevent undesirable trading activity such as wash sales or self- trades that may occur as a result of the velocity of trading in today's high-speed marketplace. The proposed Multiple Access identifier and description of eligibility to utilize the proposed Multiple Access identifier does not introduce any new or novel functionality, as the proposed amendment does not seek to change the underlying STP functionality, but merely extends the current STP functionality to another trading relationship. For instance, a User may operate trading desk 1 that accesses the Exchange via the User's direct connection, as well as trading desk 2 that accesses the Exchange as a sponsored participant. While these desks may operate different trading strategies, a User may desire to prevent these desks from trading versus each other in the marketplace because the orders are originating from the same entity. Here, Users may desire STP functionality on a Multiple Access level that will help them avoid unintended executions to achieve compliance
Finally, the Exchange notes other equity exchanges recently amended their rules to allow similar groupings for their own anti-internalization functionality.
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. STP is an optional functionality offered by the Exchange and Users are free to decide whether to use STP in their decision-making process when submitting orders to the Exchange.
The Exchange believes that the proposed Multiple Access identifier does not impose any burden on intramarket competition as it seeks to enhance an existing functionality available to all Users. The Exchange is not proposing to introduce any new or novel functionality, but rather is proposing to provide an extension of its existing STP functionality to individual firms who choose to access the System
The Exchange believes that the proposed Multiple Access identifier does not impose any undue burden on intermarket competition. STP is an optional functionality offered by the Exchange and Users are not required to use STP functionality when submitting orders to the Exchange. Further, the Exchange is not required to offer STP and is choosing to do so as a benefit for Users who wish to enable STP functionality. Moreover, the proposed change is not being submitted for competitive reasons, but rather to provide Users enhanced order processing functionality that may prevent undesirable executions by affiliated Users such as wash sales or self-trades. Nonetheless, the proposed rule change would also improve the Exchange's ability to compete with other exchanges that recently amended their rules to allow Multiple Access identifier grouping for their own anti-internalization functionality.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 28, 2023, Nasdaq PHLX LLC (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, 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 is filing with the Commission a proposed rule change to amend the Exchange's fee schedule applicable to Members
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 the proposed rule change is to (i) establish transaction rebates and fees applicable to all Options Members trading on MEMX Options; (ii) establish routing fees applicable to all Options Members trading on MEMX Options who route orders to away exchanges; and (iii) define and clarify terms used in the Options Fee Schedule.
The proposed Transaction Fees section of the Options Fee Schedule sets forth transaction rebates and fees for executions on MEMX Options. MEMX Options will operate a “Maker-Taker” model whereby it provides rebates to Options Members that provide liquidity and charges fees to those that remove liquidity, as further described below. The proposed rebates and fees vary depending on whether a transaction was executed in a customer capacity (“Customer”)
The Exchange will provide fee qualifiers to distinguish between Customer transactions and Non-Customer transactions.
Options Members shall be assessed lower transaction fees and smaller rebates for order executions in Penny options than for order executions in Non-Penny options, for which Members will be assessed higher transaction fees and larger rebates. As noted above, Options Members shall be assessed fees for removing liquidity from the MEMX Options Book and provided rebates for adding liquidity to the MEMX Options Book. At this time, the Exchange will not differentiate between fees charged and rebates assessed for different types of Non-Customer transactions; instead, all Non-Customer transactions (
The Fee Codes and fee qualifiers will be used to make clear to Members what rebates were provided to them and which fees were assessed.
Transactions for Customer accounts in Penny options that remove liquidity from the MEMX Book will be assessed a fee of $0.46 per contract. Transactions for Non-Customer accounts in Penny options that remove liquidity will be assessed a fee of $0.50 per contract. Transactions for Customer accounts in Non-Penny options that remove liquidity from the MEMX Book will be assessed a fee of $0.85 per contract. Finally, transactions for Non-Customer accounts in Non-Penny options that remove liquidity will be assessed a fee of $1.10 per contract. The purpose of the proposed transaction fees is to assess right-sized fees for orders that remove liquidity from the Exchange.
Transactions for Customer accounts in Penny options that add liquidity to the MEMX Options Book will receive a rebate of $0.49 per contract. Transactions for Non-Customer accounts in Penny options that add liquidity will receive a rebate of $0.45 per contract. Transactions for Customer accounts in Non-Penny options that add liquidity to the MEMX Options Book will receive a rebate of $1.04 per contract. Finally, transactions for Non-Customer accounts in Non-Penny options that add liquidity will receive a rebate of $0.80 per contract. The purpose of the proposed transaction rebates is to provide right-sized incentives for Options Members to trade on the Exchange and to incentivize order flow to be directed to the Exchange.
The Exchange does not initially propose to charge tiered fees or provide tiered rebates according to the volume of orders submitted to MEMX Options. Accordingly, all fees and rebates described above are applicable to all Options Members regardless of the overall volume of an Options Member's activities on MEMX Options.
The Exchange proposes to assess Routing Fees on orders routed to other options exchanges. The amount of the applicable fee will be based on whether the order is for a Penny or Non-Penny option. At this time, the Exchange will not charge different routing fees according to the capacity of the order. The Exchange will charge a fee of $0.60 for Penny options routed to another options exchange and $1.20 for Non-Penny options routed to another options exchange.
The purpose of the proposed Routing Fees is to recoup costs incurred by the Exchange when routing orders to other options exchanges on behalf of Options Members. In determining its proposed Routing Fees, the Exchange took into account transaction fees assessed by other options exchanges, the Exchange's projected clearing costs, and the projected administrative, regulatory, and technical costs associated with routing orders to other options exchanges. The Exchange will use its affiliated broker-dealer, MEMX Execution Services, to route orders to other options exchanges or to other broker-dealers that will route such orders to other options exchanges. Routing services offered by the Exchange and its affiliated broker-dealer are completely optional and market participants can readily select between various providers of routing services, including other exchanges and broker-dealers. The proposed structure for routing fees is similar to the fee structure in place for routing at various other exchanges.
The Exchange has included a Definitions section within the Options Fee Schedule. The purpose of the Definitions section is to streamline the Options Fee Schedule by placing many of the defined terms used in the Options Fee Schedule in one location. The Definitions section defines the terms “Penny Program Securities”, “Away Market Maker”, “Broker Dealer”, “Customer”, “Firm”, “Market Maker”, and “Professional”. Many of the defined terms are also defined in the Exchange Rules, particularly in Exchange Rule 16.1. The Exchange notes that other exchanges have Definitions sections in
The Exchange believes that its proposal to amend its Options Fee Schedule is consistent with the provisions of Section 6 of the Act,
Upon its launch, MEMX Options will operate in a highly fragmented and competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient, and the Exchange represents only a small percentage of the overall market. The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and also recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Accordingly, competitive forces constrain the Exchange's transaction fees and rebates, and market participants can readily trade on competing venues if they deem pricing levels at those other venues to be more favorable. The Exchange believes the proposal reflects a reasonable and competitive pricing structure which the Exchange believes would promote price discovery and enhance liquidity and market quality on the Exchange to the benefit of all Members and market participants.
The Exchange believes that it is appropriate, reasonable, and consistent with the Act to charge $0.46 for orders for Customer accounts that remove liquidity in Penny options, because it is comparable to the transaction fees charged by other exchanges for Customer transactions that remove liquidity in Penny options.
The Exchange believes that it is appropriate, reasonable, and consistent with the Act to charge $0.50 for orders for Non-Customer accounts in Penny options that remove liquidity because it is comparable to the transaction fee charged by other exchanges for Non-Customer transactions in Penny options that remove liquidity.
The Exchange believes that it is appropriate, reasonable, and consistent with the Act to charge $0.85 for orders for Customer accounts in Non-Penny options that remove liquidity because it is comparable to the transaction fees charged by other exchanges for Customer transactions in Non-Penny options that remove liquidity.
The Exchange believes that it is appropriate, reasonable, and consistent with the Act to charge $1.10 for orders in Non-Customer accounts in Non-Penny options that remove liquidity because it is comparable to the transaction fees charged by other exchanges for Non-Customer transactions in Non-Penny options that remove liquidity.
The Exchange believes that it is appropriate, reasonable, and consistent with the Act to provide a rebate of $0.49 for orders for Customer accounts in Penny options that add liquidity because it is comparable to the rebate provided by other exchanges for Customer transactions in Penny options that add liquidity.
The Exchange believes that it is appropriate, reasonable, and consistent with the Act to provide a rebate of $0.45 for orders for Non-Customer accounts in Penny options that add liquidity because it is comparable to the rebate provided by other exchanges for Non-Customer transactions in Penny options that add liquidity.
The Exchange believes that it is appropriate, reasonable, and consistent with the Act to provide a rebate of $1.04 for orders for Customer accounts in Non-Penny options that add liquidity because it is comparable to the rebate provided by other exchanges for Customer transactions in Non-Penny options that add liquidity.
The Exchange believes that it is appropriate, reasonable, and consistent with the Act to provide a rebate of $0.80 for orders for Non-Customer accounts in Non-Penny options that add liquidity because it is comparable to the rebate provided by other exchanges for Non-Customer transactions in Non-Penny options that add liquidity.
The Exchange believes that it is appropriate, reasonable, and consistent with the Act to charge fees of $0.60 for routing in Penny options and $1.20 for routing in Non-Penny options, because these routing fees are comparable to those charged by other exchanges for routing Penny and Non-Penny options to away exchanges.
Lastly, the Exchange believes that it is reasonable to add a definitions section to clarify the terms used in the Options Fee Schedule, because it will clearly set forth the terms used in the Transaction Fees portion of the Options Fee Schedule. The Exchange further believes the definition section is reasonable as other national securities exchanges include a definition section in their fee schedule.
For the reasons discussed above, the Exchange submits that its proposed fee structure and changes to the Options Transaction Fee Schedule satisfies the requirements of Sections 6(b)(4) and 6(b)(5) of the Act
The Exchange does not believe that the proposal will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. As a new entrant in the already highly competitive environment for options trading, the Exchange believes that the proposed changes would encourage the submission of additional order flow to a public exchange, thereby promoting market depth, execution incentives and enhanced execution opportunities, as well as price discovery and transparency for all Members. MEMX Options proposes transaction fees, rebates, and routing fees that are comparable to transaction fees, rebates and routing fees assessed by other options exchanges. As a result, the Exchange believes that the proposal furthers the Commission's goal in adopting Regulation NMS of fostering competition among orders, which promotes “more efficient pricing of individual stocks for all types of orders, large and small.”
The Exchange 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 proposed fees and rebates apply equally to all Options Members. The proposed pricing structure is intended to encourage participants to trade on MEMX Options by providing rebates that are comparable to those offered by other exchanges as well as providing competitive fees. The Exchange believes that the proposed rebates and fees will help to encourage Options Members to send orders to the Exchange to the benefit of all Exchange participants. As the proposed fees and rebates are equally applicable to all market participants, the Exchange does not believe there is any burden on intramarket competition.
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. To the contrary, the Exchange believes that the proposed pricing structure will increase competition and is intended to draw volume to the Exchange as it commences operations. The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can shift order flow or discontinue to reduce use of certain categories of products, in response to new or different pricing structures being introduced into the market. Accordingly, competitive forces constrain the Exchange's transaction fees and rebates, and market participants can readily trade on competing venues if they deem pricing levels at those other venues to be more favorable. Currently, no single registered options exchange has more than approximately 18% of the total market share of executed volume of listed options trading.
Additionally, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) 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 change should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 25, 2023, Cboe BZX Exchange, Inc. (“BZX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On June 15, 2023, pursuant to Section 19(b)(2) of the Act,
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to issue an order approving or disapproving the proposed rule change so that it has sufficient time
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 (the “Act”),
Cboe BZX Exchange, Inc. (“BZX” or the “Exchange”) is filing with the Securities and Exchange Commission (“Commission” or “SEC”) a proposed rule change to adopt an alternative to the minimum $4 price requirement for companies seeking to list Tier II securities on the Exchange.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to adopt an alternative to the minimum $4 price requirement for companies that seek to list Tier II securities on the Exchange which meet the express exclusion from the definition of a “penny stock” contained in Exchange Act Rule 3a51-1(g) (the “Penny Stock Rules”).
The Exchange is seeking to make this change to enhance competition among exchanges for companies with securities priced between $2 and $4. Rule 3a51-1
The penny stock rules also exclude from the definition of penny stock, under a “grandfather” provision, securities registered on a national securities exchange that has been continually registered as such since April 20, 1992, and has maintained quantitative listing standards that are substantially similar to or stricter than those listing standards that were in place on the exchange on January 8, 2004.
In 2012, Nasdaq received Commission approval for a proposed rule change that allowed it to adopt an alternative to the $4 bid price requirement (the “Nasdaq proposal”).
Under proposed Rule 14.9(b)(1)(A)(ii), companies that maintain a $2 or $3 closing price for at least five consecutive business days prior to approval would qualify for listing, if among other things, they meet the net tangible assets or average revenue tests of the alternative penny stock exclusion set forth in Exchange Act Rule 3a51-1(g)
As proposed under new interpretation and policy .01(a) to Rule 14.9, an Exchange-listed security could become subject to the penny stock rules following initial listing if it no longer meets the tangible assets or average revenue tests of the alternative exclusion, and does not qualify for another exclusion under the penny stock rules. Further, unlike securities listed under the Exchange's existing standards, which have a blanket exclusion from the penny stock rules, broker-dealers that effect recommended transactions in securities that originally qualified for listing under the Exchange's alternative price standard would, among other things, under Exchange Act Rule 3a51-1(g), need to review current financial statements of the issuer to verify that it meets the applicable net tangible assets or average revenue test, have a reasonable basis for believing they remain accurate, and preserve copies of those financial statements as part of its records. As provided in proposed Interpretation and Policy .01 to Rule 14.9, in order to assist brokers' and dealers' compliance with the requirements of the Penny Stock Rules, the Exchange will monitor companies listed under the proposed alternative and publish a list of any company that initially listed under that requirement, which does not then meet the requirements of Exchange Act Rule 3a51-1(g), described above, or any of the other exclusions from being a penny stock contained in Rule 3a51-1.
If a company initially lists with a bid price below $4 under the alternative requirement contained in Rule 14.9(b)(1)(A)(ii), but subsequently achieves a $4 closing price for at least five consecutive business days and, at the same time, satisfies all other initial listing criteria, it will no longer be considered as having listed under the alternative requirement and the Exchange will notify the Company that it has qualified for listing under the price requirement contained in Rule 14.9(b)(1)(A)(i).
Proposed Interpretation and Policy .01(b) to Rule 14.9 provides that the proposed alternative price test will be based on the BZX Official Closing Price
The Exchange also proposes that the required closing price must be achieved for at least five consecutive business days before approval of the listing application.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The proposed rule change would adopt a $2 and $3 initial listing price alternative for Tier II securities listed on the Exchange that is substantially similar to the requirements of NYSE American and Nasdaq. Particularly, the proposed rule change would require companies to satisfy an additional net tangible asset or revenue test, which is consistent with the requirements for a security to avoid being a penny stock as set forth in Exchange Act Rule 3a51-1(g).
As discussed above, broker-dealers that effect recommended transactions in securities that originally qualified for listing under the Exchange's alternative standard would among other things, under Exchange Act Rule 3a51-1(g), need to review current financial statements of the issuer to verify that it meets the applicable net tangible assets or average revenue test, have a reasonable basis for believing they remain accurate, and preserve copies of those financial statements as part of its records. To facilitate compliance by broker-dealers, the Exchange has committed to monitor the companies listed under the alternative price standard and to publish on its website, and update daily, a list of any such company that no longer meets the net tangible assets or average revenue tests of the penny stock exclusion, and which does not satisfy any other penny stock exclusion. The Exchange also specifically reminds broker-dealers of their obligations under the penny stock rules. The Exchange believes that, although the listing of securities that do not have a blanket exclusion from the penny stock rules and require ongoing monitoring may increase compliance burdens on broker-dealers, the additional steps proposed by the Exchange to facilitate compliance should reduce those burdens and that, on balance, the Exchange's proposal is consistent with the requirement of Section 6(b)(5) of the Act that the rules of an exchange, among other things, be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade and, in general, to protect investors and the public interest.
Further, to address concerns about the potential manipulation of lower priced stocks to meet the initial listing requirements, the Exchange has proposed to require a company to maintain a $2 or $3 closing price for five consecutive business days prior to approval for listing, rather than on a single day. The Exchange believes that requiring the minimum $2 or $3 closing price to be maintained for a longer period should reduce the risk that some might attempt to manipulate or otherwise artificially inflate the closing price in order to allow a security to qualify for listing. In addition, the Exchange notes that it will exercise its discretionary authority to deny initial listing if there are particular concerns about an issuer, such as its ability to maintain compliance with continued listing standards or if there were other public interest concerns. The Exchange believes these additional measures, in conjunction with Exchange's surveillance procedures and pre-listing qualification review, should help reduce the potential for price manipulation to meet the new initial listing standards, and in this respect are designed to prevent fraudulent and manipulative acts and practices consistent with Section 6(b)(5) of the Act.
As proposed, if securities listed under the alternative price listing standard subsequently achieve a $4 closing price over at least five consecutive business days, and the issuer and the securities satisfy all other relevant initial listing criteria, then such securities would no longer be considered as having listed under the alternative price requirement. The Exchange notes that it has taken several steps to address whether this provision could provide an incentive for market participants to manipulate the price of the security in order to achieve the $4 closing price and no longer be considered as having listed under the alternative requirement. First, the Exchange represents that it will conduct a robust, wholesale review of the issuer's compliance with all applicable initial listing criteria, including qualitative and quantitative standards, at the time the $4 closing price is achieved, and will have a reasonable basis to believe that that price was legitimately, and not manipulatively, achieved. Secondly, the Exchange represents that it is developing enhanced surveillance procedures to monitor securities listed under the alternative price requirement as they approach $4 to identify anomalous trading that would be indicative of potential price manipulation. Finally, the proposal requires the $4 closing price to be met over at least a five consecutive business day period in order to reduce the potential for price manipulation. The Exchange believes that these measures should help reduce the potential for price manipulation to achieve the $4 closing price, and in this respect are designed to prevent fraudulent and manipulative acts and practices consistent with Section 6(b)(5) of the Act.
Section 6(b)(8) of the Act requires that the rules of an exchange not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In addition, Section 11A of the Act
Finally, as noted above, the proposed rule change would adopt the identical initial listing price requirement contained in the NYSE American Company Guide as well as Nasdaq Listing Rules. While the Exchange acknowledges that Nasdaq has amended its initial listing requirements as it pertains to unrestricted publicly held shares since the Commission approved the alternative minimum price requirement, the Exchange notes that its initial listing standards are substantively identical to the Nasdaq Capital Market initial listing standards at the time the alternative minimum price requirement was approved by the Commission.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes the proposed rule change will not impose any unnecessary burden on intramarket competition as all companies seeking to list Tier II securities on the Exchange would be affected in the same manner by the proposed change.
The proposed rule change will expand the competition for the listing of equity securities as they will enable the Exchange to compete for the listing of companies that are currently not qualified for listing on the Exchange but are qualified to list on other national securities exchanges. To the extent that companies prefer listing on a market with these proposed listing standards, other exchanges can choose to adopt similar enhancements to their requirements. As such, these changes are neither intended to, nor expected to, impose any burden on competition between exchanges.
The Exchange neither solicited nor received comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. by order approve or disapprove such proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be 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.
2:00 p.m. on Thursday, October 5, 2023.
The meeting will be held via remote means and/or at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
The subject matter of the closed meeting will consist of the following topics:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to examinations and enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting agenda items that may consist of adjudicatory, examination, litigation, or regulatory matters.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Small Business Administration.
Notice.
This is a notice of an Administrative disaster declaration of a rural area for the State of Wyoming dated 09/25/2023.
Issued on 09/25/2023.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
Alan Escobar, Office of Disaster Recovery & Resilience, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration of a rural area, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 18195 6 and for economic injury is 18196 0.
The Small Business Administration publishes an interest rate called the optional “peg” rate (13 CFR 120.214) on a quarterly basis. This rate is a weighted average cost of money to the Government for maturities similar to the average SBA direct loan. This rate may be used as a base rate for guaranteed fluctuating interest rate SBA loans. This rate will be 4.13 percent for the October-December quarter of fiscal year 2024. Pursuant to 13 CFR 120.921(b), the maximum legal interest rate for any third party lender's commercial loan which funds any portion of the cost of a 504 project (see 13 CFR 120.801) shall be 6% over the New York Prime rate or, if that exceeds the maximum interest rate permitted by the constitution or laws of a given State, the maximum interest rate will be the rate permitted by the constitution or laws of the given State.
Small Business Administration.
Amendment 1.
This is an amendment of the Administrative disaster declaration of a rural area for the State of Vermont dated 09/14/2023.
Issued on 09/25/2023.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
Alan Escobar, Office of Disaster Recovery & Resilience, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
The notice of the Administrator's disaster declaration of a rural area for the State of Vermont, dated 09/14/2023, is hereby amended to re-establish the incident period for this disaster as beginning 07/07/2023 and continuing through 07/21/2023.
All other information in the original declaration remains unchanged.
Notice of request for public comments.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to December 1, 2023.
You may submit comments by any of the following methods:
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The information collected on the DS-5525, Statement of Exigent/Special Family Circumstances for Issuance of a U.S. Passport to a Child under Age 16, is used in conjunction with the DS-11, Application for a U.S. Passport. The DS-5525 can serve as the statement describing exigent or special family circumstances, which is required if written consent of the non-applying parent or guardian cannot be obtained when the passport application is executed for a child under age 16.
Passport Services collects information from U.S. citizens and non-citizen nationals when they complete and submit the DS-5525, Statement of Exigent/Special Family Circumstances for Issuance of a U.S. Passport to a Child under Age 16. Passport applicants can either download the DS-5525 from the internet or obtain the form from an acceptance facility/passport agency. The form must be completed, signed, and submitted along with the applicant's DS-11, Application for a U.S. Passport.
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to December 1, 2023.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument, and supporting documents, to Jennifer Monna who may be reached at 202-663-1657 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
Form DS-3057 is designed to collect medical information to provide medical providers with current and adequate information to base decisions on whether contractors and eligible family members will have sufficient medical resources at a diplomatic mission abroad to maintain the health and fitness of the individual and family members.
The respondent will obtain the DS-3057 form from their human resources representative or download the form from a department website. The respondent will complete and submit the form offline.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments up to November 1, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Under the PRA, (44 U.S.C. 3501-3520) 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 requires Federal agencies to provide a 60-day notice in the
Whether seeking a loan, Social Security benefits, veteran's benefits, or other services provided by the Federal Government, individuals and businesses expect Government customer services to be efficient and intuitive, just like services from leading private-sector organizations. Yet the 2016 American Consumer Satisfaction Index and the 2017 Forrester Federal Customer Experience Index show that, on average, Government services lag nine percentage points behind the private sector.
A modern, streamlined and responsive customer experience means: raising government-wide customer experience to the average of the private sector service industry; developing indicators for high-impact Federal programs to monitor progress towards excellent customer experience and mature digital services; and providing the structure (including increasing transparency) and resources to ensure customer experience is a focal point for agency leadership. To support this, OMB Circular A-11 Section 280 established government-wide standards for mature customer experience organizations in government and measurement. To enable Federal programs to deliver the experience taxpayers deserve, they must undertake three general categories of activities: conduct ongoing customer research, gather and share customer feedback, and test services and digital products.
These data collection efforts may be either qualitative or quantitative in nature or may consist of mixed methods. Additionally, data may be collected via a variety of means, including but not limited to electronic or social media, direct or indirect observation (
The results of the data collected will be used to improve the delivery of Federal services and programs. It will include the creation of personas, customer journey maps, and reports and summaries of customer feedback data and user insights. It will also provide government-wide data on customer experience that can be displayed on performance.gov to help build transparency and accountability of Federal programs to the customers they serve.
The Department of State will collect this information by electronic means when possible, as well as by mail, fax, telephone, technical discussions, and in-person interviews. The Department of State may also utilize observational techniques to collect this information.
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The Department of State invites comments on: (a) 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; (b) the accuracy of the agency's estimate of the burden (including hours and cost) 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. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Office of the United States Trade Representative.
Notice and request for applications.
The Office of the United States Trade Representative (USTR) expects to establish a new two-year charter term and is accepting applications from qualified individuals interested in serving as a member of the Trade and Environment Policy Advisory Committee (TEPAC). The TEPAC is a trade advisory committee that provides general policy advice to the U.S. Trade Representative on trade policy matters that have a significant impact on the environment.
USTR will accept nominations on a rolling basis for membership on the TEPAC for a new two-year charter term expected to expire in September 2025.
Amanda Mayhew, Office of Environment and Natural Resources,
Section 135(c)(1) of the Trade Act of 1974, as amended (19 U.S.C. 2155(c)(1)), authorizes the President to establish individual general trade policy advisory committees for industry, labor, agriculture, services, investment, defense, small business, and other interests, as appropriate, to provide general policy advice. The President delegated that authority to the U.S. Trade Representative in Executive Order 11846, section 4(d), issued on March 27, 1975. Pursuant to an executive order that renewed the TEPAC and extended Executive Order 12905 of March 25, 1994, the U.S. Trade Representative expects to establish a new two-year charter term for the TEPAC, which would end in September 2025.
The TEPAC is a trade advisory committee established to provide general policy advice to the U.S. Trade Representative on trade policy matters that have a significant impact on the environment. More specifically, the TEPAC provides general policy advice with respect to the effect on the environment of the implementation of trade agreements; negotiating objectives and bargaining positions before entering into trade agreements; the operation of any trade agreement once entered into, and other matters arising in connection with the development, implementation, and administration of the trade policy of the United States.
The TEPAC meets as needed, at the call either of the U.S. Trade Representative or their designee, or two-thirds of the TEPAC members, depending on various factors such as the level of activity of trade negotiations and the needs of the U.S. Trade Representative.
The TEPAC is composed of not more than 35 members, including, but not limited to, representatives from environmental interest groups (including environmental justice), industry (including the environmental technology and environmental services industries), agriculture, academia, consumer groups, services, non-governmental organizations, and others with expertise in trade and environment matters. USTR intends for the TEPAC to be broadly representative of key sectors and groups of the economy with an interest in trade and environmental policy issues. Fostering diversity, equity, inclusion and accessibility (DEIA) is one of the top priorities.
The U.S. Trade Representative appoints TEPAC members in consultation with relevant Cabinet Secretaries, as appropriate, for a term that will not exceed the duration of the charter. Members serve at the discretion of the U.S. Trade Representative. Individuals can be reappointed for any number of terms.
The U.S. Trade Representative is committed to a trade agenda that advances racial equity and supports underserved communities and will seek advice and recommendations on trade policies that eliminate social and economic structural barriers to equality and economic opportunity, and to better understand the projected impact of proposed trade policies on communities of color and underserved communities. The U.S. Trade Representative strongly encourages diverse backgrounds and perspectives and makes appointments to the TEPAC without regard to political affiliation and in accordance with equal opportunity practices that promote diversity, equity, inclusion, and accessibility. USTR strives to ensure balance in terms of sectors, demographics, and other factors relevant to USTR's needs.
TEPAC members serve without either compensation or reimbursement of expenses. Members are responsible for
TEPAC members are appointed to represent their sponsoring U.S. entity's interests on trade and the environment, and thus USTR's foremost consideration for applicants is their ability to carry out the goals of section 135(c) of the Trade Act of 1974, as amended. Other criteria include the applicant's knowledge of and expertise in international trade issues as relevant to the work of the TEPAC and USTR. USTR anticipates that almost all TEPAC members will serve in a representative capacity with a limited number serving in an individual capacity as subject matter experts. These members, known as special government employees, are subject to conflict of interest rules and may have to complete a financial disclosure report.
USTR is soliciting nominations for membership on the TEPAC. To apply for membership, an applicant must meet the following eligibility criteria at the time of application and at all times during their term of service as a TEPAC member:
1. The person must be a U.S. citizen.
2. The person cannot be a full-time employee of a U.S. governmental entity.
3. If serving in an individual capacity, the person cannot be a federally registered lobbyist.
4. The person cannot be registered with the U.S. Department of Justice under the Foreign Agents Registration Act.
5. The person must be able to obtain and maintain a security clearance.
6. For representative members, who will comprise almost all of the TEPAC, the person must represent a U.S. organization whose members (or funders) have a demonstrated interest in issues relevant to trade and the environment or have personal experience or expertise in trade and the environment.
7. For eligibility purposes, a “U.S. organization” is an organization established under the laws of the United States, that is controlled by U.S. citizens, by another U.S. organization (or organizations), or by a U.S. entity (or entities), determined based on its board of directors (or comparable governing body), membership, and funding sources, as applicable. To qualify as a U.S. organization, more than 50 percent of the board of directors (or comparable governing body) and more than 50 percent of the membership of the organization to be represented must be U.S. citizens, U.S. organizations, or U.S. entities. Additionally, at least 50 percent of the organization's annual revenue must be attributable to nongovernmental U.S. sources.
8. For members who will serve in an individual capacity, the person must possess subject matter expertise regarding international trade and environmental issues.
In order to be considered for TEPAC membership, interested persons should submit the following to Amanda Mayhew, Office of Environment and Natural Resources,
• Name, title, affiliation, and contact information of the individual requesting consideration.
• If applicable, a sponsor letter on the organization's letterhead containing a brief description of the manner in which international trade affects the organization and why USTR should consider the applicant for membership.
• The applicant's personal resume.
• An affirmative statement that the applicant and the organization they represent meet all eligibility requirements.
USTR will consider applicants who meet the eligibility criteria in accordance with equal opportunity practices that promote diversity, equity, inclusion, and accessibility, based on the following factors:
• Ability to represent the sponsoring U.S. entity's or U.S. organization's and its subsector's interests on trade and environmental matters.
• Knowledge of and experience in trade and environmental matters relevant to the work of the TEPAC and USTR.
• How they will contribute to trade policies that eliminate social and economic structural barriers to equality and economic opportunity and to understanding of the projected impact of proposed trade policies on communities of color and underserved communities.
• Ensuring that the TEPAC is balanced in terms of points of view, demographics, geography, and entity or organization size.
Office of the United States Trade Representative (USTR).
Notice.
USTR is announcing that its fiscal year (FY) 2021 service contract inventory is publicly available.
Michelle Secrist, Financial and Accounting Analyst, at
In accordance with section 743 of Division C of the Consolidated Appropriations Act of 2010 (Pub. L. 111-117), USTR is providing notice that USTR's FY2021 service contract inventory is publicly available. The inventory includes several attributes of certain service contracts such as dollar value, contract type, and place of performance. USTR developed its inventory and analysis in accordance with instructions issued by the Office of Management and Budget's Office of Federal Procurement Policy.
USTR's inventory is included in the government-wide inventory at
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion nor omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before October 23, 2023.
Send comments identified by docket number FAA-2022-0767 using any of the following methods:
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Nia Daniels, (202) 267-7626, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice of request for a change in designation of on-airport property federally conveyed, as a result of the Surplus Property Act of 1944, from aeronautical to non-aeronautical use.
The FAA is requesting public comment on the Iberia Parish Airport Authority's proposal to change 233 acres of airport property at Acadiana Regional Airport in New Iberia, Louisiana from aeronautical to non-aeronautical use. This acreage was federally conveyed through the Surplus Property Act of 1944.
Comments must be received on or before November 1, 2023.
Comments on this application may be mailed or delivered to the FAA at the following address: Mr. Justin Barker, Manager, Federal Aviation Administration, Southwest Region, Airports Division, Louisiana/New Mexico Airports Development Office, ASW-640, Fort Worth, Texas 76177.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Maurice Songy, Airport Executive Director, at the following address: 1404 Hangar Drive, New Iberia, LA 70560.
Ms. Haley Hood, Program Manager, Federal Aviation Administration, Louisiana/New Mexico Airports Development Office, ASW-640, 10101 Hillwood Parkway, Fort Worth, Texas 76177, Telephone: (817) 222-5522, Email:
In accordance with 49 U.S.C 47107(h), this notice is required to be published in the
The following is a brief overview of the request:
The Iberia Parish Airport Authority requests portions of parcels 2 and 4B (as shown on the Exhibit A) totaling 233 acres, be released for non-aeronautical use. The proposed lease includes a solar manufacturing facility. Historic parcel 2 was acquired on May 6, 1968 and historic parcel 4B on February 9, 1970 under the Surplus Property Act of 1944. The proposed lease area is located north of NW Bypass Highway,east of Leon Landry Road,west of West Admiral Doyle Drive, south of Fox Road, and southeast of the Terminal Area. The Airport Authority will lease this property to grow airport revenues as well as the economy. The purpose of this request is to permanently change the designation of the property given there is no potential for future aviation use, as demonstrated by the Airport Layout Plan. Subsequent to the implementation of the proposed redesignation, rents received by the airport from this property must be used in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the
Any person may inspect the request by appointment at the FAA office address listed above. Interested persons are invited to comment. All comments will be considered by the FAA to extent practicable.
Issued in Fort Worth, Texas.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion nor omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before October 23, 2023.
Send comments identified by docket number FAA-2020-0564 using any of the following methods:
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Nia Daniels, (202) 267-7626, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The information collection involves a survey of uncrewed-aircraft-systems (UAS) operators within the United States. The information gathered through the survey's questionnaire on flight behavior and fleet characteristics is used to inform UAS rule making and guide investment in UAS research and infrastructure. This renewal seeks to continue the survey and improve the survey design to increase the generalization of survey results.
Written comments should be submitted by November 29th, 2023.
Please send written comments:
William Ekins by email at:
This information collection request is to modify and renew the existing Survey of UAS Operators. The continuation of this survey is expected to improve the FAA's knowledge of UAS operations and better predict the nature of UAS operations within the national airspace system (NAS). The information gathered empowers the FAA to make informed decisions surrounding UAS operations within the NAS thereby supporting its mission of safety and alignment with title 49 of the United States Code.
This information collection renewal asks to improve the survey design by expanding the target population and adding an additional stratum to the sampling process. The original survey's target population included only registered small UAS operators—operators with UAS weighing less than 55lbs—within the United States. The survey under the renewed information collection would expand the target population to include all UAS operators, regardless of UAS weight, by including UAS operators with a section 44807 exemption, which utilizes the aircraft registry under section 44103 as a sample frame. In addition, data collected from the 2021 and 2022 UAS activity surveys suggested that operators with larger UAS fleets have more diverse UAS activity than UAS operators with small fleets, who are most of the section 349 and part 107 registries. Therefore, to improve sampling a fleet-size based stratum will be added to the sampling process when a registry contains information on the size of the fleet, such as the part 107 registry. This will ensure proper sampling of operators with large fleets.
Selected registrants are invited to complete a questionnaire regarding the operator's fleet characteristics, flight behavior, and overall UAS activities. The survey's questionnaire contains over 80 questions, but due to skip logic, the average respondent will only answer 18 questions. Commercial and emergency response operator have 6 and 10 additional questions, respectively, specific to their sector. We estimate the questionnaire requires 10 minutes on average to complete. Responding to the survey is voluntary, and respondents are given the option of opting out of the current year's survey or all future surveys. All collected data are anonymized and only aggregated data are reported, thereby protecting the identity of the respondents. The survey will open in November of the year for which the UAS activity is gathered and close on February 1st of the following year.
Due to the changing nomenclature of this section of aviation, we request to change the name of the survey from the Survey of Unmanned-Aircraft-Systems Operators to the Survey of Uncrewed-Aircraft-Systems Operators.
Federal Aviation Administration (FAA), Department of Transportation.
Public comment period for the FAA's draft environmental review document.
The FAA announces the release of the draft environmental review document for the amendments to area navigation (RNAV) arrival procedures, HUULL, IRNMN, and RYDRR, at Los Angeles International Airport (KLAX), in Los Angeles, California for public review and comment. The draft environmental review document is available for public review beginning on October 2, 2023 and comments can be submitted on or before November 1, 2023. Comments can be submitted by email to
Joe Bert, Operations Support Group, Western Service Center, 2200 216th Street, Des Moines, WA 98198; telephone (206) 231-2233.
In accordance with the U.S. Court of Appeals for the Ninth Circuit's (Court) holding in
The draft environmental review document is available on the FAA website at:
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of information collection; request for comment.
Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, FRA seeks approval of the Information Collection Request (ICR) summarized below. Before submitting this ICR to the Office of Management and Budget (OMB) for approval, FRA is soliciting public comment on specific aspects of the activities identified in the ICR.
Interested persons are invited to submit comments on or before December 1, 2023.
Written comments and recommendations for the proposed ICR should be submitted on
Ms. Arlette Mussington, Information Collection Clearance Officer, at email:
The PRA, 44 U.S.C. 3501-3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to provide 60-days' notice to the public to allow comment on information collection activities before seeking OMB approval of the activities.
FRA believes that soliciting public comment may reduce the administrative and paperwork burdens associated with the collection of information that Federal regulations mandate. In summary, comments received will advance three objectives: (1) reduce reporting burdens; (2) organize information collection requirements in a “user-friendly” format to improve the use of such information; and (3) accurately assess the resources expended to retrieve and produce information requested.
The summary below describes the ICR that FRA will submit for OMB clearance as the PRA requires:
In this 60-day notice, FRA made no adjustments to the previously approved burden hours and responses in the OMB, Office of Information and Regulatory Affairs (OIRA) inventory.
FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information that does not display a currently valid OMB control number.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of information collection; request for comment.
Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, FRA seeks approval of the Information Collection Request (ICR) summarized below. Before submitting this ICR to the Office of Management and Budget (OMB) for approval, FRA is soliciting public comment on specific aspects of the activities identified in the ICR.
Interested persons are invited to submit comments on or before December 1, 2023.
Written comments and recommendations for the proposed ICR should be submitted on
Ms. Arlette Mussington, Information Collection Clearance Officer, at email:
The PRA, 44 U.S.C. 3501-3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to provide 60-days' notice to the public to allow comment on information collection activities before seeking OMB approval of the activities.
FRA believes that soliciting public comment may reduce the administrative and paperwork burdens associated with the collection of information that Federal regulations mandate. In summary, comments received will advance three objectives: (1) reduce reporting burdens; (2) organize information collection requirements in a “user-friendly” format to improve the use of such information; and (3) accurately assess the resources expended to retrieve and produce information requested.
The summary below describes the ICR that FRA will submit for OMB clearance as the PRA requires:
In this 60-day notice, FRA made no adjustments to the previously approved burden hours and responses in the OMB, Office of Information and Regulatory Affairs (OIRA) inventory.
FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information that does not display a currently valid OMB control number.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of information collection; request for comment.
Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, FRA seeks approval of the Information Collection Requests (ICRs) summarized below. Before submitting the ICRs to the Office of Management and Budget (OMB) for approval, FRA is soliciting public comment on specific aspects of the activities identified in the ICRs.
Interested persons are invited to submit comments on or before December 1, 2023.
Written comments and recommendations for the proposed ICRs should be submitted on
Ms. Arlette Mussington, Information Collection Clearance Officer, at email:
The PRA, 44 U.S.C. 3501-3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to provide 60-days' notice to the public to allow comment on information collection activities before seeking OMB approval of the activities.
FRA believes that soliciting public comment may reduce the administrative
The summary below describes the ICRs that FRA will submit for OMB clearance as the PRA requires:
In this 60-day notice, FRA made no adjustments to the previously approved burden hours and responses in the OMB, Office of Information and Regulatory Affairs (OIRA) inventory.
In this 60-day notice, FRA made no adjustments to the previously approved burden hours and responses in the OMB, OIRA inventory.
FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information that does
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. ch. 10, that the Executive Committee of the VA Voluntary Service (VAVS) National Advisory Committee (Committee) will meet on October 26-27, 2023 at the Veterans of Foreign Wars Washington Office located at 200 Maryland Avenue NE, Washington, DC 20002. The meeting sessions will begin and end as follows:
The meeting sessions are open to the public.
The Committee advises the Secretary, through the Under Secretary for Health, on the coordination and promotion of volunteer activities and strategic partnerships within VA health care facilities on matters related to volunteerism. The Committee is also comprised of 56 major Veteran, civic and service organizations. The Executive Committee consists of 20 representatives from the Committee member organizations.
Agenda topics will include the Committee goals and objectives; review of minutes from the April 26, 2023 meeting; an update on VA Center for Development and Civic Engagement activities; Veterans Health Administration update and journey to become a High Reliability Organization; subcommittee reports; review of standard operating procedures; review of fiscal year 2023 organization data; 2024 annual the Committee meeting plans; and any new business.
The public may submit written statements for the Committee's review to Sabrina C. Clark, Ph.D., Designated Federal Officer, VA Center for Development and Civic Engagement (15CDCE), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, or email at
(b) Within 120 days of the date of this memorandum, all agencies with applicable authorities and responsibilities, including those agencies identified in subsection (a) of this section, shall review their programs affecting salmon, steelhead, and other native fish populations in the Basin, including any program with authority or responsibility with respect to the CRS, for consistency with the policy established in section 1 of this memorandum. As soon as practicable following such review, agencies shall, consistent with applicable law, identify and initiate any steps necessary to advance that policy.
(c) Within 220 days of the date of this memorandum, all agencies with applicable authorities and responsibilities, including those agencies identified in subsection (a) of this section, shall provide the Director of the Office of Management and Budget (Director) an assessment of the agency's programs that can advance the policy established in section 1 of this memorandum and the resources such programs need for this purpose. Based on the assessment, each agency shall prioritize these activities to the extent feasible in their program and budget planning.
(b) Nothing in this memorandum shall be construed to impair or otherwise affect:
(c) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(e) Independent agencies are strongly encouraged to comply with the provisions of this memorandum.
Federal Emergency Management Agency, DHS.
Notice of proposed rulemaking.
The Federal Emergency Management Agency (FEMA) proposes to amend its regulations to implement the Federal Flood Risk Management Standard (FFRMS) and update the agency's 8-step decision-making process floodplain reviews. FEMA also proposes a supplementary policy that would further clarify how FEMA would apply the FFRMS. The proposed rule would change how FEMA defines a floodplain with respect to certain actions, and FEMA would use natural systems, ecosystem process, and nature-based approaches, where possible, when developing alternatives to locating the proposed action in the floodplain.
Comments must be received no later than December 1, 2023.
You may submit comments, identified by Docket ID: FEMA-2023-0026, via the Federal eRulemaking Portal:
Portia Ross, Policy and Integration Division Director, Office of Environmental Planning and Historic Preservation, Resilience, DHS/FEMA, 400 C Street SW, Suite 313, Washington, DC 20472-3020. Phone: (202) 709-0677; Email:
Interested persons are invited to participate in this rulemaking by submitting comments and related materials. We will consider all comments and material received during the comment period.
If you submit a comment, include the Docket ID FEMA-2023-0026, indicate the specific section of this document to which each comment applies, and give the reason for each comment. All submissions may be posted, without change, to the Federal e-Rulemaking Portal at
Viewing comments and documents: For access to the docket to read background documents or comments received, go to the Federal e-Rulemaking Portal at
On January 30, 2015, the President issued Executive Order 13690, “Establishing a Federal Flood Risk Management Standard (FFRMS) and a Process for Further Soliciting and Considering Stakeholder Input.”
On August 22, 2016, FEMA published a Notice of Proposed Rulemaking (NPRM) entitled “Updates to Floodplain Management and Protection of Wetlands Regulations to Implement Executive Order 13690 and the Federal Flood Risk Management Standard” in the
On August 15, 2017, the President issued Executive Order 13807 (“Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects”) which revoked Executive Order 13690.
FEMA is proposing to amend 44 CFR part 9, “Floodplain Management and Protection of Wetlands,” and issue a supplementary policy to implement the FFRMS and update the agency's 8-step process. As mentioned above, the FFRMS is a flood resilience standard that is required for “Federally funded projects” and provides a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains and wetlands. A floodplain is any land area that is subject to flooding and refers to geographic features with undefined boundaries. 44 CFR part 9 describes the 8-step process FEMA uses to determine whether a proposed action would be located within or affect a floodplain, and if so, whether and how to continue with or modify the proposed action. Executive Order 11988, as amended,
FEMA believes that this rule is an important step toward mitigating future flood risk, and that such mitigation will ultimately benefit communities by allowing them to recover from future disasters more efficiently and effectively. The United States is experiencing increased flooding and flood risk from climate change.
FEMA estimated the total impacts of the proposed rule by analyzing the impact of the FVA, 0.2PFA and CISA for FEMA's Public Assistance (PA), Individual Assistance (IA), and Hazard Mitigation Assistance (HMA) grant programs by examining the number of projects that would be subject to the proposed requirements in the first 10 years after the rule's publication.
Table 3 provides the estimated number of structures and facilities affected by the proposed rule over the first 10 years, assuming that each approach is the only expansion option. Structures, which are walled and roofed buildings, would comply with the proposed FFRMS through elevating or floodproofing to the required height. Facilities, which are any human-made or human-placed items other than a structure such as roads and bridges, would require different mitigation measures in order to comply with the increased resiliency standard of the proposed rule. The monetized impacts of this rule are representative of the floodproofing and elevation mitigation measures that would be required of structures. However, for reasons explained in more detail later, FEMA was unable to monetize the impacts of the rule for facilities.
Quantified estimates of the benefits of this rule are available for only non-residential PA Category E projects, which are for structures. Due to the highly project-specific nature of facilities projects and numerous options for making them resilient, FEMA could not estimate the costs of improving flood resiliency of facilities.
Below, FEMA describes in more specific detail the basis for this proposed rule. Section III.A describes Executive Order 11988, the Water Resources Council's 1978 “Floodplain Management Guidelines” (1978 Guidelines), and the statutory authority underlying the Executive Order. Executive Order 11988 along with the 1978 Guidelines established an 8-step decision-making process by which Federal agencies carry out Executive Order 11988's direction to avoid the long- and short-term adverse impacts associated with the occupancy and modification of the floodplain and avoid the direct or indirect support of floodplain development whenever there is a practicable alternative. Section III.B describes FEMA's statutory authority to require its grant recipients to carry out repairs or construction in accordance with specific standards. Section III.C describes FEMA's implementing regulations at 44 CFR part 9, which closely follow the model decision-making process under Executive Order 11988. Section III.D describes how lessons learned from major events, including Hurricane Sandy, prompted reevaluation of the prevailing standard for determining whether a proposed action was located within a floodplain. Section III.E describes the development of Executive Order 13690, the Federal Flood Risk Management Standard, and additional guidance in the Revised Guidelines issued in 2015 as well as subsequent amendments to Executive Order 11988. Section III.F describes the substantive components of the Federal Flood Risk Management Standard and Section III.G describes FEMA's proposed approach to implement the required changes.
The President issued Executive Order 11988 (42 FR 26951, May 25, 1977) in furtherance of the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001
To meet these requirements, each agency, before taking an action, must determine whether the proposed action will occur in a floodplain.
If the action will occur in a floodplain, the agency must consider alternatives to avoid adverse effects and incompatible development in the floodplain. If the agency finds that the only practicable alternative requires the action to occur in the floodplain, the agency must, prior to taking the action, design or modify the action in order to minimize potential harm to or within the floodplain. Additionally, the agency must prepare and circulate a notice explaining why the action is proposed to be located in the floodplain. Particularly relevant to FEMA, the Executive Order also requires agencies to provide appropriate guidance to applicants for grant funding to encourage them to evaluate the effects of their proposals in floodplains prior to submitting grant applications.
Executive Order 11988 requires agencies to prepare implementing procedures in consultation with the Water Resources Council (WRC),
FEMA's grant programs that fund new construction, substantial improvement, or repairs to address substantial damage are authorized under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5121
Consistent with the National Flood Insurance Act, the Flood Disaster Protection Act, and NEPA, FEMA promulgated regulations implementing Executive Order 11988 at 44 CFR part 9, “Floodplain Management and Protection of Wetlands.”
Pursuant to section 8 of Executive Order 11988, part 9 does not apply to assistance provided for emergency work essential to save lives and protect property and public health and safety, performed pursuant to sections 403 and 502 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5170b and 5192). In addition, FEMA applies part 9 programmatically to the National Flood Insurance Program (NFIP)
Below FEMA outlines the existing 8-step decision-making process that the agency currently follows in applying Executive Order 11988 to its actions:
FEMA follows a specific regulatory sequence in order to make its floodplain determination. First, FEMA must consult the Flood Insurance Rate Map (FIRM), the Flood Boundary Floodway Map (FBFM), and the Flood Insurance Study (FIS) for the area.
Pursuant to 44 CFR 9.11(d), FEMA will not allow new construction or substantial improvement in a floodway and will not allow new construction in a coastal high hazard area, except for a functionally dependent use
In the aftermath of Hurricane Sandy, the President issued Executive Order 13632,
In June 2013, the President issued a Climate Action Plan
On January 30, 2015, the President issued Executive Order 13690, “Establishing a Federal Flood Risk Management Standard (FFRMS) and a Process for Further Soliciting and Considering Stakeholder Input.”
FEMA, acting on behalf of the Mitigation Framework Leadership Group, published a
On August 22, 2016, FEMA published an NPRM entitled “Updates to Floodplain Management and Protection of Wetlands Regulations To Implement Executive Order 13690 and the Federal Flood Risk Management Standard” in the
On August 15, 2017, the President issued Executive Order 13807 (“Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects”) which revoked Executive Order 13690.
On May 20, 2021, the President issued Executive Order 14030 (“Climate-Related Financial Risk”)
The FFRMS is a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains and wetlands.
Under the FFRMS, a Federal agency may establish the floodplain for actions subject to the FFRMS using any of the following approaches:
•
•
•
•
Each of the approaches is described in further detail below.
The Guidelines state that for riverine flood hazard areas agencies may select either the FVA, or 0.2 percent annual chance flood elevation approach (or a combination of approaches, as appropriate) when actionable science is not available and an agency opts not to follow the CISA. It states that the agency is not required to use the higher of the elevations but may opt to do so. The elevation standards of the FFRMS are not intended to supplant applicable State, Tribal, territorial, or local floodplain protection standards. If such standards exceed the FFRMS, an agency should apply those standards if the agency determines the application of the standards is reasonable in light of the goals of Executive Order 11988, as amended.
When Executive Order 13690 was issued, and again when it was reinstated with Executive Order 14030, FEMA evaluated the application of the FFRMS with respect to its existing authorities and programs. The FFRMS establishes a flexible standard to improve resilience against the impact of flooding—to design for the intended life of the Federal investment. FEMA supports this principle. Between 1980 and 2021, the United States experienced 35 flooding disaster events, each with damages totaling over $1 billion or more, and a total of $164.2 billion in damages for those 35 flooding disasters.
The current floodplain policy was designed to accept a specific level of flood risk utilizing the 1 percent or 0.2 percent annual chance floodplains. However, these values do not incorporate changing future conditions caused by increasing severity of flooding and other associated issues such as coastal erosion. The result is that the current level of the 1 percent annual chance and 0.2 percent annual chance flood elevation can underestimate the flooding risk to a particular action and leave communities at higher risk to future flooding events.
Where CISA is available and actionable, the risk of flooding can be determined based on climate science to identify the appropriate level of risk protection for an action based on factors such as local flood characteristics, criticality of the action, and planned lifespan of the action. As CISA is based on the available and actionable science for a specific location and action, the result is a determination of the appropriate level of resiliency to design minimization measures. Other methods may lower the flood risk as they are above the current floodplain policy, but in some instances, projects may be built to a higher resiliency than required (overbuilt) or to a lower resiliency than needed (underbuilt).
FEMA intends to implement the FFRMS and the Revised Guidelines through this proposed rule and supplementary policy, which would (1) add or revise definitions to be consistent with those included in Executive Order 11988, as amended, and the Revised Guidelines to make them more accessible to stakeholders; (2) incorporate the use of the FFRMS approaches for establishing the floodplain into FEMA's existing 8-step process; and (3) include the requirement to use natural features and nature-based approaches, where possible, when developing alternatives to the proposed action. These revisions also update other sections of the 8-step process to reflect current FEMA policies and
FEMA proposes to implement the FFRMS by adopting the flexible framework detailed in the Revised Guidelines. Under this proposal, FEMA would provide additional guidance that addresses which approach FEMA would use for different types of actions and how FEMA would tailor its application of the various approaches depending on
For the reasons stated below, FEMA's current proposed supplementary policy proposes a different approach. Specifically, FEMA's current proposed supplementary policy prefers the CISA floodplain where data is available and actionable. Where CISA data is not available and actionable, the supplementary policy selects Where CISA data is not available and actionable, the supplementary policy selects either the FVA or 0.2PFA to establish the floodplain. Specifically, for critical actions, the supplementary policy requires use of the higher of the FVA+3 or 0.2PFA. For non-critical actions, the supplementary policy requires the use of the lower of the FVA+2 or 0.2PFA. For actions not subject to the FFRMS, the floodplain would continue to be the 0.2 percent annual chance floodplain for critical actions and the 1 percent annual chance floodplain for non-critical actions. Other FEMA requirements to follow consensus codes and standards
The FVA, however, is not without challenges. First, while application of the FVA relies on data that is more available and readily accessible, it is not always the most suitable information to inform flood risk. Although FVA uses a fixed freeboard value across the nation, the FVA results in widely varying impacts to the current and future risk to the project. In some locations, applying the FVA+3 reduces the chance of being impacted by current flooding conditions by 2 times, while in other cases applying the FVA might reduce such chances by 10 times or more.
For critical actions, FEMA is proposing to utilize elevations determined by applying CISA so long as that elevation is at least the elevation of the 0.2PFA. Under this proposal, FEMA could choose to allow use of the CISA, even if the resulting elevation is lower than the application of the FVA. This approach would give FEMA and its recipients more flexibility in implementing the standard, would enable FEMA and its recipients to build to an elevation based on the best available science taking criticality into account, would ensure adequate protection in those areas that are projected to experience future flood elevations beyond those identified using the FVA or 0.2PFA, and would provide a pathway to relief for those areas that experience declining flood risks.
Similarly, for non-critical actions, FEMA is proposing to utilize elevations determined by applying CISA so long as that elevation is at least the elevation of the 1 percent annual chance flood elevation. Combined, these options would balance the objectives that applicants are building in an equitable manner to the most protective level based on the best available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science without overbuilding and would eliminate the potential for a scenario where an applicant was allowed to build to a lower elevation than previously required for critical and non-critical actions under FEMA's current implementation of Executive Order 11988.
As explained above, FEMA understands that the availability and actionability of data is a key factor in completing this analysis in a consistent, equitable manner. Since the introduction of the CISA in 2015, additional data has become available to better inform CISA.
For coastal floodplains, one of the primary considerations associated with CISA is determining what the projected
In addition to the data challenges, there are a number of factors in deciding how to apply the CISA that might result in a decision-making process that could unnecessarily delay recovery in the wake of a disaster event for non-critical actions. The Revised Guidelines recommend that the CISA methodology account for project-specific factors such as the criticality of the action, the risk to which the action will be exposed, the anticipated level of investment, and the lifecycle of the action.
Alternatively, FEMA could choose to require use of the highest standard for all actions, regardless of criticality. As explained above, while this approach would ensure that applicants were building all actions to the most protective level, this approach may lead to overbuilding and thus not be the most cost-effective, equitable approach particularly for non-critical actions. FEMA believes that its proposed approach is sufficiently protective of all actions and would be less expensive and complex to administer and implement than the alternative approach described above as this alternative approach would always require a determination of elevation under all three approaches before a project could proceed; nonetheless, FEMA welcomes comment on this alternative approach.
FEMA also considered requiring the use of the 0.2PFA when CISA is not available for non-critical actions rather than the lower of the 0.2PFA or FVA. As explained above, FEMA notes the challenges with the limited national availability of information on the 0.2 percent annual chance flood elevation and the additional costs associated with producing this information when not yet available. Additionally, in coastal areas, the FFRMS requires Federal agencies to use the FVA as the minimum elevation when not using the CISA, if the 0.2 percent annual chance flood information depicted on FEMA's regulatory products considers storm-surge hazards but not wave action, and wave action data cannot be obtained from other sources. This requirement is essential to ensure the effectiveness of this resilience standard. Only some areas have 0.2PFA with wave action information. Finally, there could also be equity concerns related to underbuilding or overbuilding to this standard, as again communities seeking to rebound quickly and effectively from a disaster may struggle to pay the additional costs required to build to a higher resilience standard than might be necessary if FEMA were to instead apply the CISA, thus unnecessarily delaying disaster recovery. Alternatively, communities may be more vulnerable to future flooding and therefore repair expenses where building to a lower resilience standard under the FVA than if FEMA were to apply CISA. Given the challenges with information availability and costs, FEMA is not proposing the 0.2PFA as the exclusive alternative for non-critical actions when CISA is not available and actionable; nonetheless, FEMA welcomes comment on this alternative approach.
Based on the foregoing, FEMA proposes to focus on the best available and actionable information to inform current and future flood risk, the type and criticality of the action, and equity when determining the approach to utilize for the floodplain determination. Where available and actionable, FEMA proposes to leverage the CISA to establish the floodplain for both critical and non-critical actions. Where the CISA is not available and actionable, the agency proposes to use the lower of the FVA or 0.2PFA to establish the floodplain for non-critical actions and the higher of the FVA floodplain or the 0.2PFA for critical actions. Where the 0.2PFA is not available, or where wave action is not addressed in the 0.2PFA, the FVA is proposed for critical actions. This proposal balances flexibility with standardization, is consistent with FEMA's encouragement to communities to adopt more resilient floodplain management standards and reflects the priority that FEMA places on ensuring adequate planning for critical actions
Requiring the use of the higher of the FVA floodplain or the 0.2PFA floodplain for critical actions where CISA is not available and actionable is consistent with the Revised Guidelines' direction that agencies use higher standards for actions that they determine to be critical actions.
The Revised Guidelines further recognize the importance of consideration of impacts to vulnerable populations, including those at risk to impacts of flooding due to their location or because they are overburdened, lack resources, or have less access to resources.
In addition to seeking comments on FEMA's proposed approach to implementation generally, FEMA specifically seeks public comments on the impact of the proposed elevation requirement
In light of the potential community impact of elevating housing and other buildings, along with the challenges associated with the traditional options for making elevated buildings accessible (
The CISA is established using the best available, actionable climate-informed science. The Revised Guidelines provide guidance to agencies on the application of the CISA approach in coastal and riverine areas.
FEMA recognizes that the CISA is a developing process and that there is uncertainty in the considerations and factors that will come up during an CISA analysis. As such, FEMA is not able to develop an exhaustive set of regulatory criteria for determining whether a given methodology is appropriate. However, FEMA recognizes that regulatory transparency reduces uncertainty for its recipients, and it will provide further guidance and information in the future, as appropriate, as the agency's experience in implementing CISA grows.
Appendix H of the Revised Guidelines provides the following criteria to define the CISA, which FEMA will consider when developing further guidance and information: (1) Uses existing sound science and engineering methods (
The FFRMS and Revised Guidelines describe the FVA elevation as the addition of 2 or 3 feet to the 1 percent annual chance flood elevation. FEMA would leverage the process described in proposed § 9.7(c) to search for the best available flood hazard information to establish the 1 percent annual chance flood elevation. This process recognizes that information on flood hazards at proposed sites may range from detailed data obtained from FEMA regulatory products to information which approximates the geographic area of the floodplain, to areas with no information. Where FEMA has issued a regulatory product, FEMA could obtain the flood elevation from the regulatory product. FEMA may also seek detailed information from the list of sources in proposed § 9.7(c)(3)(i)-(x).
The 0.2PFA is the elevation of the 0.2 percent annual chance flood. Where FEMA proposes to use this approach, the agency would follow the same process to establish the 0.2 percent annual chance flood elevation as it would to establish the 1 percent annual chance flood elevation, utilizing the best available information. FEMA would first rely on the 0.2 percent annual chance flood elevation from the best available information, including information reported in a FEMA regulatory product, then seek information from additional sources, before finally seeking the assistance of an engineer.
As noted above, this proposed rule would implement Executive Order 11988, as amended, the FFRMS, and the Revised Guidelines as part of FEMA's floodplain management regulations while also updating FEMA's 8-step process. Below, we provide a brief summary of a number of the major provisions of the proposed rule, followed by a section-by-section description of these and other changes.
FEMA proposes to amend § 9.3 to remove the authorities section as redundant, and to replace it with a severability section. In the event that any portion of the proposed rule is declared invalid, FEMA intends that the remaining provisions of 44 CFR part 9 be severable. A severability clause is a standard legal provision. It indicates FEMA's intent that if a court finds that a specific provision of a rule is unlawful, the court should allow the remainder of the rule to survive. Those provisions that are unaffected by a legal ruling can be implemented by an agency without requiring a new round of rulemaking simply to promulgate provisions that are not subject to a court ruling.
FEMA proposes to amend § 9.4 to reflect the new definitions required by the FFRMS and Revised Guidelines while also updating other definitions to clarify terms and leverage common usage that has evolved since the regulation was issued. As noted above, the most significant definitional change introduced by the FFRMS is the change to the meaning of “floodplain.” As discussed in more detail below, in order to harmonize this change in § 9.4 FEMA proposes to revise a number of existing definitions and remove other definitions. In addition, FEMA proposes to revise the remaining sections of 44 CFR part 9 that refer generally to the floodplain or refer specifically to the base (or 100-year) floodplain or the 500-year floodplain, for clarity.
As noted above, the first Step in the 8-step process is to determine whether the proposed action is in the floodplain. Because Executive Order 11988, as amended, and the FFRMS revise the definition of the “floodplain” that must be used for “Federally funded projects,” FEMA proposes to revise the first Step to require FEMA to first determine whether the proposed action falls within the definition of an “action subject to the FFRMS.” Under the proposed rule, if FEMA determines that the action is a Federally Funded Project,
Executive Order 11988, as amended, requires that agencies use, where possible, natural systems, ecosystem processes, and nature-based approaches in the development of alternatives for Federal actions in the floodplain. FEMA proposes to incorporate this requirement into § 9.9, which addresses the requirement to consider practicable alternatives when determining whether to locate an action in the floodplain. This requirement applies regardless of whether the proposed action is a FEMA Federally Funded Project. To further explain this requirement, FEMA proposes to add a definition of “nature-based approaches,” meaning features designed to mimic natural processes and provide specific services such as reducing flood risk and/or improving water quality. FEMA also proposes to add a definition of “natural features” meaning the characteristics of a particular environment that are created by physical, geological, biological, and chemical processes and exist in dynamic equilibrium.
The use of natural features and nature-based approaches in consideration of alternatives within floodplains and wetlands is consistent with the agency's priorities to promote the use of nonstructural flood protection methods, minimize the impact of its actions on the floodplain, and restore and preserve the natural and beneficial values served by floodplains as well as preserve and enhance the natural values of wetlands. In applying the 8-step process to its actions, FEMA has integrated factors into its impact analysis and minimization measures (Step 4 and Step 5) to identify those opportunities for beneficial floodplain and wetland values, to include natural values related factors that prioritize water resource values, living resource values, and agricultural, aquacultural, and forestry resource values. Applying natural features or nature-based approaches as alternatives furthers the goals in 44 CFR part 9 and allows for FEMA to further encourage those actions that increase the natural and beneficial function of the floodplain.
FEMA proposes to revise the authorities section to reflect appropriate statutory and other authorities underlying the regulation.
FEMA proposes to add references to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Environmental Policy Act of 1969, and other relevant statutory authorities, and to add “as amended” to reflect amendments made to Executive Order 11988.
FEMA proposes to add language to paragraph (b) to reflect the policy that the United States must improve the resilience of communities and Federal assets against the impacts of flooding based on the best-available and actionable science. This statement of policy is complementary to the longstanding goals of Executive Order 11988 to reduce the risk of flood loss but reflects an updated Federal policy of resilience and risk reduction that takes the effects of changing conditions into account. FEMA also proposes to restructure paragraph (b)(2) by adding §§ 9.2(c) and 9.2(d). In § 9.2(c), FEMA proposes edits for clarity, while in § 9.2(d), FEMA proposes to reorder the agency's actions to prioritize minimizing the impact of floods on human health, safety, and welfare in this part.
In Section 9.3, FEMA proposes to remove the authorities as redundant because the authorities are cited at the beginning of Part 9. Instead, FEMA proposes to include a severability section.
FEMA believes that its authority to require an 8-step decision making process and incorporate the FFRMS into it is well-supported in law and policy and should be upheld in any legal challenge. However, in the event that any portion of the proposed rule is declared invalid, FEMA intends that the various provisions of 44 CFR part 9 be severable. The provisions are not so interconnected that the rule's efficacy depends on every one of them remaining in place—implementation of the different provisions is sufficiently distinct that FEMA's aim of updating the 8-step process and incorporating the FFRMS would still be furthered by maintaining the other provisions. For example, if a court were to find unlawful FEMA's inclusion of the FFRMS approaches in § 9.7(c), FEMA intends to retain the inclusion of consideration of nature-based approaches in the appropriate steps of the 8-step decision making process and all other amendments to the 44 CFR part 9 not affected by the court decision. Similarly, if a court were to find unlawful FEMA's chosen approach in the proposed policy, FEMA intends to retain the regulatory changes implementing the FFRMS.
In Section 9.4, FEMA proposes to add terms for “0.2 Percent Annual Chance Flood Elevation,” “0.2 Percent Annual Chance Floodplain,” “1 Percent Annual Chance Flood Elevation,” “1 Percent Annual Chance Floodplain,” “Action Subject to the FFRMS,” “Base Flood Elevation,” “Federal Flood Risk Management Standard (FFRMS),” “Federal Flood Risk Management Standard Floodplain,” “Federally Funded Project,” “FEMA Resilience,” “National Security,” “Nature-Based Approaches,” “Natural and Beneficial Values of Floodplains and Wetlands,” “Natural Features,” and “Support of Floodplain and Wetland Development.” FEMA proposes to remove the definitions of “Base Flood,” “Base Floodplain,” “Five Hundred Year Floodplain,” “Flood Fringe,” “Flood Hazard Boundary Map,” “Flood Insurance Rate Map,” “Flood Insurance Study,” “Mitigation Directorate,” “Natural Values of Floodplains and Wetlands”, “New Construction in Wetlands,” and “Support.” Lastly, FEMA proposes to revise the definitions of “Coastal High Hazard Area,” “Critical Action,” “Emergency Action,” “Flood,” “Floodplain,” “Functionally Dependent Use,” “Mitigation,” “New Construction,” “Orders,” “Practicable,” “Regulatory Floodway,” “Restore,” “Structures,” “Substantial Improvement,” and “Wetlands.”
Streamlining the references to FEMA's regulatory products would also align the regulatory language with the core statutory language that authorizes FEMA to publish determinations of Special Flood Hazard Areas (SFHAs) and flood elevations.
The current definition also states that wherever the term “floodplain” appears in part 9, if a critical action is involved, “floodplain” means the area subject to inundation from a flood having a 0.2 percent chance of occurring in any given year (500-year floodplain). FEMA proposes to remove this provision from the definition of floodplain because there is no longer a set requirement that an applicant use a particular approach to establishing the floodplain when there is a critical action. Instead, FEMA and the applicant must follow the sequence described in § 9.7(c) when making the floodplain determination. FEMA must determine whether the project meets the new definition of an “action subject to the FFRMS” in § 9.4. If the project is an action subject to the FFRMS, then FEMA must establish the floodplain by using one of the FFRMS approaches (which require the applicant to consider whether an action is a critical action). If the project does not meet the definition of an action subject to the FFRMS (
FEMA proposes to add that the floodplain may be more specifically categorized as the 1 percent annual chance floodplain, the 0.2 percent annual chance floodplain, or the FFRMS floodplain (as defined above). “Floodplain” is a flexible, general term, but in establishing the correct floodplain to use, it will be necessary to determine whether the action is an action subject to the FFRMS and whether it is a critical action.
FEMA proposes to add an effective date provision to this section, indicating that the revisions proposed to part 9, which implement the changes required by Executive Order 11988, as amended, the FFRMS, and Revised Guidelines, would apply to new actions for which assistance is made available pursuant to declarations under the Stafford Act that are commenced on or after the effective date of the final rule, and new actions for which assistance is made available pursuant to notices of funding opportunity that publish on or after the effective date of the final rule. This is to clarify that current part 9, including use of the 1 percent annual chance floodplain (or 0.2 percent annual chance floodplain for critical actions), would still apply to actions relating to declarations and funding opportunities issued prior to the effective date. Only new actions would be subject to revised part 9 so that the changes would not be applied to projects which have already been reviewed for compliance with Executive Order 11988 and may have incurred design expenses to meet the current floodplain management standards. Any actions associated with declarations under the Stafford Act that begin on or after the effective date of the final rule or any actions for which the notice of funding opportunity publishes on or after the effective date of the final rule would be subject to revised part 9, including the changes required under Executive Order 11988, as amended, the FFRMS, and the Revised Guidelines, such as determining the floodplain for the action and requiring the use of nature-based approaches, where possible, to mitigate harm when development in the floodplain is not avoidable. In paragraph 9.5(b)(1), FEMA proposes to add “as amended” to reflect amendments to Executive Order 11988.
FEMA proposes to update the citations to the Stafford Act sections and references to organizations and titles in paragraphs (c)-(g) as they are not current and reorganize the section for clarity and readability. FEMA proposes to eliminate current paragraph (c)(3) as unemployment assistance would not constitute an “action” under this part (see § 9.4). FEMA proposes to revise current paragraph (c)(6) to clarify that actions involving fire management assistance that include hazard mitigation assistance under sections 404 and 420(d) of the Stafford Act are subject to the 8-step process. Similar to the revision to § 9.7(c)(1), FEMA seeks to clarify where some actions may still be required to complete the 8-step process. FEMA also proposes to update current paragraph (c)(8) as it refers to a defunct title for the Individuals and Households Program and includes programs that no longer exist and restructure the paragraph to reflect current categories of assistance under this program that are not subject to the 8-step process. FEMA proposes to further update this section by removing private bridges from the 8-step process consistent with other exceptions to that process in the Individual Assistance program in current paragraph (c)(8)(i). This change aligns with the existing exemptions for all other forms of home repair and replacement under section 408 of the Stafford Act. FEMA will only provide funding for privately-owned access bridges damaged as a result of a Presidentially-declared disaster in cases where a FEMA inspection determines repairs are necessary to provide drivable access to a primary residence.
FEMA also proposes to revise current § 9.5(c)(12) to further provide that debris clearance and removal under section 502 of the Stafford Act is not subject to the 8-step process. FEMA is also proposing to add a citation to section 407 of the Stafford Act to accompany the reference to non-emergency disposal of debris in this same provision. In current paragraph (c)(13), FEMA proposes to make revisions to update the current monetary thresholds from $5,000 to $18,000 for actions under sections 406 and 407 of the Stafford Act.
FEMA proposes to relocate current paragraph (g) and redesignate it as paragraph (d), restructuring current paragraphs (d)-(f) to (e)-(g) respectively. FEMA believes this restructuring will make the section more readable and easier for stakeholders to understand. FEMA is also proposing to revise the structure and language in current paragraphs (d) and (g) to better explain the exceptions to the full 8-step process detailed in each paragraph. FEMA proposes to update the current monetary thresholds set in current paragraphs (d) and (g) similar to changes proposed to current paragraph 9.5(c)(13), described above, to reflect the current value of these dollar amounts and also require future changes to these amounts based on the Consumer Price Index for All Urban Consumers as published by the Department of Labor. As explained above, FEMA believes these edits would result in limiting applicability of the 8-step process appropriately based on inflationary increases in the cost of actions. FEMA is proposing the increase and future updates as smaller projects offer little, if any, opportunity for mitigation and the agency believes floodplain management resources are best devoted in areas where they will be most effective. By keeping actions under a certain amount either exempt or with a more streamlined/expedited floodplain management process, FEMA would maintain the intent of the Executive Orders to protect floodplains and wetlands while also ensuring appropriately streamlined, cost-effective, and equitable assistance to communities with smaller projects. FEMA is proposing to revise current paragraph (g)(2) to address actions subject to the FFRMS by changing the current text, which refers to new or substantially improved structures or facilities, to instead refer to new construction, substantial improvement, or repairs to address substantial damage of structures or facilities. FEMA is also proposing to revise current paragraph (g)(3) to include facilities or structures on which a flood insurance claim has been paid. This addition would provide consistency with language existing in current paragraph (d)(4)(iii) and ensure that facilities or structures which have previously sustained damage from flooding on which a flood insurance claim has been paid will be subject to the full 8-step process. As FEMA has already provided funding to recover from prior flood damage on these facilities and structures, the agency believes the full 8-step process is required to ensure any additional funds provided increase resilience against flooding.
FEMA proposes to delete current paragraph (d)(1), consistent with the proposed change above to exempt private bridges from the 8-step process entirely. FEMA also proposes to delete current paragraph (d)(2). The current regulatory language allows for an abbreviated 8-step process for small project grants under the PA program
In current paragraph (e), FEMA proposes to update the responsible official from Director to Regional Administrator as this authority has been delegated to Regional Administrators and make other clarifying edits to reflect current agency terminology in that paragraph as well as current paragraphs (f)(1) and (f)(2). FEMA also proposes clarifying edits in current § 9.5(f)(1) for readability and to eliminate the prime two example references. As explained above in the definitions, FEMA believes that these types of specific examples are best addressed in guidance that can evolve as issues arise and better assist stakeholders with particularly nuanced situations. Further, these specific examples relate to regulatory provisions (current §§ 9.9(e)(6) and 9.11(e)) that FEMA proposes to remove from this rule.
Section 9.6 sets out the floodplain management and wetlands protection decision-making process to be followed by FEMA in applying Executive Orders 11988, as amended, and 11990 to its actions. FEMA proposes a clarifying edit to § 9.6(a) that would delete redundancy. Paragraph (b) of § 9.6 lays out the eight Steps the agency must follow. Step 1 states that FEMA will determine whether the proposed action is located in the 100-year floodplain or, for critical actions, the 500-year floodplain. FEMA proposes to remove
Requiring the use of natural features and nature-based approaches, where possible, in consideration of alternatives within or affecting floodplains and wetlands is consistent with the agency's priorities to promote the use of nonstructural flood protection methods, minimize the impact of its actions on the floodplain, and restore and preserve the natural and beneficial values served by floodplains as well as preserve and enhance the natural values of wetlands (44 CFR 9.2). In applying the 8-step process to its actions, FEMA has integrated factors into its impact analysis and minimization measures (Step 4 and Step 5; 44 CFR 9.10 and 9.11) to identify those opportunities for beneficial floodplain and wetland values, to include natural values related factors (44 CFR 9.10(d)(2)) that prioritize water resource values, living resource values, and agricultural, aquacultural, and forestry resource values. Requiring natural features or nature-based solutions as alternatives, where possible, furthers the goals in 44 CFR part 9 and allows for FEMA to further encourage those actions that increase the natural and beneficial function of the floodplain.
FEMA also proposes revisions to Step 5 to clarify that the agency must minimize potential adverse impacts within floodplains and wetlands under Step 4, including minimizing the potential direct and indirect support of floodplain and wetland development identified under Step 4. While not a new requirement, revising this language would help clarify that direct or indirect support of floodplain or wetland development is an adverse impact the agency must consider as part of minimization. FEMA believes these edits would help ensure consistency of use throughout part 9 and reduce stakeholder confusion. Finally, FEMA proposes a minor edit for readability in Step 6 (removing the word “the” in the phrase, “the hazards to others”).
Current § 9.7 establishes FEMA's procedures for determining whether any action as proposed is located in or affects a floodplain or a wetland. FEMA is proposing to revise this section to add procedures for identifying the FFRMS floodplain and corresponding elevation. FEMA is also proposing to revise this section's paragraph structure for clarity.
In current and proposed paragraph (a), FEMA proposes minor conforming edits. As in § 9.6, FEMA proposes to simply refer to “floodplain” rather than the current regulatory text's “base floodplain” or “500-year floodplain” references and direct the reader to paragraph (c), because the Revised Guidelines and the FFRMS's flexible framework for determining which floodplain is appropriate depending on the type and criticality of the action means the floodplain must be established using the process set forth in paragraph 9.7(c).
FEMA proposes to reorganize current paragraph (b) for clarity. In proposed paragraph (b)(1), FEMA proposes to replace a reference to “the Orders” with a reference to “this part,” for clarity. In proposed paragraph (b)(1)(i), FEMA proposes to add the words “Federal action” to make clear that the goal is to avoid Federal action, specifically, in a floodplain or wetland location unless they are the only practicable alternatives consistent with the agency's requirements under part 9. This proposed change would reiterate that the focus of the 8-step process is on Federal actions.
FEMA is also proposing to relocate to § 9.7(c) the statement that in the absence of a finding to the contrary, FEMA may assume that a proposed action involving a facility or structure that has been flooded is in the floodplain. FEMA proposes this change for clarity. In addition, Paragraph (b) of § 9.7 currently states that information about the 1 percent annual chance (100-year) and 0.2 percent annual chance (500-year) floods may be needed to comply with the regulations in part 9. In proposed paragraph (b)(2), FEMA proposes to update this statement for simplicity, referencing the floodplain determination process in § 9.7(c) in revised paragraph (b)(2) instead of referencing the 100-year and 500-year floods.
Current paragraph (b) includes a list of “flooding characteristics” that the Regional Administer “shall” identify, “as appropriate.” For clarity, FEMA proposes in new paragraph (b)(3) that the Regional Administrator “may” identify “current and future” flooding characteristics, “as applicable.” These proposed changes are consistent with the Revised Guidelines. FEMA prefers to avoid the use of the term “shall,” which suggests a mandatory requirement for the Regional Administrator to identify all of the additional flooding characteristics listed. FEMA's current practices do not require this level of rigidity and FEMA proposes the identification of these characteristics to be within the discretion of the Regional Administrator. FEMA is also proposing to add language for the agency to consider both current and/or future flooding characteristics by adding “current and future” to the additional flooding characteristics that may be considered. This addition clarifies the Regional Administrator's discretion to consider both current and future flooding characteristics consistent with the goals of FFRMS to improve the resilience of communities and Federal assets against the impacts of flooding
Paragraph (c) of § 9.7 outlines the process for determining if the proposed action is in the floodplain. As explained above, FEMA proposes to move language regarding previously flooded facilities and structures from the current paragraph (b) to proposed paragraph (c). FEMA also proposes to add the word “previously” to this provision for clarity. By moving this language to paragraph (c), FEMA would group this provision with the other floodplain determination provisions. If a proposed action does not involve a previously flooded facility or structure, FEMA would then begin the process set forth in the rest of paragraph (c) to determine whether the proposed action is in the floodplain. FEMA would determine whether the action is an action subject to the FFRMS as defined in § 9.4. If the action is an action subject to the FFRMS, FEMA would establish the floodplain and corresponding flood elevation
FEMA proposes to implement the FFRMS by adopting the flexible framework identified in Executive Order 11988, as amended by Executive Order 13690, in its entirety, instead of mandating a particular approach in its regulations. Under this proposal, FEMA would provide additional guidance (more readily capable of revisions and updates) that addresses which approach FEMA would generally use for different types of actions and how FEMA would tailor its application of the various approaches depending on the type and criticality of the action, while also considering the availability of actionable data, costs, and equity.
Consistent with Executive Order 11988 as amended by Executive Order 13690 and the Revised Guidelines, proposed § 9.7(c)(1)(iii) would allow FEMA to except from the FFRMS an action that is in the interest of national security, an emergency action, or a mission-critical requirement related to a national security interest or an emergency action. For example, if FEMA proposed to construct an underground bunker at one of its locations for national security reasons, to require the bunker to be elevated pursuant to the FFRMS could run contrary to the purpose of the bunker. It is important to note that an exception to using the floodplain for actions subject to the FFRMS under any of the reasons listed in this section does not exempt the action from the requirements of part 9 and Executive Order 11988 altogether. Instead, if one of FEMA's actions were excepted under this provision, FEMA would still be required to apply the appropriate floodplain established by proposed § 9.7(c)(3). FEMA does have the authority to exempt certain actions from any application of the requirements of Part 9 and Executive Order 11988, as amended, and those actions which are exempted are described in current §§ 9.5(c) and (e).
In proposed § 9.7(c)(2), consistent with existing requirements, FEMA proposes that if FEMA determines that the action is not an action subject to FFRMS, the proposed action would be evaluated using, at a minimum, the 1 percent annual chance floodplain for non-critical actions and, at a minimum, the 0.2 percent annual chance floodplain for critical actions.
In proposed § 9.7(c)(3), FEMA proposes to focus the analysis to establish the floodplain and corresponding elevation using the best available data and proposes that the floodplain and corresponding elevation determined using best available data must be at least as restrictive as FEMA's regulatory determinations under the National Flood Insurance Program. Current § 9.7(c)(1) requires FEMA to first consult the FIRM, FBFM, and FIS which ends the analysis if those “detailed” products are available. There are cases where FIRM, FBFM, and FIS are available for an area but do not provide flood elevations, 0.2 percent annual chance floodplain information, or other floodplain information required. The proposed changes allow FEMA to seek additional information even when a “detailed” product is available at a location. If those “detailed” products are not available, FEMA will then consult the FHBM. If that information is insufficient FEMA will seek other data as part of the floodplain and elevation analysis.
FEMA proposes to update this paragraph to reflect the Revised Guidelines' focus on the use of the best available information. While FEMA still intends to rely on FEMA products such as FIRMs, FBFMs, FISs, and FHBMs, FEMA understands that these products do not always provide all information needed for some locations and do not currently account for future conditions and other factors that better inform the floodplain determination for projects under part 9. In obtaining the best available information, FEMA is proposing to consider other information from FEMA, as well as information in a proposed updated list of sources to reflect those sources suggested in the Revised Guidelines, as well as sources the agency knows may have relevant additional information. Some of the proposed changes to this list are updates to reflect current titles, while other changes reflect newly available resources. Finally, if none of these sources have the information necessary to comply with part 9, the Regional Administrator may seek the services of a professional registered engineer. FEMA proposes clarifying edits in paragraph (d)(3) and (d)(4) of § 9.7.
FEMA proposes clarifying edits in § 9.8(a) and § 9.8(c)(1)-(c)(4) for readability. FEMA is adding the use of the internet for notice in this process by inserting § 9.8(c)(4)(i) to allow for notice through the internet or another comparable method. This proposed change would codify FEMA's current practice to incorporate notices on the agency's website at
FEMA proposes clarifying edits in § 9.9(a) for readability. In § 9.9(b)(2), FEMA proposes to add the requirement to use natural systems, ecosystem processes, and nature-based approaches, where possible, in the development of alternatives to the proposed actions in or affecting the floodplain and/or wetland. Under § 9.9, FEMA must make a preliminary determination (Step 3 of the 8-step process) as to whether the floodplain is the only practicable location for the action. Part of that analysis involves considering whether there are alternative actions that serve essentially the same purpose as the proposed action, but which have less potential to affect or be affected by a floodplain. Under this proposed rule, during the course of the aforementioned analysis, FEMA would consider whether an alternative using natural systems, ecosystem processes, and nature-based approaches might have less of an effect on the floodplain.
For consistency with the Revised Guidelines and the agency's use of the term in the current regulations, FEMA is proposing to add the cost of technology to the list of economic factors that FEMA considers under § 9.9(c)(3). By adding technology to this list, FEMA would clarify that the cost of technology is a factor to consider in determining practicability of alternatives and also emphasize the importance of the cost of technology and technological advancements in the analysis. FEMA is proposing to add § 9.9(c)(5) to reflect consideration of agency authorities in the practicability analysis, again for consistency with the Revised Guidelines. Additionally, FEMA is proposing clarifying edits throughout paragraph 9.9(c) for readability.
FEMA proposes to remove paragraph (d)(2) of § 9.9, which prohibits FEMA from locating a proposed critical action in the 500-year floodplain, as the language is redundant given the proposed changes to paragraph (d)(1) which explain that FEMA would utilize § 9.7(c) when making the floodplain determination. As noted above, FEMA would determine whether the project meets the new definition of an “Action subject to the FFRMS” in proposed § 9.4. If FEMA determined that the project is an action subject to the FFRMS, then FEMA would establish the floodplain by using one of the approaches detailed in proposed § 9.7(c)(1) (which requires the applicant to consider whether an action is a critical action). If FEMA determined that the project is not an action subject to the FFRMS, then FEMA would use, at a minimum, the 1 percent annual chance floodplain for non-critical actions and the 0.2 percent annual chance floodplain, at a minimum, for critical actions as explained in proposed § 9.7(c)(2). After FEMA completed that process, it would apply the appropriate floodplain to the remainder of the 8-step process. Therefore, FEMA proposes to revise paragraph (d)(1) to specify that the “floodplain” is the floodplain established in § 9.7(c), eliminate current paragraph (d)(2) as it is redundant, and redesignate current paragraph (d)(3) as new paragraph (d)(2).
FEMA proposes clarifying edits in paragraphs (e)(1)(i), (e)(1)(iii), and (e)(1)(iv) for readability and to eliminate specific references to the Orders in paragraphs (e)(3) and (e)(4). FEMA proposes to eliminate paragraph (e)(6). Paragraph (e)(6) of § 9.9 prohibits FEMA Resilience from providing a new or renewed contract for flood insurance for a structure if the Regional Director has chosen the “no action” option provided for in § 9.9(e)(5). This provision was temporarily suspended via a November 28, 1980,
FEMA proposes minor clarifying edits in paragraphs (a), (b), and (d) for readability and seeks to remove the reference to contacting regional offices of U.S. Fish and Wildlife Service from section 9.10(c) as this process will be further detailed in guidance. FEMA also proposes edits to paragraph 9.10(d)(2) for consistency with edits made in section 9.4 defining the natural and beneficial values of floodplains and wetlands.
FEMA proposes minor clarifying edits in paragraph (a). In paragraph (c)(1), FEMA proposes to clarify that the minimization provisions require the agency to minimize potential harm to lives and the investment at risk from flooding based on flood elevations established by § 9.7(c). This change first helps further explain that the potential harm to be minimized must be from flooding and that the potential harm is based on flood elevations established by § 9.7(c). This proposed revision removes the reference to the base flood and the 500-year flood from paragraph 9.11(c) and instead references the floodplain as established in § 9.7(c) consistent with other changes in the regulation to reflect the revised process described in § 9.7 when making the floodplain determination.
In paragraph (d), FEMA proposes to revise the text to reflect that the minimization standards are applicable to all of FEMA's grant programs. Currently, § 9.11(d) states that the minimization standards are applicable to only FEMA's implementation of the Disaster Relief Act of 1974. Some of FEMA's grant programs are authorized under other legislation.
In paragraphs (d)(2) and (d)(3)(i), FEMA proposes to specifically require elevation of the lowest floor of a structure to the floodplain established under § 9.7(c) during the construction of new or substantially improved structures. As described above, FEMA must follow the revised process described in § 9.7 when making the floodplain determination. FEMA must determine whether the project meets the new definition of an “action subject to the FFRMS” in § 9.4. The definition of “action subject to the FFRMS” is an action where FEMA funds are used for new construction, substantial improvement, or to address substantial damage to a structure or facility.
In paragraph (d)(4), FEMA proposes minor clarifying edits and to add clarifying terminology consistent with changes proposed to § 9.4 definitions of the base flood and base floodplain. FEMA also proposes to provide that encroachments or other development within a floodway that would result in an increase in flood elevation, rather than in flood levels, are prohibited. FEMA also proposes two further changes to help better address the concern of flood elevation increase because of such development. As revised, paragraph (d)(4) would provide that the increase in elevation must not be more than the amount designated by the NFIP or, as indicated later in this paragraph, the community, whichever is most restrictive. The current designated height of the elevation is no more than one foot at any point, which effectively restates the existing minimum standard under the NFIP.
FEMA proposes to update terminology from “disaster proofing” to “flood proofing and/or elevation” for clarity in paragraph (d)(9). For the same reasons as stated above for §§ 9.11(d)(2) and (d)(3)(i), in paragraph (d)(9), FEMA proposes to remove the reference to the base flood or, in the case of critical actions, the 500-year flood from paragraph (d)(9) and instead reference the floodplain as established in § 9.7(c) when describing the requirements for the replacement of building contents, material and equipment.
FEMA proposes to remove § 9.11(e) as the section's requirements are no longer required. At the time § 9.11(e) was promulgated, FEMA had discrepancies in coastal studies data that resulted in an underrepresentation of flood risk in some areas and this paragraph was meant to address the issues associated with those data discrepancies.
FEMA proposes a minor edit to paragraph (d)(6) to update language to reflect current program terminology. Specifically, FEMA proposes to change the term “Damage Survey Report” to “project application” to reflect the current document utilized by FEMA's grant programs.
FEMA proposes to revise this section to clarify that this part applies to certain specified types of temporary housing at private, commercial, and group site. Currently, this section only applies to private and commercial sites. FEMA is proposing to incorporate group sites into this section so that all of the temporary housing requirements under this part will fall within the same section, promoting ease of use and consistency in the application of the relevant steps of the 8-step process to each type of temporary housing site. Group sites are generally a more intensive action for the agency, as they involve the development of a new site on which to place housing and these actions are currently subject to the normal 8-step process required for most FEMA actions under current § 9.13(b) and (c)(2). However, FEMA's experience with group sites has demonstrated the importance of applying the considerations of Steps 3 (practicable alternatives) and 5 (minimization) to group sites as outlined in proposed § 9.13, rather than the full 8-step process. Group sites share the same need for expedited review as private and commercial sites given the urgent need for shelter after a disaster and the same consideration of other factors such as cost effectiveness, potential flood risk to a temporary housing occupant in a temporary housing situation, and a location close enough to the occupant's former residence to make it possible for the occupant to recover quickly. Given these same considerations, FEMA is proposing to add group sites to coverage under this section.
Throughout this section, FEMA proposes to update the terminology from “mobile home” to “temporary housing unit”
In proposed § 9.13(c)(1), FEMA proposes to specifically designate the use of the 1 percent annual chance (base) floodplain when evaluating whether to take a temporary housing action. In proposed § 9.13(c)(3), consistent with the aforementioned proposed changes to § 9.13(c)(1), FEMA proposes to revise the prohibition against housing an individual or family in the “floodplain” (which applies unless Regional Administrator has complied with the provisions in proposed § 9.9 to determine that the site is the only practicable alternative), by instead referring to the “1 percent annual chance (base) floodplain.” FEMA proposes to designate the 1 percent annual chance (base) floodplain as the floodplain of choice when taking temporary housing actions for several reasons: (1) the temporary nature of the assistance means there is not an opportunity to improve community resilience or floodplain management long term, which is the intent of the FFRMS; (2) expansion of the base floodplain to the FFRMS floodplain and prohibiting placement of temporary housing in the FFRMS floodplain may result in the temporary housing of individuals and families many miles from their homes, which is not practicable; and (3) it is not always feasible to elevate mobile homes when they are being placed as temporary housing.
Consistent with the proposed change to incorporate group sites into this section, FEMA proposes to add § 9.13(c)(4) to clarify that Step 4 of the 8-step process continues to apply to group sites. As explained above, group sites are generally a more intensive action for the agency, as they involve the development of a new site on which to place housing. By adding this paragraph, FEMA is proposing to ensure that step 4 of the 8-step process is applied to group sites in accordance with § 9.10 and that the effects of proposed actions are identified. FEMA is making this proposal because developing a new group site frequently involves development of infrastructure that could result in future development in the floodplain, to a greater extent than actions taken in existing private or commercial sites.
In the 2016 NPRM, FEMA proposed the addition of language to current paragraph (d)(4)(i) to require that actual elevation levels of temporary housing units would be based on manufacturer specifications and applicable Agency guidance. Specifically, the 2016 NPRM stated that it was not always practicable to elevate mobile homes to a given level and that the proposed rule would require that such homes be elevated to the fullest extent practicable. 81 FR at 57419. This NPRM does not seek to add that language because the current regulatory text in paragraph (d)(4)(i) requires these homes to be elevated “to the fullest extent practicable.” FEMA believes that what constitutes the fullest extent practicable will vary by location, temporary housing unit type, and a range of other variables not suited for comprehensive identification in the regulation. While FEMA's current practice is to consider manufacturer specifications, the agency is no longer seeking to codify that sole variable into the regulation and will instead clarify the variables to consider in agency procedures.
FEMA seeks to clarify that the agency will not temporarily place a housing unit unless the placement is consistent with the criteria of the NFIP or any more restrictive Federal, State, or local floodplain management standards. The NFIP requires that these units be elevated to at least the base flood elevation, absent a variance.
In proposed § 9.13(d)(2), FEMA also proposes to require the elevation of temporary housing units to at least the level of the FFRMS floodplain if FEMA intends to permanently install a unit that the agency is selling or otherwise disposing of that is located in the FFRMS floodplain.
The proposed requirement to elevate to the FFRMS floodplain when permanently installing these units as part of a sale may result in fewer temporary housing units being sold by FEMA as it will not always be practicable or feasible to elevate a temporary housing unit to the FFRMS requirement. However, this condition is not the only condition placed on the sale to applicants of temporary housing units that will be permanently installed. FEMA already places eligibility and sale conditions on these units to applicants. The sale of a temporary housing unit to an applicant currently requires the unit to be sold only to an individual or household occupying the unit, and requires that the site of the permanent placement comply with local codes and ordinances, and also complies with 44 CFR part 9.
Because this permanent installation constitutes a permanent housing solution for applicants as opposed to a temporary one lasting 18-24 months on average,
Additionally, FEMA is proposing to change the paragraph structure of § 9.13. No substantive changes are intended as a result of this restructuring.
FEMA proposes minor clarifying edits consistent with other proposed changes throughout this part. In § 9.14(b)(4), FEMA proposes clarifying edits consistent with other changes in the regulatory text, replacing the term “support” with the term “support of floodplain and wetland development.” These edits would be made for clarity and would be consistent with the proposed definition of “Support of Floodplain and Wetland Development” found in proposed § 9.4. As previously explained, this clarification helps further delineate the agency's requirement to consider the impacts to floodplains and wetlands and how decisions made in this part could directly or indirectly result in increased development in a floodplain or wetland. These edits would help eliminate confusion regarding the use of the term “support” in the regulatory text and ensure that actions taken under part 9 were done with the intent not to support floodplain and wetland development consistent with Executive Order 11988, as amended, and Executive Order 11990.
In paragraph 9.14(b)(5), which currently directs FEMA to focus on minimization through floodproofing and restoration of natural values where improved property is involved, FEMA proposes to also require consideration of elevation. Elevation may be an appropriate focus of the minimization analysis depending on the nature of the improved structure; the current text's emphasis on floodproofing and restoration of natural values, to the exclusion of elevation, is unwarranted. FEMA proposes to make changes to paragraph (b)(7)(ii) to eliminate reference to the “flood fringe” and instead explain this concept in terminology more consistently used throughout part 9. This change would reduce the overall technical terminology used in the regulation, making it easier for stakeholders to understand the key concepts around flood risk and the application of part 9.
FEMA proposes clarifying edits in § 9.16(b) to eliminate examples. The examples provided in current paragraph (b) do not necessarily reflect current agency terminology and, rather than limit the agency to current nomenclatures, FEMA proposes to eliminate references to the examples here. FEMA proposes edits in paragraph (b)(2) to clarify that the decision-making process set out in § 9.6 relates to the determination of whether to take action in floodplains or wetlands. FEMA is proposing this change to clarify that the decision made in § 9.6 is the decision to act (or not take action) in the floodplain or wetland, not a decision generally on eligibility for assistance. FEMA recognizes that the decision to take no action may result in no assistance being provided, but that decision is not the only decision point in § 9.6. FEMA also proposes additional clarifying edits in § 9.16(b)(3)-(5) and § 9.16(c) for readability.
FEMA proposes clarifying edits throughout this section for readability. Additionally, in paragraph (a), FEMA proposes to add “as amended” to reflect amendments to Executive Order 11988 and in paragraph (b), FEMA proposes to update the reference to the 1978 Guidelines to the full title for the Revised Guidelines. FEMA also proposes additional clarifying edits in § 9.17(b)(3)-(5) to stay consistent with § 9.16(b)(3)-(5).
FEMA also proposes clarifying edits throughout this section, including updating the references to the Assistant Administrator to refer to FEMA Resilience as the office within FEMA that will review Regional Administrator decisions that are appealed and adding “as amended” to reflect amendments to Executive Order 11988.
FEMA proposes to remove “Appendix A to Part 9—Decision-Making Process for E.O. 11988” in its entirety. The graphic is no longer accurate. Further, given the amendments to Executive Order 11988 and the Revised Guidelines, there is no utility to including the appendix in regulation. Instead, FEMA would include a revised version of the appendix, including the new decision-making process and the definition of the floodplain, in its policy implementing the FFRMS.
As explained above, FEMA previously sought to revise part 9 to incorporate the FFRMS. On November 17, 2015, FEMA released for public comment FEMA's Overview of FEMA's Intent to
The 10 comments received in support of the Intent came from a variety of sources, including local governments, associations, environmental action organizations, and commenters that chose to reply in their private capacity. The adverse comment stated that the CISA would be “a means to extort money from citizens based on a junk science forecasts/models of which so called projections have been outrageously inaccurate.” The commenter did not provide any support for the statement. FEMA disagrees with the commenter's assessment that Climate-Informed Science Approach (CISA) is based on “junk science forecasts/models.” Scientists compare models' projections of historical climate trends to actual historical climate data to measure the confidence of the models' abilities to accurately predict future climate conditions.
On August 22, 2016, FEMA issued a Notice of Proposed Rulemaking “Updates to Floodplain Management and Protection of Wetlands Regulations To Implement Executive Order 13690 and the Federal Flood Risk Management Standard.” 81 FR 57401. In response to the NPRM, FEMA received submissions from 78 commenters. Eighty percent of the comments were favorable. Favorable commenters noted the NPRM represented working “smarter, not harder,” and emphasized the importance of protecting taxpayer investments in areas that are vulnerable to recurring damage, considering future flooding from a sustainability point of view, and harmonizing Federal requirements with efforts already underway in States and local communities. FEMA also received comments that were unfavorable and suggestions for changes to the proposed rule. FEMA considered these comments and suggestions in drafting this new proposed rule. Specifically, FEMA is incorporating suggestions received to (1) resolve concerns in the definitions section by adding a definition for “actions subject to the FFRMS” and retaining the definition of “emergency actions” (as opposed to changing the defined term “emergency work,” as FEMA had proposed in 2016); (2) set the effective date of the rule's changes and clarify that current Part 9, including use of the base floodplain (or 500-year floodplain for critical actions), would still apply to actions that are in the planning or development stage or undergoing implementation as of the effective date of the final rule revising part 9 while only new actions would be subject to revised part 9 ensuring the changes would not be applied to projects which have already been reviewed for compliance with Executive Order 11988 and may have incurred design expenses to meet the current floodplain management standards in § 9.5(a)(3); and (3) update § 9.7(c) to provide additional clarity in the floodplain determination process and incorporate additional relevant sources of available information for the floodplain determination. FEMA is also incorporating suggestions to ensure flexibility in the implementation of FFRMS while also leveraging the best available and actionable data to enhance resilience by utilizing the CISA where data is available and actionable and providing options for the use of the FVA or 0.2PFA depending on the type of action involved and data availability and actionability for each of the remaining approaches, while also addressing equity and cost concerns.
In April 2021, FEMA issued a Request for Information (RFI) on FEMA's Programs, Regulations, and Policies. 86 FR 21325 (Apr. 22, 2021). The RFI sought input from the public on specific FEMA programs, regulations, collections of information, and policies for the agency to consider modifying, streamlining, expanding, or repealing in light of recent Executive Orders.
Executive Orders 12866 (Regulatory Planning and Review), as amended by Executive Order 14094 (Modernizing Regulatory Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and
The Office of Management and Budget (OMB) has designated this rule a “significant regulatory action” as defined under section 3(f) of Executive Order 12866, as amended by Executive Order 14094, but it is not significant under section 3(f)(1) because its annual effects on the economy do not exceed $200 million in any year based on the analysis conducted. Accordingly, OMB has reviewed it.
This Regulatory Impact Analysis (RIA) provides an assessment of the potential costs, benefits, and transfer payments from the Updates to Floodplain Management and Protection of Wetlands Regulations to Implement the Federal Flood Risk Management Standard (FFRMS) Notice of Proposed Rulemaking (NPRM). This analysis does not attempt to replicate the regulatory language of the proposed rule or any other supporting documentation. FEMA urges the reader to review the NPRM before reviewing this report.
The FFRMS is a flood resilience standard that is required for “Federally funded projects” and provides a flexible framework to increase resilience against flooding and to help preserve the natural values of floodplains and wetlands. A floodplain is any land area that is subject to flooding and refers to geographic features with undefined boundaries. FEMA proposes to incorporate the FFRMS into its existing processes, to ensure that the floodplain for an action subject to the FFRMS is expanded from the current base flood elevation to a higher vertical elevation and corresponding horizontal floodplain and that, where practicable, natural systems, ecosystem processes, and nature-based approaches would be considered when developing alternatives to locating Federal actions in the floodplain.
Under current FEMA regulations set out in 44 CFR part 9, the floodplain is defined as the 100-year floodplain (1 percent annual chance) for non-critical actions and as the 500-year floodplain (0.2 percent annual chance) for critical actions. New construction or substantial improvement of structures located in a floodplain must be elevated to or above the 1 percent annual chance flood level or base flood elevation (BFE). For critical actions, the new construction or substantial improvement of structures must be elevated to or above the 0.2 percent annual flood level. Non-residential structures may be appropriately floodproofed rather than elevated to meet the applicable flood level.
This rule proposes to implement the FFRMS policy in the expanded floodplain and codify implementation of the FFRMS policy in the current floodplain. FEMA has already implemented partial interim policies for PA and HMA, discussed in further detail below. Depending on the program, these programs apply the FFRMS policy either to the base floodplain, or to both the 100-year (base floodplain) and 500-year floodplain (for critical actions). Following guidance in OMB Circular A-4, FEMA assessed each impact of this rule against a pre-guidance baseline. The pre-guidance baseline is an assessment against what the world would be like if the relevant guidance (
At the time this RIA was conducted, these partial implementation policies had been in place for less than 6 months, which is an insufficient period to provide adequate data for analysis. Therefore, FEMA was unable to complete an in-depth analysis of the impact of these interim policies. Accordingly, FEMA used a pre-guidance baseline for this proposed rule to measure the impacts of the rule against the world without the interim PA and HMA policies.
Under the proposed rule, the Climate Informed Science Approach (CISA) would result in a flood elevation and corresponding horizontal expansion floodplain determination utilizing the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science. CISA is FEMA's preferred policy approach as FEMA believes it has the potential to be the best and most well-informed approach to building resilience in an equitable manner and ensuring a reduction in disaster suffering. CISA is the only approach that ensures projects are designed to meet current and future flood risks unique to the location and thus ensures the best overall resilience, cost effectiveness, and equity. The FFRMS considerations require FEMA to consider the type of criticality of the action involved, the availability and actionability of data, and equity concerns, as further explained in the current proposed supplementary policy. As actionable climate data are not currently available for all locations, FEMA is proposing the Freeboard Value Approach (FVA) and 0.2 Percent Annual Chance Flood Approach (0.2PFA) alternatives in the absence of actionable CISA data. Specifically:
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The floodplain established by the FVA is the equivalent of the 1 percent annual chance floodplain (also known as the 100-year flood), plus either 2- or 3-ft of vertical elevation, as applicable based on criticality, and a corresponding increase in the horizontal extent of the floodplain. The increased horizontal extent will not be the same in every case. When the same vertical increase is applied in multiple actions subject to the FFRMS in different areas, the amount of the increase in the horizontal extent of the respective floodplains will depend upon the topography of the area surrounding the proposed location of the action.
Projects that are located near the SFHA, but not in it, may be in the expanded FFRMS floodplain. Currently, there are no FEMA products depicting the boundary of the FFRMS floodplain. For this reason, FEMA and its interagency partners are developing various tools, like a FFRMS floodplain determination job aid and a web-based decision support tool, that would provide the agency a guide to determining the FFRMS floodplain and flood elevation levels to use for the projects. The web-based decision support tool would take into account the best available and actionable data. However, if this tool is not available to determine the FFRMS floodplain, FEMA would likely utilize the FFRMS floodplain determination job aid.
FEMA believes that the benefits of the rule—quantified and unquantified—would justify its costs. Flooding is the most common type of natural disaster in the United States,
The requirements of this rule would apply to grants for projects funding the new construction, substantial improvement, or repair of substantial damage under FEMA programs such as Individual Assistance (IA), Public Assistance (PA), Hazard Mitigation Assistance (HMA) programs, and grants processed by FEMA's Grants Programs Directorate (GPD) (involving grants for preparedness activities). The primary focus of this analysis is to estimate the costs and benefits resulting from a higher vertical elevation and associated horizontal expansion of the floodplain for specific projects paid for with Federal funds. The expected impacts of this proposed rule primarily result from the cost for the increased elevation or floodproofing requirements of structures in the FFRMS floodplain. The majority of these costs would be funded by FEMA through several grant programs. For the grant programs that have a cost-share requirement, FEMA grant recipients typically would bear about 25 percent of the elevation and floodproofing project costs. Additionally, FEMA expects to incur costs for administration of the proposed requirements, including training FEMA personnel.
To estimate how many projects would be subject to the requirements of this rule, FEMA used historical PA, IA, and HMA data. First, FEMA estimated the number of past new construction, substantial improvement, or repairs to substantial damage projects were in the existing floodplain. Next, FEMA relied upon data from samples of floodplain expansion at varying levels of freeboard in inland and coastal areas to estimate an average percentage expansion of the floodplain under each of the three FFRMS approaches. FEMA then multiplied the expansion percentages by the estimated number of projects in the current floodplain to estimate the number of projects that would be in the expanded floodplain under each of the FFRMS approaches.
To estimate the cost of the proposed elevation requirements, FEMA used reports from the National Flood Insurance Program (NFIP) to determine the increased cost per square foot associated with elevation and floodproofing. FEMA presents the costs as a range because of uncertainty about whether new construction projects would choose to floodproof or elevate.
Finally, to present the total impacts of the proposed rule, FEMA analyzed the impact of the FVA, 0.2PFA, and CISA for each of the programs, PA, IA, and HMA, as if each approach were the only FFRMS expansion option. This is because it is unknown exactly how many projects would be subject to the FVA, 0.2PFA, or CISA requirements under the proposed rule as this will continue to change with the addition of CISA data over time. Accordingly, FEMA estimated the costs of the proposed requirements for each of the approaches separately. This allowed FEMA to create a range for each approach. FEMA opted to use this methodology because it would allow FEMA to estimate the highest and lowest probable costs, transfers, and benefits associated with each of the FFRMS expansion options for each of the programs.
FEMA examined the number of projects that would be subject to the proposed requirements in the first 10 years after the rule's publication.
The table below provides the estimated number of structures and facilities affected by the proposed rule over the first 10 years, assuming that each approach is the only expansion option. Structures, which are walled and roofed buildings, would comply with the proposed FFRMS through elevating or floodproofing to the required height. Facilities, which are any human-made or human-placed items other than a structure such as roads and bridges, would require different mitigation measures in order to
The proposed rule would increase construction and resiliency standards for FFRMS-affected structures and facilities. Implementing these standards, through higher vertical elevation or floodproofing, or other mitigation measures, is new economic activity that would result from this rule. Accordingly, these compliance activities are a cost of this rule.
Using CISA as the primary approach, FEMA estimates that this proposed rule would affect 14,427 PA, IA, and HMA structures over the first 10 years, which would result in a total cost of between $142.1 million and $156.3 million, undiscounted, over the 60-year period of analysis. Discounted, the low estimate cost would be between $121.3 million and $100 million, using 3 and 7 percent respectively, with a 60-year annualized cost between $4.4 million and $7.1 million, using 3 and 7 percent. Discounted, the high estimate cost would be between $133.4 million and $109.9 million, using 3 and 7 percent respectively, with a 60-year annualized cost between $4.8 million and $7.8 million, using 3 and 7 percent respectively. These costs include additional training for FEMA staff as well as the total cost for additional elevation and floodproofing.
Because the cost to implement the proposed mitigation measures would be shared between FEMA and grant recipients according to the statutory cost share, there are also important distributional impacts. The majority of these costs would be borne by FEMA through additional grants (a transfer from FEMA to grant recipients). Grant recipients would bear the remaining cost. Using CISA as the primary approach, FEMA estimated that this proposed rule would affect 14,427 structures in the first 10 years, which would result in an increase in transfers from FEMA to grant recipients of between $109.2 million and $119.6 million, undiscounted, over the 60-year period of analysis. FEMA presents the change in transfer payments as a range because of uncertainty regarding whether new construction projects would be floodproofed or elevated. Discounted, the low estimate would be $93.2 million and $76.7 million, using 3 and 7 percent respectively, with a 60-year annualized increase in transfers between $3.4 million and $5.5 million, at 3 and 7 percent respectively. Discounted, the high estimate would be $102.1 million and $84.0 million, using 3 and 7 percent respectively, with a 60-year annualized increase in transfers between $3.7 million and $6.0 million, at 3 and 7 percent respectively. Grant recipients would be responsible for between $29.2 million and $31.7 million, undiscounted. Discounted, the low estimate would be $24.9 million and $20.5 million, using 3 and 7 percent respectively, with a 60-year annualized amount between $0.9 million and $1.5 million, at 3 and 7 percent respectively. Discounted, the high estimate would be $27.0 million and $22.2 million, using 3 and 7 percent respectively, with a 60-year annualized amount of $1.0 million and $1.6 million, at 3 and 7 percent respectively. Not included in these estimates are the additional grants FEMA would provide, and additional costs recipients would incur for their portion of the cost share, for any of the elevation and floodproofing costs that FEMA was unable to monetize.
FEMA was able to quantify benefits for a portion of projects affected by the rule. Using CISA as the primary approach, FEMA estimated that 1,173 PA Category E (Public Buildings and Contents) projects would be subject to the FFRMS in the first 10 years. Assuming a 59-inch Sea Level Rise,
Tables 6 and 7 show the estimated low and high costs, transfer payments, and benefits by FFRMS approach (assuming each approach is the only expansion option used), as well as by program for FEMA's primary approach.
Quantified estimates of the benefits of this rule are available for only PA Category E projects. Tables 6 and 7 show that the total 60-year benefits for PA Category E projects in the first 10 years is $43.5 million (7 percent, high). This benefit is for adding one foot of freeboard, assuming a 59-inch SLR. Although the cost for PA Category E projects is $84.8 million, this cost represents 5 feet of freeboard (FEMA's assumption for CISA).
FEMA provides PA grants to public and certain non-profit entities for rebuilding, replacement, or repair of public and non-profit structures and facilities damaged by disasters. PA projects that involve new construction, substantial improvement, or repairs to address substantial damage would be affected by this rule.
FEMA 44 CFR part 9 classifies projects as either structures or facilities. Under this proposal, a structure is a walled and roofed building, including mobile homes and gas or liquid storage tanks. Structures are subject to freeboard requirements to floodproof or elevate to a certain level above the BFE. Freeboard is the additional height above the BFE to which the structure is floodproofed or elevated for the purpose of reducing the risk of flood damage.
In contrast, facilities are any human-made or human-placed item other than a structure, such as roads and bridges. Facility mitigation measures are more varied and highly project-specific. For example, damage to roads during flood events can be caused by numerous events, such as erosion and scour, inundation by floodwater, or debris blockage. Likewise, the mitigation measures to address the damages can include a variety of approaches, such as installing low water crossings, increasing culvert size, installing a relief culvert, adding riprap to a road embankment, and many others.
Due to the vast diversity of facilities, the highly project-specific nature of facilities projects, and numerous options for making them resilient, FEMA could not estimate the costs of improving flood resiliency of facilities. Where facilities are new construction, substantial improvement, or substantially damaged, they will incorporate minimization measures that will consider the FFRMS flood elevation. However, floodproofing and elevation to a specific height would likely not be appropriate. FEMA cannot estimate the cost due to the variability of those measures, which may include a variety of approaches, such as installing low water crossings, increasing culvert size, installing a relief culvert, and many others. Facilities that are already located in the Special Flood Hazard Area (SFHAs) or 0.2 percent annual chance floodplain for critical actions must take resilience measures
For PA Category E projects, if FVA were the only expansion option, FEMA estimates the proposed rule would affect 1,090 projects over the first 10 years, which would result in a total cost of between $44.3 million and $53.2 million, undiscounted, over the 60-year period of analysis. The costs are incurred in the first 10 years of the 60-year period because that is when the investment in those projects takes place. Accordingly, FEMA estimates average annual costs in years 1-10 would range between $3.9 million and $5.9 million. The average Federal cost share for PA projects from 2012-2021 was 80.7 percent. Accordingly, FEMA estimates that it would cover 80.7 percent of the cost to elevate or floodproof PA projects, for a total of between $3.2 million and $3.7 million in additional grants per year for the first 10 years. Grant recipients would bear the remaining cost of between $0.9 million and $1.0 million per year for the first 10 years.
For PA Category E projects, if 0.2PFA were the only expansion option, FEMA estimates the proposed rule would affect 840 projects over the first 10 years, which would result in a total cost of between $39.5 million and $46.0 million, undiscounted, over the 60-year period of analysis. Because these costs are incurred in the first 10 years, FEMA estimates the average annual costs in years 1-10 would range between $3.2 million and $3.6 million. Using the historical average 80.7 percent Federal cost share, FEMA estimated that it would cover 80.7 percent of the cost to elevate or floodproof PA projects, for a total of between $3.2 million and $3.7 million in additional grants per year for the first 10 years. Grant recipients would bear the remaining cost approximately $0.8 million and $0.9 million per year for the first 10 years.
For PA Category E projects, if CISA were the only expansion option, FEMA estimates the proposed rule would affect 1,173 projects over the first 10 years, which would result in a total cost of between $88.9 million and $101.8 million, undiscounted, over the 60-year period of analysis. Because these costs are incurred in the first 10 years, FEMA estimates the average annual costs in years 1-10 would range between $8.9 million and $10.2 million. Using the historical average 80.7 percent Federal cost share, FEMA estimated that it would cover 80.7 percent of the cost to elevate or floodproof PA projects, for a total of between $7.2 million and $8.2 million in additional grants per year for the first 10 years. Grant recipients would bear the remaining cost of between $1.7 million and $2.0 million per year for the first 10 years.
IA grants are provided to individuals who, as a direct result of a disaster, have necessary expenses and serious needs that they are unable to meet through other means. IA is divided into housing assistance and other needs assistance. Other Needs Assistance under IA provides a financial assistance for medical, dental, childcare, funeral, personal property, transportation, or other necessary expenses or serious needs. Under Housing Assistance, FEMA may provide temporary housing assistance (financial assistance or direct assistance in the form of temporary housing units); a capped amount of financial assistance for the repair or replacement of disaster-damaged private residences; and, in rare circumstances, financial or direct assistance to construct permanent or semi-permanent housing.
The financial caps on housing repair or replacement assistance means IA grants generally do not fund new construction or substantial improvements. However, there are two types that would be affected by this proposed rule: IA Permanent Housing Construction (PHC) projects and sales and disposal of temporary housing units (THUs). PHC is Federal assistance that FEMA provides under IA for the purpose of constructing permanent housing where alternative housing resources are unavailable or scarce. IA also includes the sale and disposal of THUs, such as mobile housing units and recreational vehicles, and THUs located in the FFRMS floodplain would be subject to the requirements of this rule. FEMA regulations prohibit the floodproofing of residential structures at or below the BFE: elevation is the only option.
For IA, if FVA were the only expansion option, FEMA estimates the proposed rule would affect 2,650 structures over the first 10 years, which would result in a total cost of $511,822, undiscounted, over the 60-year period of analysis. The costs are incurred in the first 10 years of the 60-year period because that is when the investment in those projects takes place. Accordingly, FEMA estimates average annual costs of $51,182 in years 1-10. Since there is no cost share for IA, FEMA would fund the entire cost of elevating IA projects through grants.
For IA, if 0.2PFA were the only expansion option, FEMA estimates the proposed rule would affect 2,650 structures over the first 10 years, which would result in a total cost of $511,822, undiscounted, over the 60-year period of analysis. Because these costs are incurred in the first 10 years of the analysis, FEMA estimates the average annual cost in years 1-10 is $51,182. Since there is no cost share for IA, FEMA would fund the entire cost of elevating IA projects through grants.
For IA, if CISA were the only expansion option, FEMA estimates the proposed rule would affect 2,903 projects over the first 10 years, which would result in a total cost of $1,421,690, undiscounted, over the 60-year period of analysis.
FEMA provides HMA grants to States, territories, Federally-recognized Tribes, and local communities for the implementation of hazard mitigation measures to increase resiliency to disasters. HMA projects relating to flood mitigation mainly include elevation of structures, floodproofing of structures,
FEMA used data from HMA grant approvals for projects that include the elevation or floodproofing of structures from 2010-2019 and a multi-step process to estimate the range of costs for elevating or floodproofing these structures to the FFRMS.
For HMA, if FVA were the only expansion option, FEMA estimates the proposed rule would affect 9,492 structures over the first 10 years, which would result in a total cost of $21.6 million, undiscounted, over the 60-year period of analysis. These costs are incurred in the first 10 years of the 60-year period because that is when the investment in those projects takes place. Accordingly, FEMA estimates average annual costs in years 1-10 of $2.2 million. Using the 75 percent Federal cost share, FEMA estimated that it would cover 75 percent of the cost to elevate or floodproof HMA projects, for a total of $1.6 million in additional grants per year in years 1-10. Grant recipients would bear the remaining cost of $0.5 million per year.
For HMA, if 0.2PFA were the only expansion option, FEMA estimates the proposed rule would affect 9,447 structures in the first 10 years, which would result in a total cost of $21.3 million, undiscounted, over the 60-year period of analysis. Because these costs are incurred in the first 10 years of the analysis, FEMA estimates the average annual cost in years 1-10 would be $2.1 million. Using the 75 percent Federal cost share, FEMA estimated that it would cover 75 percent of the cost to elevate or floodproof HMA projects, for a total of $1.6 million in additional grants per year in years 1-10. Grant recipients would bear the remaining cost of $0.5 million per year.
For HMA, if CISA were the only expansion option, FEMA estimates the proposed rule would affect 10,351 structures over the first 10 years, which would result in a total cost of $48.1 million, undiscounted, over the 60-year period of analysis. Because these costs are incurred in the first 10 years, FEMA
The proposed rule would increase costs for certain IA, PA, and HMA program projects, as well as result in administrative costs for FEMA. FEMA expects minimal effects on grants processed by FEMA's GPD because these programs involve grants for preparedness activities and generally do not fund new construction or substantial improvement projects. Future FEMA facilities that may be located within the FFRMS floodplain would also be subject to the requirements of the proposed rule.
FEMA was unable to quantify the cost for increased resiliency standards for the 20,961 facility projects estimated to be affected in the first 10 years after the rule's publication. Additionally, FEMA was unable to quantify the cost for projects that may be diverted out of the floodplain, impacts to projects with existing basements, project delays, or forgone projects that may result from this rule.
Using CISA as the primary approach, FEMA estimates that the proposed rule would affect 14,427 PA, IA, and HMA structures over the first 10 years, which would result in a total cost of between $142.1 million and $156.3 million, undiscounted, over the 60-year period of analysis. The costs are incurred in the first 10 years of the 60-year period because that is when the investment in those projects takes place.
Because the cost to implement the proposed mitigation measures would be shared between FEMA and grant recipients according to the statutory cost share, there are also important distributional impacts. The majority of elevation and floodproofing costs would be borne by FEMA through additional grants (a transfer from FEMA to grant recipients). Grant recipients would bear the remaining cost. The below section shows the additional transfers from FEMA to grant recipients. Using CISA as the primary approach, FEMA estimated that this proposed rule would affect 14,427 structures in the first 10 years, which would result in an increase in transfer payments (
FEMA believes that the benefits of the proposed rule would justify the costs. FEMA has identified qualitative benefits, including the reduction in damage to properties and contents from future floods, potential lives saved, public health and safety benefits, reduced recovery time from floods, and increased community resilience to flooding. FEMA has also analyzed quantified benefits of one additional foot of freeboard for PA projects.
FEMA believes this proposed rule would result in savings in time and money from a reduced recovery period after a flood and increased safety of individuals. Generally, if properties are protected, there would be less damage, resulting in less recovery time. In addition, higher elevations would help to protect people, leading to increased safety. FEMA is unable to quantify these benefits.
In support of these benefits, FEMA uses the 2022 Benefits Analysis of Increased Freeboard for Public and Nonresidential Buildings in Riverine and Coastal Floodplains
Future conditions for the riverine analysis included two climate change scenarios: the Representative Concentration Pathways (RCP) 4.5 scenario and 8.5 scenario, which represent medium and low efforts to curb emissions, respectively. The study used these two climate change scenarios to evaluate the amount of increase or decrease in riverine flood elevations over the next 50 years. For the coastal analysis, the study included the impact of various sea level rise conditions in areas with wave heights less than 1.5-ft (flood zone A) that are subject to coastal storm surge. The sea level rise conditions replicated a 2016 evaluation considering 8-, 20-, 39- and 59-inch sea level rise by 2100. FEMA evaluates benefits associated with the rule using both RCP 4.5 and 8.5 scenarios, and three of the four sea level rise conditions: 8-, 39-, and 59-inches.
The 2022 report used FEMA's BCA Toolkit to calculate benefits for each year between 2023 and 2072 and then used these projections to calculate the present value benefits for each scenario.
According to this report, for critical facilities in coastal SFHAs, such as police stations and hospitals, inclusion of one additional foot of freeboard will provide increased protection and continuity of operations and would result in a quantifiable benefit. Elevating buildings would help to maintain community resiliency further into the future. The riverine analysis indicated that despite the large variation in the flood data for the 14 sites, inclusion of
FEMA used this study to estimate the benefits of an additional foot of freeboard for non-residential PA projects. FEMA was unable to use the benefits study to estimate the benefits for HMA and IA projects since HMA data could not be broken out by building types and IA data were limited to residential-related projects.
For FEMA's primary estimate, FEMA used 59 inches of SLR due to it being the closest SLR option to CISA+5-ft. CISA is the preferred approach for FFRMS if the data are available. Since 5 ft is equivalent to 60 inches (5 × 12 inches per foot), 59-inch SLR would be the closest SLR option that FEMA has available to use for this portion of the analysis. If FEMA used CISA for all PA Category E projects that were subject to the FFRMS with the assumption that there would be a 59-inch SLR, FEMA estimated that the present value benefits of one additional foot of freeboard for the 50-year useful life of 1,173 PA Category E projects undertaken during the first 10 years after the rule's publication would be between $55.2 million and $62.0 million, undiscounted. The low estimate would range between $47.1 million and $38.8 million, discounted at 3 and 7 percent respectively, with a 60-year annualized benefit of $1.7 million and $2.8 million, at 3 and 7 percent (See Table 15). The high estimate would range between $52.9 million and $43.5 million, discounted at 3 and 7 percent respectively, with a 60-year annualized benefit of $1.9 million and $3.1 million, at 3 and 7 percent. (See Table 16).
In Tables 15 and 16 below, FEMA shows the number of projects constructed each year (column 2), the present value of the benefits as of the year in which they were constructed (column 3), and the present value of the benefits as of the beginning of Year 1 using a 3 percent and 7 percent discount rate (columns 3 and 4, respectively). For example, the benefits shown in Year 1 represent the present value of the benefits for the 117 Category E projects constructed in Year 1 over their 50-year useful life (
For more in-depth review of these costs and benefits, please see the Regulatory Impact Analysis, which can be found in the docket for this rulemaking.
This section considers the effects that this proposed rule would have on small entities as required by the Regulatory Flexibility Act (RFA, 5 U.S.C. 601
FEMA prepared an Initial Regulatory Flexibility Analysis (IRFA) for this proposed rule. This analysis is detailed in this section and represents FEMA's assessment of the impacts of this proposed rule on small entities. Section 1 outlines FEMA's initial assessment of small entities that would be affected by the proposed regulations. Section 2 presents FEMA's analysis and summarizes the steps taken by FEMA to comply with the RFA.
The proposed rule would affect FEMA grant recipients that receive Federal funds for new construction, substantial improvement to structures, or to address substantial damage to structures and facilities. Many of these grants are available to local governmental jurisdictions and non-profit organizations. FEMA does not provide grants to for-profit businesses.
The following IRFA addresses the following requirements of the RFA:
(1) a description of the reasons why action by the agency is being considered;
(2) a succinct statement of the objectives of, and legal basis for, the proposed rule;
(3) a description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply;
(4) a description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record;
(5) an identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap, or conflict with the proposed rule;
(6) a description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes, and which minimize any significant economic impact of the proposed rule on small entities. Consistent with the stated objectives of applicable statutes, the analysis shall discuss significant alternatives such as: the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; the use of performance rather than design standards; and an exemption from coverage of the rule, or any part thereof, for such small entities.
The President issued Executive Order 11988 in 1977 in furtherance of the National Flood Insurance Act of 1968, as amended; the Flood Disaster Protection Act of 1973, as amended; and the National Environmental Policy Act of 1969 (NEPA). Executive Order 11988 requires Federal agencies to avoid, to the extent possible, the long- and short-term adverse impacts associated with the occupancy and modification of floodplains, where there is a practicable alternative. Executive Order 11988 requires agencies to prepare implementing procedures in consultation with the Water Resources Council (WRC), FEMA, and the Council on Environmental Quality (CEQ). The WRC issued “Floodplain Management Guidelines” (1978 Guidelines or Implementing Guidelines), the authoritative interpretation of Executive Order 11988. The 1978 Guidelines provided a section-by-section analysis, defined key terms, and outlined an 8-step decision-making process for carrying out the directives of Executive Order 11988.
After Hurricane Sandy it became clear to the Federal Government that there should be a reevaluation of the current flood risk reduction standards. The President issued Executive Order 13632, which created the Federal Interagency Hurricane Sandy Rebuilding Task Force (Sandy Task Force). Pursuant to direction from Executive Order 13632 to remove obstacles to resilient rebuilding, the Sandy Task Force reevaluated the 1 percent annual chance/100-year standard. In April 2013, the Sandy Task Force announced a new Federal flood risk reduction standard that required elevation or other floodproofing to one-foot above the best available and most recent base flood elevation and applied
In June 2013, the President issued a Climate Action Plan that directs agencies to take appropriate actions to reduce risk to Federal investments, specifically directing agencies to build on the work done by the Sandy Task Force and to update their flood risk reduction standards for “federally-funded . . . projects” to ensure that “projects funded with taxpayer dollars last as long as intended.” In November 2013, the President's State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience (Climate Task Force) convened, with 26 Governors, Mayors, and Local and Tribal leaders serving as members. After a year-long process of receiving input from States, Local, Tribal, Territorial (SLTT) governments; private businesses; trade associations; academic organizations; civil society; and other stakeholders, the Task Force provided a recommendation to the President in November 2014. In order to ensure resiliency, Federal agencies, when taking actions in and around floodplains, should include considerations of the effects of changing conditions, including sea level rise, more frequent and severe storms, and increasing river flood risks. The Climate Task Force also recommended that the best available climate data should be used in siting and designing projects receiving Federal funding, and that margins of safety, such as freeboard and setbacks, should be included.
On January 30, 2015, the President issued Executive Order 13690, which amended Executive Order 11988 and established a new flood risk management standard called the FFRMS. Executive Order 11988, as amended, and the FFRMS changed the Executive Branch-wide guidance for defining the “floodplain” with respect to “Federally funded projects” (
On February 5, 2015, FEMA, on behalf of the Mitigation Framework Leadership Group, published a
On August 22, 2016, FEMA issued a Notice of Proposed Rulemaking, “Updates to Floodplain Management and Protection of Wetlands Regulations To Implement Executive Order 13690 and the Federal Flood Risk Management Standard.” On August 15, 2017, Executive Order 13807 revoked Executive Order 13690. On March 6, 2018, FEMA withdrew its Notice of Proposed Rulemaking and proposed supplementary policy in light of the revocation of the Executive Order 13690. FEMA wrote that it would continue to seek more effective ways in its programs to assess and reduce the risk of current and future flooding and increase community resilience.
On May 25, 2021, Executive Order 14030 subsequently revoked Executive Order 13807 and reinstated Executive Order 13690, thereby reestablishing the FFRMS. The E.O. also states that the Revised Guidelines issued in 2015 were never revoked and remain in effect.
The FFRMS is a flexible framework to increase resilience against flooding and help preserve the natural and beneficial values of floodplains. Incorporating the FFRMS into FEMA regulations would ensure that FEMA expands flood risk management from the current base flood elevation to a higher vertical elevation and corresponding horizontal floodplain to address current and future flood risk and ensure that projects funded with taxpayer dollars last as long as intended. Several programs exist in order to assist with flood mitigation or recovery efforts after a flood.
FEMA is responsible for publishing information on floodplain areas and identifying special hazards. FEMA is also responsible for several grant programs that use Federal funds to assist in construction or reconstruction following a disaster, as well as grants for hazard mitigation and recovery. These grants can potentially be used for locations within a floodplain.
To meet the requirements of section 2(d) of Executive Order 11988, requiring agencies to issue or amend existing regulations and procedures to implement the Executive Order, FEMA promulgated regulations which are located at 44 CFR part 9. FEMA is revising 44 CFR part 9 to reflect the changes to Executive Order 11988 made via Executive Order 13690.
The objective of the proposed rule is to revise the regulations for locating actions subject to the FFRMS in an expanded floodplain to reduce the risk of flooding to those projects. In addition, for actions that are determined to be “critical actions” as defined by the proposed rule, the proposed rule would impose more stringent elevation and resiliency requirements. This is necessary to protect actions where even a slight chance of flooding is too great.
The rule would also require the use, where possible, of natural features and nature-based approaches when developing alternatives for consideration that would accomplish the same purpose as a considered action, but which have less potential to affect or be affected by the floodplain. Common examples of a nature-based approach would be replacing concrete drainage systems with natural drainage or covering an area with plants to absorb water and reduce runoff.
This rule would affect certain recipients of FEMA grants. These would primarily be PA and HMA grant recipients, which include States, Tribal governments, local governments, and certain non-profit organizations. The PA
FEMA has estimated that the FFRMS requirements would expand the floodplain between 5 percent and 43 percent based on a study
FEMA selected CISA as its primary approach to evaluate the impacts of this proposed rule. FEMA's accompanying policy proposes use of CISA as the preferred approach because it is the only approach that would ensure projects are designed to meet current and future flood risks unique to the location and thus would ensure the best overall resilience, cost effectiveness, and equity. FEMA does not have data detailed enough to estimate the average CISA level within the United States for this analysis. For CISA, FEMA evaluated a range from 1 to 10 feet of freeboard based on anticipated interagency tools that are currently in development and are projected to apply CISA in those rounded amounts as “climate-informed freeboard.” The 10-foot ceiling would account for the highest levels of anticipated sea level rise along the Gulf and Atlantic coasts. Depending on location, under CISA, some places may be required to elevate or floodproof to +1-ft above the 1 percent annual chance plain while other places may be required to use +10-ft above the 1 percent annual chance plain. However, there is no data or research to know what the required levels are or how many structures would be subject to the requirements. For this analysis, FEMA calculated the expanded floodplain using the mid-point +5-ft freeboard level, which FEMA estimates expands the floodplain by 26 percent, on average, in coastal areas.
FEMA considered using the minimum and maximum levels as alternatives to the mid-point level, but the minimum and maximum would not reflect the impacts of the rule accurately. FEMA did not use the minimum level because it would reflect a large number of structures not elevated or floodproofed to a high enough standard, when in reality, the rule would require them to be subject to a higher standard. If FEMA modeled all structures at the minimum standard, the costs would be underestimated compared to the true impact of the rule. The benefits of protecting the structures from flood would also be underestimated because at the minimum level. many structures would be left vulnerable to devastating flood damage. Likewise, FEMA did not use the maximum level because it would reflect a large number of structures elevated or floodproofed to a standard too high compared to what the rule would require. If FEMA modeled all structures at the maximum standard, the costs would be overestimated compared to the true impact. The benefits of protecting the structures from flood could potentially be overestimated, as well, and not reflect the true impact of the rule.
PA provides grants to States, Tribal governments, local governments and certain non-profit organizations for rebuilding, replacement, or repair of public and non-profit facilities damaged by disasters. Where such rebuilding, replacement or repair involves new construction, substantial improvement, and repair of substantial damage of structures in the expanded FFRMS floodplain, PA recipients would incur additional costs to comply with proposed elevation and floodproofing requirements. From 2012-2021, 930 individual PA Category E grant recipients received FEMA funding for substantial improvement floodproofing
HMA provides mitigation grants to States, Tribal governments, local governments, and certain non-profit organizations to, among other things, relocate property outside of the floodplain, or to elevate or floodproof structures to the flood level. FEMA proposes to apply the FFRMS to all actions subject to the FFRMS, and all structure elevation, mitigation reconstruction, and dry floodproofing projects. As noted in the Regulatory Evaluation, FEMA funded an average of about 84 HMA elevation, mitigation reconstruction, and floodproofing structure projects per year from 2010-2019.
With the 26 percent expansion of the floodplain, an additional 22 HMA projects per year (84 × 26 percent), for a total of 106 (84 + 22) projects, would be located in the 1 percent annual chance floodplain or expanded FFRMS floodplain. Assuming 43 percent
Facilities would not be required to floodproof or elevate but would instead need to be made resilient to the appropriate flood levels, which is highly project-specific nature and lack of data for such projects makes it exceedingly difficult to estimate costs. FEMA could not estimate the cost of this rule on small entities for facilities. However, FEMA conducted an analysis to estimate the number of small entities for affected facility projects based on historical data.
In an average year, FFRMS would impact about 1,181 PA Category C facilities. Based on a random sample of 92 projects,
In an average year, FFRMS would impact about 131 PA Category D facilities. Based on a random sample of 57 projects,
In an average year, FFRMS would impact about 254 PA Category F facilities. Based on a random sample of 72 projects,
In an average year, FFRMS would impact about 446 PA Category G facilities. Based on a random sample of 82 projects,
In an average year, FFRMS would impact about 84 HMA grant recipients received FEMA funding per year for minor flood controls and generator projects. Based on a random sample of 46 projects,
FEMA will not be changing the application process for its grant programs. The majority of the costs for the increased elevation or floodproofing requirements of structures in the FFRMS floodplain would be funded by FEMA through several grant programs. Small entities, like all entities, would be subject to additional costs not covered by these grants for the floodproofing, elevation of structures, and flood resiliency measures required by the proposed rule. For the purposes of this analysis, and based on historical data, FEMA presents the costs such that all projects would choose to elevate because of the additional level of safety elevation provides over floodproofing and a historically higher number of HMA projects that involved elevation as opposed to floodproofing.
The cost of elevating an existing structure is considerably higher than the cost of retrofitting the structure to be floodproofed. Floodproofing involves sealing off areas below the flood level so that water cannot enter or altering the use of these areas so that flood waters may pass through without causing serious damage. Non-residential structures, where elevation is not feasible, may be floodproofed rather than elevated. Additionally, floodproofing existing properties may be less costly than elevating an existing property. So, where a project may floodproof rather than elevate, costs may be lower for some projects than the costs presented here. However, for existing properties that choose to elevate rather than floodproof, costs may be higher for some projects than the costs presented here because the NFIP report cost estimates are for when freeboard is included in the design of a structure. New buildings would be evaluated for both dry floodproofing (preventing the intrusion of floodwaters into the building by using a system of waterproofing and shields) and elevation (constructing higher), while existing buildings would only be evaluated for dry floodproofing. FEMA requests comments on these assumptions.
As established above, FEMA estimates this rule would impact 40 small entity PA Category E projects annually. Using CISA as the primary approach, FEMA estimates that the total cost for the elevation and floodproofing requirements of this proposed rule for all PA Category E projects would be between $8,887,014 ($88,870,138 ÷ 10 years) and $10,179,589 ($101,795,889 ÷ 10 years) annually for 117 (1,173 PA Total FFRMS action Category E projects ÷ 10 years) projects annually. Therefore,
As established above, FEMA estimates that this rule would affect approximately 43 small HMA grant recipients per year. Using CISA as the primary approach, FEMA estimates that the total 10-year cost for the elevation and floodproofing requirements of this proposed rule for HMA projects would be $4,810,196 ($48,101,958 ÷ 10 years) annually for 1,035 (10,351 HMA Total FFRMS action projects ÷ 10 years) projects annually. There is an average of 43 small entities HMA projects per year. The average HMA project cost is $4,648 ($4,810,196 ÷ 1,035 HMA projects) per project. The cost-sharing arrangement for HMA is 75 percent Federal and 25 percent recipient, so HMA recipients would be required to fund 25 percent of the costs to comply with the requirements of the proposed rule. Each small entity cost share would have an average expected cost is $1,162 ($4,648 × 25 percent).
Reporting and recordkeeping are not expected to change with the exception of minor changes to FEMA's Mitigation Grant Program/e-Grants system. FEMA would still make the determination if a project would take place in an FFRMS floodplain.
Situations may arise where multiple Federal agencies are conducting, supporting (including funding), or permitting actions in the same geographic area as FEMA actions subject to the FFRMS. In order to address this possibility, Sec. H of FEMA's policy will leverage the Unified Federal Review process. Because FEMA has a coordination process in place for these occasions, the rule does not conflict with or duplicate the rules of other Federal agencies.
This rule proposes to modify existing FEMA regulations relating to compliance with Executive Order 11988, Floodplain Management are being modified to comply with Executive Order 11988, as amended.
The standards proposed in this rule represent FEMA's efforts to implement Executive Order 11988, as amended, which establishes executive branch-wide policy in this area. Executive Order 13690 establishes the FFRMS. The policies established in these EOs do not consider exempting small entities from all or part of the standard; the purpose of the FFRMS is to ensure that agencies expand management from the current base flood level to a higher vertical elevation and corresponding horizontal floodplain to address current and future flood risk and ensure that projects funded with taxpayer dollars last as long as intended. Accordingly, FEMA proposes that the rule apply to all affected FEMA projects, including small entities.
As discussed previously, most of the cost of the mitigation standards required by this rule would be paid by FEMA in the form of additional PA, IA, or HMA grants. Cost sharing is required for most FEMA grant programs. For PA and HMA, affected small entities would be required to pay the recipient portion of the cost share, which is 25 percent in most cases. There are, however, some exceptions and cost shares can be waived or set at a different level by Congress. FEMA does not have the authority to adjust the cost share specifically for small entities.
Executive Order 11988, as amended, allows several approaches to determine the FFRMS floodplain. Section F of this NPRM, FEMA's Implementation of Executive Order 11988, as amended, and FFRMS, describes the FFRMS approaches allowed by Executive Order 11988, as amended, and FEMA's considerations when selecting between the FFRMS approaches. FEMA is proposing, in its accompanying policy, to use CISA as the preferred approach. FEMA has chosen CISA as its preferred approach because it is the only one that uses the best available climate science to ensure projects are designed to meet current and future flood risks unique to the location and thus ensures the best overall resilience, cost effectiveness, and equity. Accordingly, FEMA believes its preferred approach will minimize the risk that affected small entities incur more costs than necessary because of overprotection or incur preventable costs from future damage because of under protection.
Small entities affected by the proposed rule, as with any entity affected by the rule, would have the option to relocate outside of the floodplain. This may be preferable in cases where property can be obtained and new facilities built for less cost than elevating or floodproofing to the FFRMS level in the floodplain, and the recipient has the ability to relocate.
FEMA requests public comment on alternatives to the proposed rule that it may not have considered, which accomplish the stated objectives of applicable statutes, and which minimize any significant economic impact of the rule on small entities. FEMA also invites all interested parties to submit data and information regarding the potential economic impact on small entities from adoption of this proposed rule. FEMA will consider all comments received in the public comment process.
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law). Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) further requires that before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement detailing the effect on State, local, and Tribal governments and the private sector. The proposed rule would not result in such an expenditure, and thus preparation of such a statement is not required.
Section 102 of the National Environmental Policy Act of 1969 (NEPA), Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321
The proposed rule would update the Floodplain Management and Protection of Wetland requirements to adopt the approaches outlined in E.O. 11988, as amended. This involves establishing the floodplain, using the vertical elevation and corresponding horizontal extent, in the 8-step decision making process FEMA follows in applying E.O. 11988 to its actions. FEMA proposes to amend regulations codified at 44 CFR part 9 to revise the definition of the floodplain based on the approaches in E.O. 11988, as amended, consisting of the Climate-Informed Science Approach, the freeboard value approach, the 0.2 percent annual chance flood approach, and any other method identified in updates. The proposed rule allows FEMA to select and prioritize among these approaches. The rule revises the 8-step decision making process to incorporate consideration of the approaches in determining if the project is in the floodplain. The rule would also add a requirement, where possible, to use natural systems, ecosystem processes, and nature-based approaches in the development of alternatives for Federal actions in a floodplain. The result of redefining the floodplain and applying the approaches outlined in Executive Order 11988, as amended, may be that structures determined to be in the floodplain (“the FFRMS floodplain”) would be elevated or floodproofed to a higher level, and more structures—due to the corresponding horizontal expansion of the floodplain—might be subject to an elevation requirement and/or other mitigation measures. Further, with the expanded horizontal floodplain, and application of the 8-step decision making process which allows for Federal actions in the floodplain only if there is no practicable alternative, it is possible some structures that otherwise would be constructed in a high-risk flood area, would be constructed elsewhere. This would result in better protection of people and their property, the floodplain and environment. When placing the action in the floodplain cannot be avoided, implementing mitigation measures to structures in the FFRMS floodplain will not only promote public safety and lessen flood risk, but may also reduce the impact of the action on the floodplain, and thereby contribute to preserving the natural and beneficial values of the floodplain per the mandate in E.O. 11988. Similarly, the requirement to use natural systems, ecosystem processes, and nature-based approaches, where possible, in alternatives to the proposed action would contribute to restoring and preserving the natural and beneficial values of the floodplain.
FEMA has determined that NEPA applies to the proposed rule because it fits the definition of a “major federal action.” CEQ's NEPA regulations define “major federal action” to include “new or revised agency rules,” regulations and policies. 40 CFR 1508.1(q)(2). The proposed rule, involving revision of the regulations at 44 CFR part 9, and accompanying new policy, constitute a “major federal action.”
FEMA analyzed the proposed rule and finds that it meets the three DHS criteria for a categorical exclusion. FEMA has determined that consistent with the first criterion, the rule clearly fits within the categorical exclusion found at A3 in the DHS Instruction Manual, Appendix A. Categorical exclusion A3 states that “promulgation of rules, issuance of rulings or interpretations, and the development and publications of policies” may be categorically excluded if such actions “interpret or amend an existing regulation without changing its environmental effect.” Instruction Manual, Appendix A, A3(d). The proposed rule may result in requiring a structure to have either higher elevation or floodproofing, or more resilient design. The rule, however, does not change the environmental impacts because the modifications do not expand the footprint of the structure. It is possible the expanded horizontal floodplain may discourage placing a “federal action” in the floodplain as under the 8-step decision making process, a structure may be located in the floodplain only if there is no practicable alternative. In the event there is a practicable alternative, and new construction is consequently located outside the floodplain, the effect of the proposed rule would be to benefit the environment by contributing to restoring and preserving the values of the floodplain as well as enhancing public safety.
If the Federal action must be located in the FFRMS floodplain, that is, there no practicable alternative, it will be subject to one of the three approaches or a combination of them. FEMA's preferred approach is CISA. If the CISA approach is used, it could result in an estimated average of 5 feet of additional elevation for a structure (or floodproofing to that level). FEMA prefers the CISA approach because it perceives that using the best actionable and available climate informed science to determine the floodplain is the most effective way to make the structure resilient. If CISA is not available, the proposed rule provides alternatives for determining the floodplain for critical actions and non-critical actions: for non-critical actions, the lesser of the freeboard value approach (2 or 3 feet above base flood elevation) or the .2 percent annual flood; and for critical actions, the higher of the freeboard value approach or .2 percent annual flood. Given CISA or the combination of approaches may be used, the potential for the change in elevation (or floodproofing) levels varies. Further, if communities have stricter standards, which they are required to apply, the
None of the changes required by any of the combined FFRMS approaches are anticipated to change the environmental effects of application of the 8-step process. In addition to and apart from application of the decision process in this proposed rule, all Federal actions, new construction, substantial improvement, and actions addressing substantial damage, are subject to NEPA review and must comply with NEPA requirements. Each Federal action (or project) subject to the FFRMS will be evaluated on an individual basis under NEPA and related environmental laws, regulations, and executive orders. The Federal action will not be approved unless it meets all applicable environmental and historic preservation requirements. Further, the Federal actions subject to the proposed rule must comply with all applicable floodplain requirements.
FEMA therefore concludes the proposed rule clearly fits within categorical exclusion A3. FEMA also finds the proposed rule meets the second and third DHS criteria for applying a categorical exclusion. The proposed rule is not a piece of a larger action as it will be implemented independently of other FEMA actions and is a separate action unto itself. Furthermore, FEMA finds that adopting the floodplain management and protection approaches outlined in E.O. 11988 presents no extraordinary circumstances that increase the potential for significant environmental effects to the environment. Accordingly, the proposed rule is categorically excluded, and no further NEPA analysis or documentation is required.
As required by the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, 109 Stat. 163, (May 22, 1995) (44 U.S.C. 3501
Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must determine whether implementation of a proposed regulation would result in a system of records. A “record” is any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his/her education, financial transactions, medical history, and criminal or employment history and that contains his/her name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. See 5 U.S.C. 552a(a)(4). A “system of records” is a group of records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. See 5 U.S.C. 552a(a)(5). An agency cannot disclose any record, which is contained in a system of records, except by following specific procedures.
In accordance with DHS policy, FEMA has completed a Privacy Threshold Analysis for this proposed rule. This rule is covered by the following PIAs: DHS/FEMA/PIA-006 FEMA National Emergency Management Electronic Grants System, DHS/FEMA/PIA-025-Hazard Mitigation Grant Program (HMGP) System, DHS/FEMA/PIA-026 Operational Data Store and Enterprise Data Warehouse PIA, and DHS/FEMA/PIA-031 Authentication and Provisioning Services (APS). No updates to these PIAs are necessary. Further, this rule is covered under the following System of Records Notices (SORNs): DHS/FEMA-009 Hazard Mitigation, Disaster Public Assistance, and Disaster Loan Programs, 79 FR 16015, Mar. 24, 2014; DHS/ALL-004 General Information Technology Access Account Records System (GITAARS), 77 FR 70792, Nov. 27, 2012; and DHS/FEMA-008 Disaster Recovery Assistance Files. This proposed rule would not create a new system of records and no update to these SORNs are necessary.
Executive Order 13175, “Consultation and Coordination With Indian Tribal Governments,” 65 FR 67249, Nov. 9, 2000, applies to agency regulations that have Tribal implications, that is, regulations that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Under this Executive Order, to the extent practicable and permitted by law, no agency shall promulgate any regulation that has Tribal implications, that imposes substantial direct compliance costs on Indian Tribal governments, and that is not required by statute, unless funds necessary to pay the direct costs incurred by the Indian Tribal government or the Tribe in complying with the regulations are provided by the Federal Government, or the agency consults with Tribal officials.
FEMA has reviewed this proposed rule under Executive Order 13175 and has determined that this rule would not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
Part 9 applies to FEMA disaster and non-disaster assistance programs, including PA, Individual Assistance, HMA, and grants processed by GPD. Pursuant to section 8 of Executive Order 11988, part 9 does not apply to
Indian Tribes have the same opportunity to participate in FEMA's grant programs as other eligible participants, and participation is voluntary. The requirements of this rule do not affect Tribes differently than other grant recipients. Therefore, FEMA does not expect this proposed rule would have a substantial direct effect on one or more Indian Tribes or impose substantial direct compliance costs on Indian Tribal governments but will consider any information provided in comments to inform its analysis of this issue as part of a final rule.
Notwithstanding FEMA's conclusion that this proposed rule would not have tribal implications, FEMA recognizes the importance of engaging with Tribes with respect to the FFRMS. FEMA therefore summarizes below the extensive engagement process that precedes this rule, including significant engagement with Tribal leaders. As noted above, in the aftermath of Hurricane Sandy, the President issued Executive Order 13632,
In June 2013, the President issued a Climate Action Plan that directed agencies to take the appropriate actions to reduce risk to Federal investments, specifically directing agencies to build on the work done by the Sandy Task Force and update their flood risk reduction standards for “federally-funded projects” to ensure that “projects funded with taxpayer dollars last as long as intended.” In November 2013, the Climate Task Force convened, with 26 Governors, mayors, and local and Tribal leaders serving as members. After a year-long process of receiving input from across State, local, Tribal and territorial governments; private businesses; trade associations; academic organizations; civil society; and other stakeholders, the Task Force provided a recommendation to the President in November 2014 that, in order to ensure resiliency, Federal agencies, when taking actions in and around floodplains, should include considerations of the effects of changing conditions, including sea level rise, more frequent and severe storms, and increasing river flood risks.
Executive Order 11988, as amended, established the FFRMS. It also set forth a process by which additional input from stakeholders could be solicited and considered before agencies took any action to implement the FFRMS. It required FEMA to publish an updated draft version of the 1978 Guidelines
FEMA, acting on behalf of the Mitigation Framework Leadership Group, published a
In response to multiple requests, the comment period was extended for an additional 30 days to end on May 6, 2015. The Administration also attended or hosted over 25 meetings across the country with State, local, and Tribal officials (including 26 mayors) and interested stakeholders to discuss the Guidelines. There were 9 public listening sessions across the country that were attended by over 700 participants from State, local, and Tribal governments, and other stakeholder organizations to discuss the Guidelines. There were Tribal representatives at both the Ames, Iowa and Sacramento, California listening sessions; however, the specific Tribes that they were representing were not identified. Notice of these public listening sessions was posted in the
The public comment period closed on May 6, 2015. Two Tribes submitted formal comments on the Guidelines during the
FEMA welcomes Tribal comments on all aspects of this proposed rule.
Executive Order 13132, “Federalism,” 64 FR 43255, Aug. 10, 1999, sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.
FEMA has reviewed this proposed rule under Executive Order 13132 and has determined that this rule would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, and therefore does not have federalism implications as defined by the Executive Order.
Part 9 applies to FEMA disaster and non-disaster assistance programs, including Public Assistance, Individual Assistance, HMA, and grants processed from GPD. Pursuant to section 8 of Executive Order 11988, part 9 does not apply to assistance provided for emergency work essential to save lives and protect property and public health and safety, performed pursuant to section 403 and 502 of the Stafford Act, as amended (42 U.S.C. 5170b and 5192). The proposed rule does not significantly affect the rights, roles, and responsibilities of States, and involves no preemption of State law nor does it limit State policymaking discretion.
Under Executive Order 12898, “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations,” (59 FR 7629, Feb. 16, 1994); and Executive Order 14096, “Revitalizing Our Nation's Commitment to Environmental Justice for All (88 FR 25251, Apr. 26, 2023), FEMA incorporates environmental justice into its policies and programs. Executive Order 14096 charges agencies to make achieving environmental justice part of their missions consistent with statutory
FEMA does not expect this rule to have a disproportionate and adverse human health or environmental effect on communities with environmental justice concerns but will consider any information provided in comments to inform its analysis of this issue as part of a final rule.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, “Governmental Actions and Interference With Constitutionally Protected Property Rights” (53 FR 8859, Mar. 18, 1988).
This NPRM meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, Feb. 7, 1996), to minimize litigation, eliminate ambiguity, and reduce burden.
This NPRM will not create environmental health risks or safety risks for children under Executive Order 13045, “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, Apr. 23, 1997).
“Voluntary consensus standards” are standards developed or adopted by voluntary consensus standards bodies, both domestic and international. These standards include provisions requiring that owners of relevant intellectual property have agreed to make that intellectual property available on a non-discriminatory, royalty-free, or reasonable royalty basis to all interested parties. OMB Circular A-119 directs agencies to use voluntary consensus standards in their regulatory actions in lieu of government-unique standards except where inconsistent with law or otherwise impractical. The policies in the Circular are intended to reduce to a minimum the reliance by agencies on government-unique standards.
Consistent with then-President Obama's Climate Action Plan,
Flood plains, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, FEMA proposes to amend 44 CFR part 9, as follows:
6 U.S.C. 101
This part sets forth the policy, procedure, and responsibilities to implement and enforce relevant sections of the National Flood Insurance Act of 1968, as amended, and the Flood Disaster Protection Act of 1973, as amended, 42 U.S.C. 4001
(b) The Agency will provide leadership in floodplain management and the protection of wetlands, informed by the best available and actionable science, to bolster the resilience of communities and Federal assets against the impacts of flooding, which are anticipated to increase over time due to the effects of changing conditions which adversely affect the environment, economic prosperity, public health and safety, and national security.
(c) The Agency shall integrate the goals of the Orders to the greatest possible degree into its procedures for implementing the National Environmental Policy Act (42 U.S.C. 4321
(d) The Agency shall:
(1) Minimize the impact of floods on human health, safety, and welfare;
(2) Avoid long- and short-term adverse impacts associated with the occupancy and modification of floodplains and the destruction and modification of wetlands;
(3) Avoid direct and indirect support of floodplain development and new construction in wetlands wherever there is a practicable alternative;
(4) Reduce the risk of flood loss;
(5) Promote the use of nonstructural flood protection methods to reduce the risk of flood loss;
(6) Minimize the destruction, loss, or degradation of wetlands;
(7) Restore and preserve the natural and beneficial values served by floodplains;
(8) Preserve and enhance the natural values of wetlands;
(9) Involve the public throughout the floodplain management and wetlands protection decision-making process;
(10) Adhere to the objectives of the Unified National Program for Floodplain Management; and
(11) Improve and coordinate the Agency's plans, programs, functions, and resources so that the Nation may attain the widest range of beneficial uses of the environment without degradation or risk to health and safety.
Any provision of this part held to be invalid or unenforceable as applied to any action should be construed so as to continue to give the maximum effect to the provision permitted by law, unless such holding is that the provision of this part is invalid and unenforceable in all circumstances, in which event the provision should be severable from the remainder of this subpart and shall not affect the remainder thereof.
The additions and revisions read as follows:
(1) Acquiring, managing, and disposing of Federal lands and facilities;
(2) Providing federally undertaken, financed, or assisted construction and improvements; and
(3) Conducting Federal activities and programs affecting land use, including, but not limited to, water and related land resources, planning, regulating, and licensing activities.
(1) The occupancy or modification of floodplains, and the direct or indirect support of floodplain development, or
(2) The destruction and modification of wetlands and the direct or indirect support of new construction in wetlands.
(1) Such as those which produce, use or store highly volatile, flammable, explosive, toxic or water-reactive materials;
(2) Such as hospitals and nursing homes, and housing for the elderly, which are likely to contain occupants who may not be sufficiently mobile to avoid the loss of life or injury during flood and storm events;
(3) Such as emergency operation centers, or data storage centers which contain records or services that may become lost or inoperative during flood and storm events; and
(4) Such as generating plants, and other principal points of utility lines.
(1) Water Resource Values (storing and conveying floodwaters, maintaining water quality, and groundwater recharge);
(2) Living Resource Values (providing habitats and enhancing biodiversity for fish, wildlife, and plant resources);
(3) Cultural Resource Values (providing open space, natural beauty, recreation, scientific study, historic and archaeological resources, and education; and
(4) Cultivated Resource Values (creating rich soils for agriculture, aquaculture, and forestry).
(a) * * *
(3) The amendments to this part made on [EFFECTIVE DATE OF FINAL RULE] apply to new actions for which assistance is made available pursuant to declarations under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 on or after [EFFECTIVE DATE OF FINAL RULE] and new actions for which assistance is
(b) * * *
(1) Executive Order 11990, Protection of Wetlands, contains a limited exemption not found in Executive Order 11988, Floodplain Management, as amended. * * *
(c)
(1) Assistance provided for emergency work essential to save lives and protect property and public health and safety performed pursuant to sections 403 and 502;
(2) Emergency Support Teams (section 303);
(3) Emergency Communications (section 418);
(4) Emergency Public Transportation (section 419);
(5) Fire Management Assistance (section 420), except for hazard mitigation assistance under sections 404 and 420(d);
(6) Community Disaster Loans (section 417), except to the extent that the proceeds of the loan will be used for repair of facilities or structures or for construction of additional facilities or structures;
(7) The following Federal Assistance to Individuals and Households Program (section 408) categories of assistance:
(i) Financial assistance for temporary housing (section 408(c)(1)(A));
(ii) Lease and repair of rental units for temporary housing (section 408(c)(1)(B)(ii)), except that Step 1 (§ 9.7) shall be carried out;
(iii) Repairs (section 408(c)(2));
(iv) Replacement (section 408(c)(3)); and
(v) Financial assistance to address other needs (section 408(e)).
(8) Debris clearance and removal (sections 403 and 502), except those grants involving non-emergency disposal of debris within a floodplain or wetland (section 407);
(9) Actions under sections 406 and 407 of less than $18,000. Such $18,000 amount will be adjusted annually to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor;
(10) Placement of families in existing resources and Temporary Relocation Assistance provided to those families so placed under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Public Law 96-510.
(d)
(1) Actions in a floodway or coastal high hazard area; or
(2) New construction, substantial improvement, or repairs to address substantial damage of structures or facilities; or
(3) Facilities or structures which have previously sustained damage from flooding due to a major disaster or emergency or on which a flood insurance claim has been paid; or
(4) Critical actions.
(e)
(1) Replacement of building contents, materials, and equipment (section 406).
(2) Repairs under section 406 to damaged facilities or structures, except any such action for which one or more of the following is applicable:
(i) FEMA estimated cost of repairs is more than 50 percent of the estimated reconstruction cost of the entire facility or structure or is more than $364,000. Such $364,000 amount will be adjusted annually to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor; or
(ii) The action is located in a floodway or coastal high hazard area; or
(iii) Facilities or structures which have previously sustained structural damage from flooding due to a major disaster or emergency or on which a flood insurance claim has been paid; or
(iv) The action is a critical action.
(f)
(g)
(2) The provisions set forth in this part are not applicable to the actions enumerated below except that FEMA Resilience shall comply with the spirit of the Orders to the extent practicable:
(i) The issuance of individual flood insurance policies and policy interpretations;
(ii) The adjustment of claims made under the Standard Flood Insurance Policy;
(iii) The hiring of independent contractors to assist in the implementation of the NFIP;
(iv) The issuance of individual flood insurance maps, Map Information Facility map determinations, and map amendments; and
(v) The conferring of eligibility for emergency or regular program (NFIP) benefits upon communities.
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(a)
(b)
(i) Avoid Federal action in floodplain and wetland locations unless they are the only practicable alternatives; and
(ii) Minimize harm to and within floodplains and wetlands.
(2) In all cases, FEMA shall determine whether the proposed action is located in a floodplain or wetland. Information about the floodplain as established by § 9.7(c) and the location of floodways and coastal high hazard areas may also be needed to comply with this part, especially § 9.11.
(3) The following additional current and future flooding characteristics may be identified by the Regional Administrator as applicable:
(i) Velocity of floodwater;
(ii) Rate of rise of floodwater;
(iii) Duration of flooding;
(iv) Available warning and evacuation time and routes;
(v) Special problems:
(A) Levees;
(B) Erosion;
(C) Subsidence;
(D) Sink holes;
(E) Ice jams;
(F) Debris load;
(G) Pollutants;
(H) Wave heights;
(I) Groundwater flooding;
(J) Mudflow.
(vi) Any other applicable flooding characteristics.
(c)
(1) FEMA shall determine whether the action is an action subject to the FFRMS as defined in § 9.4.
(i) If the action is an action subject to the FFRMS, FEMA shall establish the FFRMS floodplain area and associated flood elevation by using the process specified in (c)(3) of this section and one of the following approaches:
(A) Climate-Informed Science Approach (CISA): Using a climate-informed science approach that uses the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science. This approach will also include an emphasis on whether the action is a critical action as one of the factors to be considered when conducting the analysis;
(B) Freeboard Value Approach (FVA): Using the freeboard value, reached by adding an additional 2 feet to the base flood elevation for non-critical actions and by adding an additional 3 feet to the base flood elevation for critical actions;
(C) 0.2 Percent Annual Chance Flood Approach (0.2PFA): The 0.2 percent annual chance flood; or
(D) Any other method identified in an update to the FFRMS.
(ii) FEMA may select among and prioritize the approaches in paragraph (c)(1) by policy.
(iii) FEMA may provide an exception to using the FFRMS floodplain and corresponding flood elevation for an action subject to the FFRMS and instead use the 1 percent annual chance (base) floodplain for non-critical actions or the 0.2 percent annual chance floodplain for critical actions where the action is in the interest of national security, where the action is an emergency action, or where the action is a mission-critical requirement related to a national security interest or an emergency action.
(2) If the action is not an action subject to the FFRMS as defined in § 9.4, FEMA shall use, at a minimum:
(i) The 1 percent annual chance (base) floodplain and flood elevation for non-critical actions; and
(ii) The 0.2 percent annual chance floodplain and flood elevation for critical actions.
(3) FEMA shall establish the floodplain and corresponding elevation using the best available information. The floodplain and corresponding elevation determined using the best available information must be at least as restrictive as FEMA's regulatory determinations under the NFIP where such determinations are available. In obtaining the best available information, FEMA may consider other FEMA information as well as other available information, such as:
(i) Department of Agriculture: Natural Resources Conservation Service, U.S. Forest Service;
(ii) Department of Defense: U.S. Army Corps of Engineers;
(iii) Department of Commerce: National Oceanic and Atmospheric Administration;
(iv) Department of the Interior: Bureau of Land Management, Bureau of Reclamation, U.S. Fish and Wildlife Service, United States Geological Survey;
(v) Tennessee Valley Authority;
(vi) Department of Transportation;
(vii) Environmental Protection Agency;
(viii) General Services Administration;
(ix) States and Regional Agencies; or
(x) Local sources such as Floodplain Administrators, Regional Flood Control Districts, or Transportation Departments.
(4) If the sources listed in paragraph (c)(3) of this section do not have or know of the information necessary to comply with the requirements in this part, the Regional Administrator may seek the services of a professional registered engineer.
(5) If a decision involves an area or location within extensive Federal or state holdings or a headwater area and FEMA's regulatory determinations under the National Flood Insurance Program are not available, the Regional Administrator shall seek information from the land administering agency before information and/or assistance is sought from the sources listed in paragraph (c)(3).
(d) * * *
(3) If the identified sources do not have adequate information upon which to base the determination, the Agency shall carry out an on-site analysis performed by a representative of the FWS or other qualified individual for wetlands characteristics based on the definition of a wetland in § 9.4.
(4) If an action constitutes new construction and is in a wetland but not in a floodplain, the provisions of this part shall apply. If the action is not in a wetland, the Regional Administrator shall determine if the action has the potential to result in indirect impacts on wetlands. If so, all potential adverse impacts shall be minimized. For actions which are in a wetland and the floodplain, completion of the decision-making process is required. (See § 9.6). In such a case, the wetland will be considered as one of the natural and beneficial values of the floodplain.
(a)
(c) * * *
(1) For an action for which an environmental impact statement is being prepared, the Notice of Intent to File an EIS constitutes the early public notice if it includes the information required under paragraph (c)(5) of this section.
(2) For each action having national significance for which notice is being provided, the Agency at a minimum shall provide notice by publication in the
(3) The Agency shall determine whether it has provided appropriate notices, adequate comment periods, and whether to issue cumulative notices (paragraphs (c)(4), (6), and (7) of this section) based on factors which include, but are not limited to:
(v) Anticipated potential impact of the action.
(4) For each action having primarily local importance for which notice is being provided, notice shall be made in accordance with the criteria under paragraph (c)(3) of this section, and shall include, as appropriate:
(i) Notice through the internet or another comparable method.
(ii) Notice to Indian tribes when effects may occur on reservations.
(iii) Information required in the affected State's public notice procedures for comparable actions.
(iv) Publication in local newspapers.
(v) Notice through other local media including newsletters.
(vi) Notice to potential interested community organizations.
(vii) Direct mailing to owners and occupants of nearby or affected property.
(viii) Posting of notice on and off site in the area where the action is to be located.
(ix) Public hearing.
(5) The notice shall:
(i) Describe the action, its purposes, and a statement of the intent to carry out an action affecting or affected by a floodplain or wetland;
(ii) Based on the factors in paragraph (c)(3) of this section, include a map of the area and other identification of the floodplain and/or wetland areas which is of adequate scale and detail; alternatively, FEMA may state that such map is available for public inspection, including the location at which such map may be inspected and a telephone number to call for information or may provide a link to access the map online;
(iii) Based on the factors in paragraph (c)(3) of this section, describe the type, extent, and degree of hazard involved and the floodplain or wetland values present; and
(iv) Identify the responsible official or organization for implementing the proposed action, and from whom further information can be obtained.
The addition and revisions read as follows:
(a) * * *
(1) This section expands upon the directives set out in § 9.6 of this part in order to clarify and emphasize the requirements to avoid floodplains and wetlands unless there is no practicable alternative.
(b) * * *
(2) Alternative actions which serve essentially the same purpose as the proposed action, but which have less potential to affect or be affected by the floodplain or wetlands. In developing the alternative actions, the Agency shall use, where possible, natural systems, ecosystem processes, and nature-based approaches; and
(c) * * *
(1) Natural environment (including, but not limited to topography, habitat, hazards, when applicable);
(2) Social concerns (including, but not limited to aesthetics, historical and cultural values, land patterns, when applicable);
(3) Economic aspects (including, but not limited to costs of space, technology, construction, services, relocation, when applicable);
(4) Legal constraints (including, but not limited to deeds and leases, when applicable); and
(5) Agency authorities.
(d) * * *
(1) The Agency shall not locate the proposed action in the floodplain as established by § 9.7(c) or in a wetland if a practicable alternative exists outside the floodplain or wetland.
(2) If no practicable alternative exists outside the floodplain or wetland, in order to carry out the action the floodplain or wetland must itself be a practicable location in light of the review required in this section.
(e) * * *
(1) * * *
(i) The action is still practicable at a floodplain or wetland site, considering the flood risk and the ensuing disruption of natural values;
(iii) The scope of the action can be limited to increase the practicability of previously rejected non-floodplain or wetland sites and alternative actions; and
(iv) Harm to or within the floodplain can be minimized using all practicable means.
(2) Take no action in a floodplain unless the importance of the floodplain site clearly outweighs the requirements to:
(3) Take no action in a wetland unless the importance of the wetland site clearly outweighs the requirements to:
(4) In carrying out this balancing process, give the factors in paragraphs (e)(2) and (3) of this section great weight.
(a) This section ensures that the effects of proposed Agency actions are identified.
(b) * * * Such identification of impacts shall be to the extent necessary to comply with the requirements of this part to avoid floodplain and wetland locations unless they are the only practicable alternatives to minimize harm to and within floodplains and wetlands.
(c) This identification shall consider whether the proposed action will result in an increase in the useful life of any structure or facility in question, maintain the investment at risk and exposure of lives to the flood hazard or forego an opportunity to restore the natural and beneficial values served by floodplains or wetlands.
(d) In the review of a proposed or alternative action, the Regional Administrator shall consider and evaluate: impacts associated with modification of wetlands and floodplains regardless of its location; additional impacts which may occur when certain types of actions may support subsequent action which have additional impacts of their own; adverse impacts of the proposed actions on lives and property and on natural and beneficial floodplain and wetland values; and the three categories of factors listed below:
(1)
(2)
(3)
The revisions read as follows:
(a)
(c) * * *
(1) Potential harm to lives and the investment from flooding based on flood elevations as established by § 9.7(c);
(d)
(1) There shall be no new construction or substantial
(2) For a structure which is a functionally dependent use or which facilitates an open space use, the following applies: Any construction of a new or substantially improved structure in a coastal high hazard area must be elevated on adequately anchored pilings or columns, and securely anchored to such piles or columns so that the lowest portion of the structural members of the lowest floor (excluding the pilings or columns) is elevated to or above the floodplain as established by § 9.7(c). The structure shall be anchored so as to withstand velocity waters and hurricane wave wash.
(3)
(i) There shall be no new construction or substantial improvement of structures unless the lowest floor of the structures (including basement) is at or above the elevation of the floodplain as established by § 9.7(c).
(ii) If the subject structure is nonresidential, instead of elevating the structure, FEMA may approve the design of the structure and its attendant utility and sanitary facilities so that the structure is water tight below the flood elevation with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy.
(iii) The provisions of paragraphs (d)(3)(i) and (ii) of this section do not apply to the extent that FEMA Resilience has granted an exception under § 60.6(b) of this chapter, or the community has granted a variance which the Regional Administrator determines is consistent with § 60.6(a) of this chapter. In a community which does not have a FEMA regulatory product in effect, FEMA may approve a variance from the standards of paragraphs (d)(3)(i) and (ii) of this section, after compliance with the standards of § 60.6(a) of this chapter.
(4) There shall be no encroachments, including but not limited to fill, new construction, substantial improvements of structures or facilities, or other development within a designated regulatory floodway that would result in any increase in flood elevation within the community during the occurrence of the 1 percent annual chance (base) flood discharge. Until a regulatory floodway is designated, no fill, new construction, substantial improvements, or other development shall be permitted within the 1 percent annual chance (base) floodplain unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the 1 percent annual chance (base) flood more than the amount designated by the NFIP or the community, whichever is most restrictive.
(5) Even if an action is a functionally dependent use or facilitates open space uses (under paragraph (d)(1) or (2) of this section) and does not increase flood heights (under paragraph (d)(4) of this section), such action may only be taken in a floodway or coastal high hazard area if: * * *
(9) In the replacement of building contents, materials and equipment, the Regional Administrator shall require as appropriate, flood proofing and/or elevation of the building and/or elimination of such future losses by relocation of those building contents, materials, and equipment outside or above the floodplain as established by § 9.7(c).
(e)
(2) Where floodplain or wetland values have been degraded by the proposed action, the Agency shall identify, evaluate, and implement measures to restore the values.
(3) If an action will result in harm to or within the floodplain or wetland, the Agency shall design or modify the action to preserve as much of the natural and beneficial floodplain and wetland values as is possible.
(d) * * *
(2) When a damaged structure or facility is already being repaired by the State or local government at the time of the project application, the requirements of Steps 2 and 7 (§§ 9.8 and this 9.12) may be met by a single notice. Such notice shall contain all the information required by both sections.
(a) This section sets forth the procedures whereby the Agency will provide certain specified types of temporary housing at a private, commercial, or group site.
(b) Prior to providing the temporary housing described in paragraph (a) of this section, the Agency shall comply with the provisions of this section. For temporary housing not enumerated above, the full 8-step process (see § 9.6) applies.
(c) The actions described in paragraph (a) of this section are subject to the following decision-making process:
(1) The temporary housing action shall be evaluated in accordance with the provisions of § 9.7 to determine if it is in or affects the 1 percent annual chance (base) floodplain or wetland.
(2) No temporary housing unit may be placed on a site in a floodway or coastal high hazard area.
(3) An individual or family shall not be housed in the 1 percent annual chance (base) floodplain or wetland unless the Regional Administrator has complied with the provisions of § 9.9 to determine that such site is the only practicable alternative. The following factors shall be substituted for the factors in § 9.9(c) and (e)(2) through (4):
(i) Speedy provision of temporary housing;
(ii) Potential flood risk to the temporary housing occupant;
(iii) Cost effectiveness;
(iv) Social and neighborhood patterns;
(v) Timely availability of other housing resources; and
(vi) Potential harm to the floodplain or wetland.
(4) For temporary housing units at group sites, Step 4 of the 8-step process shall be applied in accordance with § 9.10.
(5) An individual or family shall not be housed in a floodplain or wetland (except in existing resources) unless the Regional Administrator has complied with the provisions of § 9.11 to minimize harm to and within floodplains and wetlands. The following provisions shall be substituted for the provisions of § 9.11(d) for temporary housing units:
(i) No temporary housing unit may be placed unless it is elevated to the fullest extent practicable up to the base flood elevation and adequately anchored.
(ii) No temporary housing unit may be placed if such placement is inconsistent with the criteria of the NFIP (44 CFR
(iii) Temporary housing units shall be elevated on open works (walls, columns, piers, piles, etc.) rather than on fill where practicable.
(iv) To minimize the effect of floods on human health, safety and welfare, the Agency shall:
(A) Where appropriate, integrate all of its proposed actions in placing temporary housing units for temporary housing in floodplains into existing flood warning or preparedness plans and ensure that available flood warning time is reflected;
(B) Provide adequate access and egress to and from the proposed site of the temporary housing unit; and
(C) Give special consideration to the unique hazard potential in flash flood and rapid-rise areas.
(6) FEMA shall comply with Step 2 Early Public Notice (§ 9.8(c)) and Step 7 Final Public Notice (§ 9.12). In providing these notices, the emergency nature of temporary housing shall be taken into account.
(7) FEMA shall carry out the actions in accordance with Step 8, ensuring the requirements of this section and the decision-making process are fully integrated into the provision of temporary housing.
(d)
(1) FEMA shall not permanently install temporary housing units in floodways or coastal high hazard areas. FEMA shall not permanently install a temporary housing unit in floodplains as established by 9.7(c) or wetlands unless there is full compliance with the 8-step process. Given the vulnerability of temporary housing units to flooding, a rejection of a non-floodplain location alternative and of the no-action alternative shall be based on:
(i) A compelling need of the family or individual to buy a temporary housing unit for permanent housing; and
(ii) A compelling requirement to permanently install the unit in a floodplain.
(2) FEMA shall not permanently install temporary housing units in the floodplain as established by § 9.7(c) unless they are or will be elevated at least to the elevation of the floodplain as established by § 9.7(c).
(3) The Regional Administrator shall notify FEMA Resilience of each instance where a floodplain location has been found to be the only practicable alternative for permanent installation of a temporary housing unit.
(a) This section sets forth the procedures whereby the Agency shall dispose of property.
(b) * * *
(4) Identify the potential impacts and support of floodplain and wetland development associated with the disposal of the property in accordance with § 9.10;
(5) Identify the steps necessary to minimize, restore, preserve and enhance in accordance with § 9.11. For disposals, this analysis shall address all four of these components of mitigation where unimproved property is involved, but shall focus on minimization through elevation or floodproofing and restoration of natural values where improved property is involved;
(6) Reevaluate the proposal to dispose of the property in light of its exposure to the flood hazard and its natural values-related impacts, in accordance with § 9.9. This analysis shall focus on whether it is practicable in light of the findings from §§ 9.10 and 9.11 to dispose of the property, or whether it must be retained. If it is determined that it is practicable to dispose of the property, this analysis shall identify the practicable alternative that best achieves the Agency's mitigation responsibility.
(7) * * *
(ii) Properties located inside the floodplain but outside of the floodway and the coastal high hazard area; and
(iii) Properties located in a floodway, regulatory floodway, or coastal high hazard area.
(b) This shall be accomplished primarily through amendment of all Agency instructions to applicants, and also through contact made by agency staff during the normal course of their activities, to fully inform prospective applicants of:
(2) The decision-making process to be used by the Agency in making the determination of whether to take an action in or affecting floodplains or wetlands as set out in § 9.6;
(3) The practicability analysis as set out in § 9.9;
(4) The mitigation responsibilities as set out in § 9.11;
(5) The public notice and involvement process as set out in §§ 9.8 and 9.12; and
(c) Guidance to applicants shall be provided, where possible, prior to the time of application in order to minimize potential delays in the Agency's processing of the application due to failure of applicants to follow the provisions in this part.
(a)
(b)
(3) The practicability analysis as set out in § 9.9;
(4) The mitigation responsibilities as set out in § 9.11;
(5) The public notice and involvement process as set out in §§ 9.8 and 9.12; and
(c)
(d)
(a) * * *
(1) Implement the requirements of the Orders and this part. Under §§ 9.2, 9.6 through 9.13, and 9.15 where a direction is given to the Agency, it is the responsibility of the Regional Administrator.
(b) * * *
(1) * * * When a decision of a Regional Administrator relating to disaster assistance is appealed, FEMA Resilience may make determinations under this part on behalf of the Agency.
(2) Prepare and submit to the Office of Chief Counsel reports to the Office of Management and Budget in accordance with section 2(b) of Executive Order 11988, as amended, and section 3 of Executive Order 11990.* * *