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Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Gulfstream Aerospace Corporation (Gulfstream) Model GVIII-G700 and GVIII-G800 series airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is the installation of a therapeutic oxygen system for medical use. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on Gulfstream on January 25, 2024. Send comments on or before March 11, 2024.
Send comments identified by Docket No. FAA-2023-2436 using any of the following methods:
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Robert Hettman, Mechanical Systems, AIR-623, Technical Policy Branch, Policy and Standards Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, Washington 98198; telephone and fax 206-231-3171; email
The substance of these special conditions has been published in the
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in title 14, Code of Federal Regulations (14 CFR) 11.35, the FAA will post all comments received without change to
Confidential Business Information (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 these special conditions contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to these special conditions, 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 the indicated comments will not be placed in the public docket of these special conditions. Send submissions containing CBI to the individual listed in the
The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
The FAA will consider all comments received by the closing date for comments, and will consider comments filed late if it is possible to do so without incurring delay. The FAA may change these special conditions based on the comments received.
On December 31, 2019, Gulfstream applied for an amendment to Type Certificate No. T00015AT to include the new Model GVIII-G700 and GVIII-G800 series airplanes. These airplanes, which are derivatives of the Model GVI currently approved under Type Certificate No. T00015AT, are twin-engine, transport-category airplanes, with a maximum seating for 19 passengers, and a maximum take-off weight of 107,600 pounds (GVIII-G700) and 105,600 pounds (GVIII-G800).
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Gulfstream must show that the Model GVIII-G700 and GVIII-G800 series airplanes meet the applicable provisions
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Gulfstream Model GVIII-G700 and GVIII-G800 series airplanes must comply with the exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with 14 CFR 11.38, and they become part of the type certification basis under § 21.101.
The Gulfstream Model GVIII-G700 and GVIII-G800 series airplanes will incorporate the following novel or unusual design feature:
An oxygen distribution system that provides a shared source of oxygen between the flightcrew and passengers to provide supplemental and therapeutic oxygen.
No specific regulations address the design and installation of required passenger or crew oxygen systems that share a supply source with an optional oxygen system used specifically for therapeutic applications. Therapeutic oxygen systems have been previously certified, and were generally considered an extension of the passenger oxygen system for the purpose of defining the applicable regulations. As a result, existing requirements, such as 14 CFR 25.1309, 25.1441(b) and (c), 25.1451, and 25.1453, in the Gulfstream Aerospace Corporation Model GVIII-G700 and GVIII-G800 airplanes' certification basis applicable to this project, provide some design standards appropriate for oxygen system installations. In addition, § 25.1445 includes standards for oxygen distribution systems when oxygen is supplied to crew and passengers. If a common source of supply is used, § 25.1445(a)(2) requires a means to separately reserve the minimum supply required by the flight crew.
Section 25.1445 is intended to protect the flightcrew by ensuring that an adequate supply of oxygen is available to complete a descent and landing following a loss of cabin pressure. When the regulation was written, the only passenger oxygen system designs were supplemental oxygen systems intended to protect passengers from hypoxia in the event of a decompression. Existing passenger oxygen systems did not include design features that would allow the flightcrew to control oxygen to passengers during flight. There are no similar requirements in § 25.1445 when oxygen is supplied from the same source to passengers for use during a decompression, and for discretionary or first-aid use any time during the flight. In the design, the crew, passenger, and therapeutic oxygen systems use the same source of oxygen. These special conditions contain additional design requirements for the equipment involved in this dual therapeutic oxygen plus supplemental gaseous oxygen installation.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Gulfstream Model GVIII-G700 and GVIII-G800 series airplanes. Should Gulfstream apply at a later date for a change to the type certificate to include another model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only a certain novel or unusual design feature on Gulfstream model GVIII-G700 and GVIII-G800 series airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, and 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Gulfstream Model GVIII-G700 and GVIII-G800 series airplanes.
The distribution system for the passenger therapeutic oxygen system must be designed and installed to meet requirements as follows:
(1) When oxygen is supplied to passengers for both supplemental and therapeutic purposes, the distribution system must be designed for either—
(a) A source of supplemental oxygen for protection following a loss of cabin pressure, and a separate source for therapeutic purposes; or
(b) A common source of supply with means to separately reserve the minimum supply required by the passengers for supplemental use following a loss of cabin pressure.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Gulfstream Aerospace Corporation (Gulfstream) Model GVIII-G700 and GVIII-G800 series airplanes.
This action is effective on Gulfstream on January 25, 2024. Send comments on or before March 11, 2024.
Send comments identified by Docket No. FAA-2023-2444 using any of the following methods:
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Troy Brown, Performance and Environment Unit, AIR-621A, Technical Policy Branch, Policy and Standards Division, Aircraft Certification Service, Federal Aviation Administration, 1801 S Airport Rd., Wichita, KS 67209-2190; telephone and fax 405-666-1050; email
The substance of these special conditions has been published in the
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in title 14, Code of Federal Regulations (14 CFR) 11.35, the FAA will post all comments received without change to
Confidential Business Information (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 these special conditions contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to these special conditions, 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 the indicated comments will not be placed in the public docket of these special conditions. Send submissions containing CBI to Troy Brown, Performance and Environment Unit, AIR-621A, Technical Policy Branch, Policy and Standards Division, Aircraft Certification Service, Federal Aviation Administration, 1801 S Airport Rd., Wichita, KS 67209-2190; telephone and fax 405-666-1050; email
The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
The FAA will consider all comments received by the closing date for comments and will consider comments filed late if it is possible to do so without incurring delay. The FAA may change these special conditions based on the comments received.
On December 31, 2019, Gulfstream applied for an amendment to Type Certificate No. T00015AT to include the new Model GVIII-G700 and GVIII-G800 series airplanes. These airplanes, which are derivatives of the Model GVI currently approved under Type Certificate No. T00015AT, are twin-engine, transport-category airplanes, with a maximum seating for 19 passengers, and a maximum take-off weight of 107,600 pounds (GVIII-G700) and 105,600 pounds (GVIII-G800).
Under the provisions of 14 CFR 21.101, Gulfstream must show that the Model GVIII-G700 and GVIII-G800 series airplanes meet the applicable provisions of the regulations listed in Type Certificate No. T00015AT, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Gulfstream Model GVIII-G700 and GVIII-G800 series airplanes must comply with the exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with 14 CFR 11.38, and they become part of the type certification basis under § 21.101.
The Gulfstream Model GVIII-G700 and GVIII-G800 series airplanes will
Side-stick controllers for pitch and roll control.
These special conditions for the Gulfstream Model GVIII-G700 and GVIII-G800 series airplanes address the unique features of the side-stick controllers. The Model GVIII-G700 and GVIII-G800 series airplanes will incorporate side-stick controllers controlling a fly-by-wire (FBW) flight-control system. The FBW control laws are designed to provide conventional flying qualities such as positive static longitudinal and lateral stability as prescribed in part 25, subpart B. However, the pilot-control forces prescribed in the referenced regulations are not applicable for the side-stick controller design.
Because current FAA regulations do not specifically address the use of side-stick controllers for pitch and roll control, the unique features of the side stick therefore must be demonstrated, through flight and simulator tests, to have suitable handling and control characteristics when considering the following:
• The handling qualities tasks and requirements of the Gulfstream Model GVIII Special Conditions and other 14 CFR part 25 requirements for stability, control, and maneuverability, including the effects of turbulence.
• General ergonomics: Armrest comfort and support, local freedom of movement, displacement-angle suitability, and axis harmony.
• Inadvertent pilot input in turbulence.
• Inadvertent pitch and roll crosstalk from pilot inputs on the side-stick controller.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Gulfstream Model GVIII-G700 and GVIII-G800 series airplanes. Should Gulfstream apply at a later date for a change to the type certificate to include another model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.
This action affects only a certain novel or unusual design feature on Gulfstream Model GVIII-G700 and GVIII-G800 series airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, and 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Gulfstream Aerospace Corporation Model GVIII-G700 and GVIII-G800 series airplanes:
In lieu of the control-force limits shown in § 25.143(d) for pitch and roll, and in lieu of the specific pitch-force requirements of §§ 25.143(i)(2), 25.145(b), 25.173(c), 25.175(b), and 25.175(d), the applicant must show that the temporary and maximum prolonged-force levels for the side-stick controllers are suitable for all expected operating conditions and configurations, whether normal or non-normal.
The electronic side-stick-controller coupling design must provide for corrective and/or overriding control inputs by either pilot with no unsafe characteristics. Annunciation of the controller status must be provided and must not be confusing to the flightcrew.
The applicant must show by flight tests that the use of side-stick controllers does not produce unsuitable pilot-in-the-loop control characteristics when considering precision path control and tasks, and turbulence. In addition, pitch and roll control force and displacement sensitivity must be compatible, so that normal pilot inputs on one control axis will not cause significant unintentional inputs (crossover) on the other.
Federal Aviation Administration (FAA), Department of Transportation.
Notification of limited waiver of the slot usage requirement.
This action grants a limited, conditional waiver of the minimum slot usage requirements at Ronald Reagan Washington National Airport (DCA) due to runway construction and closures at the airport in 2024 and for impacted flights between DCA and slot-controlled airports John F. Kennedy International Airport (JFK) and LaGuardia Airport (LGA). In addition, the FAA will provide similar limited, conditional relief at Newark Liberty International Airport (EWR) under the FAA's Level 2 schedule facilitation process.
The usage waiver and policies in this notification are effective on January 22, 2024, and apply from March 31, 2024, through October 26, 2024.
Requests may be submitted by mail to the Slot Administration Office, System Operations Services, AJR-0, Room 300W, 800 Independence Avenue SW, Washington, DC 20591, or by email to:
For questions concerning this notification contact: Al Meilus, Slot Administration and Capacity Analysis, FAA ATO System Operations Services, AJR-G5, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone 202-267-2822; email
The Metropolitan Washington Airports Authority (MWAA) plans airfield and runway construction at DCA beginning in April 2024 through October 2024. The main Runway 1-19 will be closed nightly from approximately April 15, 2024, through August 5, 2024,
The FAA limits the number of arrivals and departures at DCA through the implementation of the High Density Rule (HDR).
At DCA, JFK, and LGA, each slot must be used a minimum of 80 percent of the time.
The FAA designated EWR a Level 2 airport under the Worldwide Slot Guidelines (WSG), now known as the Worldwide Airport Slot Guidelines (WASG). The FAA does not allocate slots, apply historic precedence, or impose minimum usage requirements at EWR. Level 2 schedule facilitation depends upon close and continuous discussions and voluntary agreement between airlines and the FAA to reduce congestion. At Level 2 airports, the FAA generally provides priority consideration for flights approved by the FAA and operated by the carrier in those approved times in the prior scheduling season when the FAA reviews proposed flights for facilitation in the next corresponding scheduling season. However, the FAA notes that the usual Level 2 processes include flexibility for the facilitator to prioritize planned flights, which are canceled in advance or on the day of the scheduled operation due to operational impacts that are beyond the control of the carrier.
On December 22, 2023, Airlines for America (A4A) filed a petition on behalf of member and associate member airlines
A4A indicates “the nighttime closing of the main runway 1-19, which will significantly impact carriers that hold slots in the 2300 hour by forcing them to utilize runway 15-33 or not operate at all during those times.” A4A notes that “for many carriers, the option to use runway 15-33 will have a significant negative impact because some aircraft such as the 737-900/ER/MAX are unable to use that runway” and “other aircraft will need to apply hefty payload penalties to operate on runway 15-33, for example some aircraft would need to reduce between 50 and 75 passengers on all but the shortest routes.”
A4A also requests relief for slot pairs associated with the 2300-0559 closure period, noting carriers may seek alleviation for the slot pairs affected by the closures, which may be outside the 2300-0600 hours and requests the FAA “work with carriers on an individual basis to determine their slot pairing needs and requests as carriers' monthly schedules develop.”
In addition, A4A requests relief for slot usage associated with several operations between DCA and JFK, EWR, or LGA. Specifically, A4A requests the FAA grant slot usage or schedule alleviation to “departure slots between 2100 and 2200 used for nonstop service to DCA, as such flights typically arrive at DCA in the 2300 hour” and “for any DCA departure slots between 0500 and 0659 used for nonstop service to those slot-controlled or schedule facilitated New York airports.”
The FAA has determined the DCA airport construction and runway closures warrant limited, conditional relief from the minimum slot usage requirements because the impacts to operations in certain hours are beyond the carriers' control and will exist for several months. The closures from 2300-0559 Eastern Time are expected to impact operations as described by A4A.
DCA is a high-demand airport, and carriers have indicated they plan to operate flights if feasible. There are typically 15 to 16 arrivals in the 2300 hour with the corresponding aircraft used for departures in the morning hours with additional potential for a few cancellations in the late evening hours and the corresponding departures. The FAA is not limiting the relief to certain hours in order to provide some degree of flexibility to carriers to allow them to balance schedules and slot pairs. However, the FAA may require carriers to justify how returned slots are impacted by the runway closure if returned slots are not during or adjacent to the runway closure periods.
The FAA will work individually with carriers on retiming and schedule adjustment options; however, the FAA will not retime air carrier operations into hours that are currently at the air
In addition, the FAA is extending a limited, conditional waiver from minimum usage requirements at JFK and LGA and providing similar relief at EWR under the Level 2 process for departure slots or approved schedules between 2100 and 2200 used for nonstop service to DCA, as well as slots or approved schedules associated with a DCA departure between 0500 and 0659 used for nonstop service to those slot-controlled or schedule facilitated New York City area airports. Carriers may also choose to use those slots at JFK and LGA or the approved runway times at EWR for operations to other markets than DCA.
The FAA will treat as used the specific slots impacted by the construction for the period from March 31, 2024, through October 26, 2024. This provides some time before and after the currently planned runway closure dates to accommodate potential changes to the construction schedule and provides carriers that may need some relief on either side of the current anticipated construction dates to phase in or phase out current operations. The relief is subject to the following conditions:
1. The specific slots must be returned to the FAA at least four weeks prior to the date of the FAA-approved operation, by submission to
2. Slots newly allocated after December 15, 2023, for initial use before October 26, 2024, are not eligible for relief.
3. Slots authorized at DCA by Department of Transportation or FAA exemptions are not eligible for relief.
4. At JFK, LGA, and EWR only departure slots or approved schedules between 2100 and 2200 used for nonstop service to DCA and slots or approved schedules associated with a DCA departure between 0500 and 0659 used for nonstop service to those slot-controlled or schedule facilitated New York City area airport are eligible for relief.
Bureau of Industry and Security, Department of Commerce.
Final rule.
In response to the Russian Federation's (Russia's) ongoing aggression against Ukraine and Belarus's complicity in the invasion, the Department of Commerce is strengthening its existing sanctions under the Export Administration Regulations (EAR) against Russia and Belarus, including by expanding the scope of the EAR's Russian and Belarusian Industry Sector Sanctions and making certain changes to the licensing requirements that apply to the occupied Crimea region of Ukraine as well. Additionally, this rule revises recent restrictions targeting Iran's supply of Unmanned Aerial Vehicles to Russia. This rule also refines certain existing export controls on Russia and Belarus. The Department of Commerce is taking these actions to enhance the effectiveness of its controls on these countries and to better align them with those implemented by U.S. allies and partners.
This rule is effective on January 23, 2024.
For general questions on this final rule, contact Eileen Albanese, Director, Office of National Security and Technology Transfer Controls, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482-0092, Fax: (202) 482-482-3355, Email:
In response to Russia's February 2022 further invasion of Ukraine, BIS imposed extensive sanctions on Russia under the Export Administration Regulations (15 CFR parts 730 through 774) (EAR) as part of the final rule “Implementation of Sanctions Against Russia Under the Export Administration Regulations (EAR)” (the Russia Sanctions Rule) (87 FR 12226, March 3, 2022). To address Belarus's complicity in the invasion, BIS imposed similar sanctions on Belarus under the EAR in a final rule, “Implementation of Sanctions Against Belarus” (“Belarus Sanctions Rule”) (87 FR 13048, March 6, 2022). During the last two years, BIS has published a number of additional final rules strengthening the export controls on Russia and Belarus, including measures undertaken in coordination with U.S. allies and partners.
Most recently, BIS strengthened its existing sanctions under the EAR against Russia and Belarus, including by expanding the scope of the EAR's Russian and Belarusian Industry Sector Sanctions and by expanding the foreign direct product rule that already applied to Russia and Belarus to apply as well to the Crimea region of Ukraine, which has been occupied by Russia since 2014 (88 FR 33422, May 22, 2023). Additionally, that rule revised restrictions implemented in a February 2023 rule, “Export Control Measures Under the Export Administration Regulations (EAR) to Address Iranian Unmanned Aerial Vehicles (UAVs) and Their Use by the Russian Federation,” targeting Iran's supply of Unmanned Aerial Vehicles (UAVs) to Russia and refined existing export controls on Russia and Belarus (Iran UAV rule) (88 FR 12150, February 27, 2023). The Department of Commerce took these actions to enhance the effectiveness of its controls on these countries and to better align them with those implemented by U.S. allies and partners.
Taken together, these actions under the EAR reflect the U.S. Government's position that Russia's invasion of Ukraine and Belarus's complicity in the invasion, flagrantly violate international law, are contrary to U.S. national security and foreign policy interests, and undermine global order, peace, and security.
The export control measures in this final rule build upon the policy objectives set forth in the earlier rules referenced above. The adoption of these measures, undertaken in part to better align U.S. controls with the stringent measures implemented by partners and allies, will enhance the effectiveness of the multilateral sanctions on Russia by further limiting Russia's access to items that enable its military capabilities and to sources of revenue that could support those capabilities. Additionally, the new or expanded controls specified in this rule target Belarus as part of the U.S. response to the country's complicity in
This rule revises the EAR to enhance and strengthen the existing sanctions against Russia and Belarus by expanding the scope of the Russian and Belarusian industry sector sanctions to better align them with the controls that have been implemented by U.S. allies and partners imposing substantially similar controls on Russia and Belarus, including a control added on Iran pursuant to the Iran UAV rule, that targeted Iran's supply of UAVs to Russia (88 FR 12150, February 27, 2023) (Iran UAVs rule). For similar policy reasons, this rule also refines other controls on Russia and Belarus that were imposed in response to Russia's February 2022 further invasion of Ukraine.
This rule enhances and strengthens the sanctions that have been implemented on Russia, Belarus, the occupied Crimea region of Ukraine, and Iran under the EAR, as described under sections A and B below. The regulatory revisions described under
• Expansion of Russian and Belarusian Industry Sector Sanctions that apply to items listed in supplement no. 4 to part 746 to add additional items to align with controls imposed by U.S. partners and allies and to make other changes to render the EAR's controls stronger, more effective, and easier to understand;
• Expansion of items that require a license under § 746.7 when destined to Iran and under § 746.8 when destined to Russia or Belarus under supplement no. 7 to part 746 to add an additional item to align with controls imposed by U.S. partners and allies and to make other changes to render the EAR's controls stronger, more effective, and easier to understand;
• Eliminating the lowest-level military and spacecraft-related items (
This rule expands the scope of the Russian and Belarusian Industry Sector Sanctions (§ 746.5 of the EAR) by adding additional items to supplement no. 4 to part 746 that will require a license under § 746.5(a)(1)(ii), as described further below. This rule also adds an additional item to supplement no. 7 to part 746 that will require a license under § 746.7 when destined to Iran and under § 746.8 when destined to Russia or Belarus.
This rule expands the list of items set forth in supplement no. 4 to part 746 (Russian and Belarusian Industry Sector Sanctions Pursuant to § 746.5(a)(1)(ii)). Specifically, this rule adds 94 additional Harmonized Tariff Schedule (HTS)-6 Code entries to supplement no. 4; consequently, these items will now require a license for export, reexport to, or transfer within Russia or Belarus under § 746.5(a)(1)(ii). Restrictions on these 94 groups of industrial items are intended to further undermine the Russian and Belarusian industrial bases and their ability to continue to support Russia's military aggression in Ukraine. The items added include a variety of industrial materials, items needed for manufacturing, and certain aircraft-related items. The complete list of 94 new HTS-6 Codes this rule adds to supplement no. 4 are identified in amendatory instruction 10.
In May 2023, BIS imposed controls on entire harmonized system chapters 84, 85, and 90 in supplement no. 4 to part 746 of the EAR. With this new rule, BIS will notably be controlling all of harmonized system chapter 88 as well. Chapter 88 is focused on aircraft, spacecraft, and parts thereof, and there is significant overlap between items in this chapter and items classified in Category 9 of the Commerce Control List (see,
Items controlled through amendments made by this rule were identified based on a review of public and non-public information regarding which items Russia seeks to further its war against Ukraine, an evaluation of areas in which U.S. trade has continued to provide an economic benefit to Russia, and an assessment of how the United States could better align with its allies and partners to degrade Russia's war effort. BIS estimates these changes to supplement no. 4 to part 746 will result in an additional 25 license applications submitted to BIS annually.
In supplement no. 7 to part 746 (Items That Require a License Under § 746.6 When Destined to the Temporarily Occupied Crimea region of Ukraine, Under § 746.7 When Destined to Iran, and Under § 746.8 When Destined to Russia or Belarus), this rule expands the list of items that require a license by adding one additional HTS-6 Code entry (852910) to supplement no. 7; consequently, items classified under this HTS-6 entry will now require a license for export or reexport to Iran under § 746.7(a)(1)(ii) and to Russia and Belarus under § 746.8(a)(2). The restrictions on these items are intended to further undermine Iran's ability to support the Russian and Belarusian industrial bases that have in turn provided support for Russia's military
This rule revises § 734.4 (
Some of the EAR's Russia and Belarus-related provisions discussed above in Section A with respect to the additional controls being imposed on Russia and Belarus are also discussed here because this rule makes corrections and clarifications with respect to those provisions. The regulatory revisions described under
• Addition of exclusion from license requirements under § 746.6 for exports, reexports, and transfers (in-country) related to deployments by the Armed Forces of Ukraine to or within the temporarily occupied Crimea region of Ukraine and covered regions of Ukraine;
• Clarification that U.S.-origin controlled content that meets the criteria in new § 746.10(a)(3) is excluded from
• Clarification regarding which EAR section takes precedence when determining licensing requirements that apply to items identified in supplements no. 2, 4, or 5 to part 746 that are also classified in an ECCN under §§ 746.5, 746.8, and 746.10;
• Clarification that fasteners are excluded from the scope of supplement nos. 2, 4, 5, and 7, but are subject to the license requirements under § 744.21 for Russia and Belarus, as well as any other part 744 license requirement that applies to all items subject to the EAR;
• Harmonization of License Exceptions available under §§ 746.5, 746.8, and 746.10, except as limited in the introductory text of the respective paragraph (c);
• Clarification that “medicines” are excluded from the scope of supplement no. 6 to part 746;
• Conforming change to adopt case-by-case license review policy for applications related to the safety of flight under §§ 746.5 and 746.10 to conform with § 746.8;
• Clarification that the import restrictions on the temporary import of firearms from Ukraine do not apply to firearms that were previously exported, reexported, or transferred (in-country) under a BIS license that are being temporarily returned to the United States for repair and servicing.
BIS anticipates that the changes discussed in section B will not result in the submission of any additional license applications to BIS.
In § 746.6, this rule adds an exclusion from the license requirements for exports, reexports, and transfers (in-country) to or within the temporarily occupied Crimea region of Ukraine and covered regions of Ukraine related to deployments made by the Armed Forces of Ukraine. This exclusion is added to facilitate the operations of the Armed Forces of Ukraine (AFU or ZSU) within the temporarily occupied Crimea region of Ukraine and covered regions of Ukraine. This change is intended to make their deployments more efficient and effective.
In § 746.10 (`Luxury goods' sanctions against Russia and Belarus and Russian and Belarusian oligarchs and malign actors), this rule adds a new paragraph (a)(3) (Exclusion from scope of U.S.-origin controlled content under paragraphs (a)(1) and (2) of this section). Currently, certain U.S.-origin EAR99 items are not considered U.S. controlled content for purposes of the EAR's
As a conforming change to the clarification to § 746.10, this final rule revises supplement no. 2 to part 734 (Guidelines for
This rule revises the introductory text in §§ 746.5 and 746.10 and makes a conforming change to § 746.8 to clarify how exporters should treat items that are controlled to Russia or Belarus by more than one section of the EAR. Specifically, in §§ 746.5 and 746.10, this rule revises paragraph (a) introductory text to establish an order of review for purposes of the license requirements, license exceptions, and license review policies that apply to any item that is both classified in an Export Control Classification Number (ECCN) on the Commerce Control List (CCL) in supplement no. 1 to part 774, and identified in supplement no. 4, 5, or 6 to part 746. BIS has imposed export controls on Russia and Belarus under three different sections of the EAR, sometimes using different classification methods. Under § 746.5, BIS largely imposes controls on Russia using HTS-6 code (see supplement no. 4 to part 746 of the EAR) or description (see supplement no. 6 to part 746 of the EAR). Under § 746.10, BIS imposes controls on Russia using HTS-6 codes (see supplement no. 5 to part 746 of the EAR). However, under § 746.8, BIS largely imposes controls using ECCNs.
In § 746.5, this rule adds two sentences to the end of the paragraph (a) introductory text to clarify two points. First, that a license is not required under § 746.5(a)(1)(ii) or (iii) for any item that is listed in supplement no. 4 or 6 and classified in an ECCN. Second, that exporters, reexporters, and transferors should consult § 746.8 for license requirements, license exceptions, and license review policies that apply to items classified under ECCNs. In this way, this amendment clarifies that controls in § 746.8 should be reviewed before controls in § 746.5. However, this rule does not make any changes to § 746.5(a)(1)(i), which imposes end-use specific controls on items described in supplement no. 2 to part 746. This is because that provision's end-use control applies more broadly than the destination scope in § 746.8, and that control continues to apply even for items listed in supplement no. 2 to part 746 and classified in an ECCN. For the same reason, in § 746.10, this rule revises the paragraph (a) introductory text to clarify two similar points as in § 746.5. First, that for purposes of § 746.10(a)(1), this rule specifies that a license is not required for any item that is listed in supplement no. 5 and classified in an ECCN. Second, this rule adds a sentence to direct exporters, reexporters, and transferors to see § 746.8 for license requirements, license exceptions, and license review policies for exports, reexports, and transfers to or within Russia or Belarus for items classified under ECCNs. This rule does not exclude any item that is listed in supplement no. 5 and is classified in an ECCN from the scope of the license requirements under § 746.10(a)(2) because this is a worldwide end-user license requirement, which has a much broader destination scope than § 746.8. Because of the narrowed scope of the ECCN controls under § 746.10, this rule removes the exclusion from the paragraph (a) introductory text for ECCNs 5A991, 5A992.c, and 5D992.c because it is no longer needed.
In § 746.8, this rule adds a sentence to the end of the paragraph (a) introductory text to specify that this section is used for determining license requirements for exports, reexports, and transfers to or within Russia or Belarus of any item that is listed in supplement nos. 4 through 6 and is classified in an ECCN. This rule also adds a second sentence to direct exporters, reexporters, and transferors to see §§ 746.5 and 746.10 for license requirements, license review policies, and license exceptions for exports, reexports, and transfers (in-country) to or within Russia or Belarus of any EAR99-designated item that is also listed in supplement nos. 4 through 6, and to also consult the end-use and end-user controls under part 744 of the EAR. This rule adds a third sentence to specify that this ECCN exclusion from the scope of the license requirements in §§ 746.5 and 746.10 is not applicable to the end-use license requirements imposed under § 746.5(a)(1)(i) or the end-user license requirements imposed under § 746.10(a)(2).
Supplement nos. 2, 4, 5, and 7 to part 746 include text that specifies that items described in each of these supplements include any modified or designed “components,” “parts,” “accessories,” and “attachments” therefor regardless of the HTS Code or HTS Description of the “components,” “parts,” “accessories,” and “attachments,” apart from any “part” or minor “component” that is a fastener (
In §§ 746.5, 746.8, and 746.10, this rule revises paragraph (c) (License exceptions) for each of these three sections to adopt a common set of license exceptions that are available for the Russia and Belarus controls being implemented under part 746 of the EAR. In order to use any EAR License Exception, the export, reexport, or transfer (in-country) must not be otherwise restricted under § 740.2 and must meet all of the applicable terms and conditions of the referenced license exception. Because of the differences in scope between supplement nos. 2, 4, 5, and 6, as well as some of the differences referenced in §§ 746.5, 746.8, and 746.10, BIS has not allowed license exceptions for all Russia controls equally. In general, there have been good reasons for this; for example, there is no reason to add a license exception for a CCL item in a section of the EAR that does not apply to CCL items. However, BIS has found that in some cases, this approach to license exception eligibility has caused confusion, such as when a particular item is controlled under multiple provisions, only one of which is eligible for a particular license exception. This rule adopts a common set of license exceptions for all three sections. BIS notes that the change described under section B.3 of this rule (
This rules also places the License Exceptions in numerical order for ease of reference under each of the paragraph (c) references. This rule does not adopt a common set of License Exceptions for § 746.6 (on the Temporarily occupied Crimea region of Ukraine and covered regions of Ukraine) and does not expand the scope of license exceptions available to overcome the end-user license requirements under § 746.10(a)(2) because changes are not warranted for those sections. For ease of reference, BIS has set out a short table below with the License Exceptions in one column and then three additional columns for §§ 746.5, 746.8, and 746.10 indicating the availability of each License
BIS cautions exporters, reexporters, and transferors that a license exception or portion of a license exception that is referenced as being available under §§ 746.5, 746.8, and 746.10 is only the first step in determining whether the referenced EAR license exception or portion of such license exception may actually be used. The exporter, reexporter, or transferor must then review § 740.2 to confirm that none of the general restrictions on the use of EAR License Exceptions apply, followed by a review to determine whether the contemplated transaction meets all of the applicable terms and conditions of the referenced license exception.
In supplement no. 6 to part 746 (Russian and Belarusian Industry Sector Sanctions Pursuant to § 746.5(a)(1)(iii)), this rule adds one sentence to the end of the introductory text to the supplement to specify that this supplement does not include any item that meets the definition of “medicine” in § 772.1 of the EAR. Under the EAR, including Russia and Belarus sanctions, “medicines” means a “drug” as defined in section 201 of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 321). For purposes of the EAR, medicine includes EAR99 prescription and over the counter medicines for humans and animals. This rule specifies here that certain medicines, such as certain vaccines and immunotoxins, are on the Commerce Control List and are not affected by this change.
This rule also makes a conforming change to the licensing policy in §§ 746.5(b)(2) and 746.10(b) to add applications related to safety of flight to the case-by-case license review policy under these two sections for consistency with the licensing policy in § 746.8(b). This conforming change is made because certain EAR99 items used in aircraft that may be related to safety of flight are identified in supplement nos. 4 and 5 and license applications for these items should be reviewed consistently with the license review policy in § 746.8. Specifically, in § 746.5, this rule adds a new paragraph (b)(2)(i) to add applications related to safety of flight to the case-by-case license review policy and redesignates existing paragraphs (b)(2)(i) through (v) as paragraphs (b)(2)(ii) through (vi), respectively. In § 746.10, this rule revises paragraph (b) (Licensing policy) to add a new paragraph (b)(1) (Presumption of denial) and adds a new paragraph (b)(2) (Case-by-case) to specify the license applications that will be reviewed under a case-by-case licensing policy. This rule adds a new paragraph (b)(2)(i) for the case-by-case licensing policy for applications related to safety of flight and adds new paragraphs (b)(2)(ii) and (iii) for the previous case-by-case licensing policies that already applied under paragraph (b) of § 746.10.
BIS reminds applicants that BIS and the other license review agencies have used a narrow and restrictive interpretation of what items would qualify for the “related to safety of flight” category set forth in § 746.8(b)(2)(i). When BIS originally added the case-by-case license review policy to § 746.8(b), BIS provided guidance as part of BIS's outreach on the Russia sanctions, such as at BIS conferences and outreach seminars, to clarify that falling within this safety of flight-related category would have to satisfy a strict standard and would not apply broadly to all items used on an aircraft, but only to those items without which an aircraft would be unable to be safely operated. BIS does not intend that this category apply to aircraft that are in “production,” only those that require safety-critical items in an emergency. Since that time, BIS has consistently maintained this position in its review of applications as well as in outreach efforts.
BIS has authorized under BIS licenses the export and reexport to Ukraine of various firearms subject to the EAR since the Russian invasion of Ukraine. BIS has received questions from the public on whether it would be permissible to temporarily return those firearms to the United States for repair and servicing and to subsequently return those firearms under License Exception Replacement of Parts and Equipment (RPL) (§ 740.10(b)) or under a new BIS license if the capabilities of the firearms were changed as a result of such repair and servicing. BIS will be updating the “Exports of Firearms and Related Items FAQs” on the BIS website at
For the changes being made in this final rule, shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on January 23, 2024, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR), provided the export, reexport, or transfer (in-country) is completed no later than on February 22, 2024.
On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (codified, as amended, at 50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule. To the extent it applies to certain activities that are the subject of this rule, the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA) (codified, as amended, at 22 U.S.C. 7201-7211) also serves as authority for this rule.
1. BIS has examined the impact of this rule as required by Executive Orders 12866, 13563, and 14094, which 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). This final rule has been determined to be not significant for purposes of Executive Order 12866.
2. Notwithstanding any other provision of 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 Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This rule involves the following OMB-approved collections of information subject to the PRA:
• 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 29.4 minutes for a manual or electronic submission;
• 0694-0096 “Five Year Records Retention Period,” which carries a burden hour estimate of less than 1 minute; and
• 0607-0152 “Automated Export System (AES) Program,” which carries a burden hour estimate of 3 minutes per electronic submission.
BIS estimates that these new controls on Russia, Belarus, and Iran under the EAR will result in an increase of 35 license applications submitted annually to BIS. However, the additional burden falls within the existing estimates currently associated with these control numbers. Additional information regarding these collections of information—including all background materials—can be found at
3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.
4. Pursuant to section 1762 of the Export Control Reform Act of 2018 (50 U.S.C. 4821) (ECRA), this action is exempt from the Administrative Procedure Act (APA) (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date. While section 1762 of ECRA provides sufficient authority for such an exemption, this action is also independently exempt from these APA requirements because it involves a military or foreign affairs function of the United States (5 U.S.C. 553(a)(1)).
5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601,
Administrative practice and procedure, Exports, Inventions and patents, Research, Science and technology.
Exports, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, parts 734 and 746 of the Export Administration Regulations (15 CFR parts 730 through 774) are amended as follows:
50 U.S.C. 4801-4852; 50 U.S.C. 4601
(a) * * *
(6) * * *
(ii) There is no
(a) * * *
(1) * * * For purposes of identifying U.S.-origin controlled content, you should consult the Commerce Country Chart in supplement no. 1 to part 738 of the EAR and controls described in part 746 of the EAR (excluding U.S.-origin content that meets the criteria in § 746.5(a)(3), § 746.7(a)(1)(v), § 746.8(a)(5), or § 746.10(a)(3)). * * *
50 U.S.C. 4801-4852; 50 U.S.C. 4601
The revisions and addition read as follows:
(a)
(b) * * *
(2) * * *
(i) Applications related to safety of flight;
(c)
(1) License Exception TMP for items for use by the news media as set forth in § 740.9(a)(9) of the EAR.
(2) License Exception GOV (§ 740.11(b) of the EAR).
(3) License Exception TSU for software updates for civil end-users that are wholly-owned U.S. subsidiaries, branches, or sales offices, foreign subsidiaries, branches, or sales offices of U.S. companies that are joint ventures with other U.S. and companies, joint ventures of U.S. companies with companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740 of the EAR countries, the wholly-owned subsidiaries, branches, or sales offices of companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740, or joint ventures of companies headquartered in Country Group A:5 and A:6 with other companies headquartered in Country Groups A:5 and A:6 (§ 740.13(c) of the EAR).
(4) License Exception BAG, excluding firearms and ammunition (§ 740.14, excluding paragraph (e), of the EAR).
(5) License Exception AVS, excluding any aircraft registered in, owned or controlled by, or under charter or lease by Russia or Belarus or a national of Russia or Belarus (§ 740.15(a) and (b) of the EAR).
(6) License Exception encryption commodities, software, and technology (ENC) for civil end-users that are wholly-owned U.S. subsidiaries, branches, or sales offices, foreign subsidiaries, branches, or sales offices of U.S. companies that are joint ventures with other U.S. companies, joint ventures of U.S. companies with companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740 of the EAR countries, the wholly-owned subsidiaries, branches, or sales offices of companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740, or joint ventures of companies headquartered in Country Group A:5 and A:6 with other companies headquartered in Country Groups A:5 and A:6 (§§ 740.13(c) and 740.17 of the EAR).
(7) License Exception CCD (§ 740.19 of the EAR).
(a) * * *
(5)
The additions and revision read as follows:
(a) * * * This section is also used for determining license requirements for exports, reexports, and transfers to or within Russia or Belarus of any item that is listed in supplement nos. 4 through 6 to this part and is classified in an Export Control Classification Number (ECCN) on the Commerce Control List (CCL) in supplement no. 1 to part 774 of the EAR. See §§ 746.5 and 746.10 for license requirements, license review policies, and license exceptions for exports, reexports, and transfers (in-country) to or within Russia or Belarus of any EAR99-designated item that is also listed in supplement nos. 4 through 6 and the end-use and end-user controls under part 744 of the EAR. This ECCN exclusion from the scope of the license requirements from §§ 746.5 and 746.10 is not applicable to the end-use license requirements imposed under § 746.5(a)(1)(i) or the end-user license requirements imposed under § 746.10(a)(2).
(c)
(1) License Exception TMP for items for use by the news media as set forth in § 740.9(a)(9) of the EAR.
(2) License Exception GOV (§ 740.11(b) of the EAR).
(3) License Exception TSU for software updates for civil end-users that are wholly-owned U.S. subsidiaries, branches, or sales offices, foreign subsidiaries, branches, or sales offices of U.S. companies that are joint ventures with other U.S. and companies, joint ventures of U.S. companies with companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740 of the EAR countries, the wholly-owned subsidiaries, branches, or sales offices of companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740, or joint ventures of companies headquartered in Country Group A:5 and A:6 with other companies headquartered in Country Groups A:5 and A:6 (§ 740.13(c) of the EAR).
(4) License Exception BAG, excluding firearms and ammunition (§ 740.14, excluding paragraph (e), of the EAR).
(5) License Exception AVS, excluding any aircraft registered in, owned or controlled by, or under charter or lease by Russia or Belarus or a national of Russia or Belarus (§ 740.15(a) and (b) of the EAR).
(6) License Exception ENC for civil end-users that are wholly-owned U.S. subsidiaries, branches, or sales offices, foreign subsidiaries, branches, or sales offices of U.S. companies that are joint ventures with other U.S. companies, joint ventures of U.S. companies with companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740 of the EAR countries, the wholly-owned subsidiaries, branches, or sales offices of companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740, or joint ventures of companies headquartered in Country Group A:5 and A:6 with other companies headquartered in Country Groups A:5 and A:6 (§§ 740.13(c) and 740.17 of the EAR).
(7) License Exception CCD (§ 740.19 of the EAR).
The revisions and additions read as follows:
(a)
(3)
(i) The U.S.-origin content is described in supplement no. 5 to this part and is not otherwise excluded from the applicable Scope column in supplement no. 3 to this part; and
(ii) The foreign made item will be reexported or exported from abroad from a country described in supplement no. 3 to this part.
(b)
(2)
(i) Applications related to safety of flight;
(ii) Applications involving items to meet humanitarian needs. The case-by-case license application review policy for items to meet humanitarian needs is included to address certain `luxury goods' items that may be used in medical devices or situations in which a case-by-case analysis is needed to determine whether a license application should be approved to meet humanitarian needs while also taking into account the applicable broader U.S. national security and foreign policy concerns; and
(iii) Applications for the disposition of items by companies not headquartered in Country Group D:1, D:5, E:1 or E:2 in supplement no. 1 to part 740 of the EAR that are curtailing or closing all operations in Russia or Belarus; and replacement licenses for exports and reexports to and transfers within Russia and Belarus to add items described in Harmonized Tariff Schedule (HTS)-6 Codes that were added to the EAR after the effective validation date of the BIS license.
(c)
(1) License Exception TMP for items for use by the news media as set forth in § 740.9(a)(9) of the EAR.
(2) License Exception GOV (§ 740.11(b) of the EAR).
(3) License Exception TSU for software updates for civil end-users that are wholly-owned U.S. subsidiaries, branches, or sales offices, foreign subsidiaries, branches, or sales offices of U.S. companies that are joint ventures with other U.S. and companies, joint ventures of U.S. companies with companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740 of the EAR countries, the wholly-owned subsidiaries, branches, or sales offices of companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740, or joint ventures of companies headquartered in Country Group A:5 and A:6 with other companies headquartered in Country Groups A:5 and A:6 (§ 740.13(c) of the EAR).
(4) License Exception BAG, excluding firearms and ammunition (§ 740.14, excluding paragraph (e), of the EAR).
(5) License Exception AVS, excluding any aircraft registered in, owned or controlled by, or under charter or lease by Russia or Belarus or a national of Russia or Belarus (§ 740.15(a) and (b) of the EAR).
(6) License Exception ENC for civil end-users that are wholly-owned U.S. subsidiaries, branches, or sales offices, foreign subsidiaries, branches, or sales offices of U.S. companies that are joint ventures with other U.S. companies, joint ventures of U.S. companies with companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740 of the EAR countries, the wholly-owned subsidiaries, branches, or sales offices of companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740, or joint ventures of companies headquartered in Country Group A:5 and A:6 with other companies headquartered in Country Groups A:5 and A:6 (§§ 740.13(c) and 740.17 of the EAR).
(7) License Exception CCD (§ 740.19 of the EAR).
(a) * * * Although fasteners (
The additions read as follows:
(a) * * * Although fasteners (
(a) * * * Although fasteners (
The additions read as follows:
(a) * * * Although fasteners (
Bureau of Ocean Energy Management, Interior.
Final rule.
This final rule implements the 2024 inflation adjustments to the maximum daily civil monetary penalties in the Bureau of Ocean Energy Management's (BOEM) regulations for violations of the Outer Continental Shelf Lands Act (OCSLA) and the Oil Pollution Act of 1990 (OPA). These inflation adjustments are made pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Improvements Act) and Office of Management and Budget (OMB)
This rule is effective on January 25, 2024.
Questions regarding the inflation adjustment methodology or amount should be directed to Jayson Pollock, Economics Division, BOEM, at
OCSLA authorizes the Secretary of the Interior (the Secretary) to impose a daily civil monetary penalty for a violation of OCSLA or its implementing regulations, leases, permits, or orders. It also directs the Secretary to adjust the maximum penalty at least every 3 years to reflect any inflation increase in the Consumer Price Index. 43 U.S.C. 1350(b)(1). Similarly, OPA authorizes civil monetary penalties for failure to comply with OPA's financial responsibility provisions or its implementing regulations. 33 U.S.C. 2716a(a). OPA does not include a maximum daily civil penalty inflation adjustment provision, but such adjustment is authorized by the Improvements Act.
The Improvements Act
BOEM implemented the 2023 inflation adjustment for its civil monetary penalties through a final rule entitled “2023 Civil Penalties Inflation Adjustments for Oil, Gas, and Sulfur Operations in the Outer Continental Shelf,” which was published in the
OMB memorandum M-24-07
Pursuant to the Improvements Act and OMB M-24-07, this final rule implements BOEM's 2024 inflation adjustments to OCSLA and OPA maximum daily civil monetary penalties. A proposed rule is unnecessary as the Improvements Act expressly exempts annual civil penalty inflation adjustments from the Administrative Procedure Act's (APA) notice of proposed rulemaking, public comment, and standard effective date provisions. Improvements Act, Public Law 114-74, sec. 701(b)(1)(D); APA, 5 U.S.C. 553.
On July 22, 2021, BOEM issued a final rule entitled “Maximum Daily Civil Penalty Amounts for Violations of the Federal Oil and Gas Royalty Management Act” (86 FR 38557). The rule amended BOEM's regulations that set maximum daily civil penalty (MDCP) amounts for violations of the Federal Oil and Gas Royalty Management Act (FOGRMA). The amendment cross-referenced BOEM's regulations to the Office of Natural Resources Revenue (ONRR) regulations that also set MDCP amounts for FOGRMA violations. This cross-reference ensured consistency between BOEM's FOGRMA MDCP amounts and ONRR's FOGRMA MDCP amounts. Because ONRR annually adjusts its MDCP for inflation, the cross-referencing rule also ensured consistent compliance with the Improvements Act and related OMB guidance while reducing possible confusion among regulated parties and unnecessary duplication of effort and costs to the Federal Government. The cross-reference to ONRR's regulations relieves BOEM of the necessity to adjust its FOGRMA MDCP.
In accordance with the Improvements Act, BOEM determined that OCSLA and OPA maximum daily civil monetary penalties require annual inflation adjustments. BOEM issues this final rule adjusting those penalty amounts for inflation through October 2023. The annual inflation adjustment is based on the percent change between the Consumer Price Index for All Urban Consumers (CPI-U) for the October preceding the date of the adjustment and the prior year's October CPI-U. Consistent with OMB M-24-07, the 2024 inflation adjustment multiplier can be calculated by dividing the October 2023 CPI-U by the October 2022 CPI-U. In this case, October 2023 CPI-U (307.671)/October 2022 CPI-U (298.012) = 1.03241.
For 2024, BOEM multiplied the current OCSLA maximum daily civil monetary penalty of $52,646 by the multiplier 1.03241, which equals $54,352.26. The Improvements Act requires that the resulting amount then be rounded to the nearest dollar. Accordingly, the 2024 adjusted OCSLA maximum daily civil monetary penalty is $54,352.
For 2024, BOEM multiplied the current OPA maximum daily civil penalty amount of $55,808 by the multiplier 1.03241, which equals $57,616.74. The Improvements Act requires that the resulting amount then be rounded to the nearest dollar. Accordingly, the 2024 adjusted OPA maximum daily civil monetary penalty is $57,617.
The adjusted penalty amounts take effect immediately upon publication of this rule. Under the Improvements Act, the adjusted amounts apply to civil penalties assessed after the date the increase takes effect, even if the associated violation predates the increase.
This table summarizes BOEM's 2024 maximum daily civil monetary penalties for each OCSLA and OPA violation:
This rule does not constitute a major Federal action under the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321
The Regulatory Flexibility Act (RFA, 5 U.S.C. 601
This rule does not contain information collection requirements, and, therefore, a submission to OMB under the Paperwork Reduction Act (44 U.S.C. 3501
This rule does not impose an unfunded mandate on State, local, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. The rule does not have a significant or unique effect on State, local, or Tribal Governments, or on the private sector. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This rule is not a major rule under 5 U.S.C. 804(2). This rule:
(a) will not have an annual effect on the economy of $100 million or more;
(b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and
(c) will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
Pursuant to the Congressional Review Act (5 U.S.C. 801
This rule does not effect a taking of private property or otherwise have takings implications under E.O. 12630. Therefore, a takings implication assessment is not required.
E.O. 12866, as amended by E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA determined that annual civil penalty inflation adjustment rules are not significant if they exclusively implement the annual inflation adjustment consistent with OMB guidance and have an annual impact of less than $200 million.
E.O. 13563 reaffirms the principles of E.O. 12866, as amended by E.O. 14094, while calling for improvements in the Nation's regulatory system to reduce uncertainty and to promote predictability and for the use of the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where
This rule complies with the requirements of E.O. 12988. Specifically, this rule:
(a) meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rule merely adjusts the dollar amount of civil monetary penalties that BOEM may impose on oil and gas lessees, grant holders, and operators on the Outer Continental Shelf and has no effects on any action of State or local governments. Therefore, a federalism summary impact statement is not required.
The Department of the Interior and BOEM strive to strengthen their government-to-government relationships with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of the Tribes' right to self-governance and Tribal sovereignty. BOEM evaluated this rule under the Department of the Interior's consultation policy, Departmental Manual part 512 chapters 4 and 5, and E.O. 13175. BOEM determined that this rule has no substantial direct effects on federally recognized Indian Tribes or Alaska Native Claims Settlement Act Corporations and that consultation under existing Department and BOEM policies is not required.
This rule is not a “significant energy action” under the definition of that term found in E.O. 13211. Therefore, a statement of energy effects is not required.
Administrative practice and procedure, Continental shelf, Environmental impact statements, Environmental protection, Federal lands, Government contracts, Investigations, Mineral resources, Oil and gas exploration, Outer continental shelf, Penalties, Pipelines, Reporting and recordkeeping requirements, Rights-of-way, Sulfur.
Administrative practice and procedure, Continental shelf, Financial responsibility, Liability, Limit of liability, Oil and gas exploration, Oil pollution, Outer continental shelf, Penalties, Pipelines, Reporting and recordkeeping requirements, Rights-of-way, Surety bonds, Treasury securities.
This action by the Deputy Assistant Secretary is taken pursuant to an existing delegation of authority.
For the reasons stated in the preamble, BOEM amends 30 CFR parts 550 and 553 as follows:
30 U.S.C. 1751; 31 U.S.C. 9701; 43 U.S.C. 1334.
The maximum civil penalty is $54,352 per day per violation.
33 U.S.C. 2704, 2716; 2716a; E.O. 12777, as amended.
(a) If you fail to comply with the financial responsibility requirements of OPA at 33 U.S.C. 2716 or with the requirements of this part, then you may be liable for a civil penalty of up to $57,617 per COF per day of violation (that is, each day a COF is operated without acceptable evidence of OSFR).
Departmental Offices Treasury.
Final rule.
The Department of the Treasury (“Department” or “Treasury”) publishes this final rule to adjust its civil monetary penalties (“CMPs”) for inflation as mandated by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (collectively referred to herein as “the Act”).
Effective January 25, 2024.
For information regarding the Terrorism Risk Insurance Program's CMPs, contact Richard Ifft, Lead Management and Senior Insurance Policy Analyst, Terrorism Risk Insurance Program, Federal Insurance Office, Room 1410 MT, Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220, at (202) 622-2922 (not a toll-free number), or Sherry Rowlett, Program Analyst, Federal Insurance Office, at (202) 622-1890 (not a toll free number). Persons who have difficulty hearing or speaking may access these numbers via TTY by calling the toll-free Federal Relay Service at (800) 877-8339.
For information regarding the Treasury-wide CMPs, contact Richard Dodson, Senior Counsel, General Law, Ethics, and Regulation, 202-622-9949.
In order to improve the effectiveness of CMPs and to maintain their deterrent
The method of calculating CMP adjustments applied in this final rule is required by the 2015 Act. Under the 2015 Act and the Office of Management and Budget guidance required by the 2015 Act, annual inflation adjustments subsequent to the initial catch-up adjustment are to be based on the percent change between the Consumer Price Index for all Urban Consumers (“CPI-U”) for the October preceding the date of the adjustment and the prior year's October CPI-U. As set forth in Office of Management and Budget (OMB) Memorandum M-24-07 of December 19, 2023, the adjustment multiplier for 2024 is 1.03241. Under the 2015 Act, any increase in CMP must be rounded to the nearest multiple of $1.
With regard to the CMPs assessed under 31 U.S.C. 3802(a), the penalty amount for 2023 ($9,399) is multiplied by 1.03241, resulting in a maximum penalty amount of $9,704 for 2024.
With regard to the CMPs assessed under 31 U.S.C. 333(c), the first penalty under this section was adjusted to $9,399 in 2023. This amount is multiplied by 1.03241, resulting in a penalty of $9,704 for 2024. The second penalty under this section was adjusted to $46,989 in 2023. Multiplying this amount by 1.03241, results in a penalty of $48,512 for 2024.
Finally, with regard to the CMP assessed under Section 104 of Title I, Public Law 107-297, as amended, the penalty amount for 2023 ($1,643,738) is multiplied by 1.03241 resulting in a penalty of $1,697,012 for 2024.
The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 701(b)) requires agencies to make annual adjustments for inflation to CMPs, without needing to provide notice and the opportunity for public comment and a delayed effective date required by 5 U.S.C. 553. Additionally, the methodology used for adjusting CMPs for inflation is provided by statute, with no discretion provided to agencies regarding the substance of the adjustments for inflation to CMPs. The Department is charged only with performing ministerial computations to determine the dollar amount of adjustments for inflation to CMPs. Accordingly, prior public notice, an opportunity for public comment, and a delayed effective date are not required for this rule.
Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a significant regulatory action as defined in section 3.f of Executive Order 12866, as amended.
The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rule because there are no new or revised recordkeeping or reporting requirements.
Administrative practice and procedure, Claims, Fraud, Penalties.
Administrative practice and procedure, Penalties.
Insurance, Terrorism.
For the reasons set forth in the preamble, parts 16, 27, and 50 of title 31 of the Code of Federal Regulations are amended as follows:
31 U.S.C. 3801-3812.
(a) * * *
(1) * * *
(iv) Is for payment for the provision of property or services which the person has not provided as claimed, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $9,704 (2024) for each such claim.
(b) * * *
(1) * * *
(ii) Includes or is accompanied by an express certification or affirmation of the truthfulness and accuracy of the content of the statement, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $9,704 (2024) for each such statement.
31 U.S.C. 321, 333.
(c)
5 U.S.C. 301; 31 U.S.C. 321; Title I, Pub. L. 107-297, 116 Stat. 2322, as
(a)
Financial Crimes Enforcement Network (FinCEN), Treasury.
Final rule.
FinCEN is publishing this final rule to reflect inflation adjustments to its civil monetary penalties as mandated by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended. This rule adjusts certain maximum civil monetary penalties within the jurisdiction of FinCEN to the amounts required by that Act.
Effective January 25, 2024.
The FinCEN Regulatory Support Section at 1-800-767-2825 or electronically at
To improve the effectiveness of civil monetary penalties (CMPs) and to maintain their deterrent effect, the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Act)
The method of calculating CMP adjustments applied in this final rule is determined by the Act. Under the Act and Office of Management and Budget (OMB) guidance, annual inflation adjustments are to be based on the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) for the October preceding the date of the adjustment and the prior year's October CPI-U.
This final rule lists adjusted CMPs associated with violations of the Corporate Transparency Act (CTA)
Section 4(b) of the Act requires agencies, beginning in 2017, to make annual adjustments for inflation to CMPs notwithstanding the rulemaking requirements of 5 U.S.C. 553. Additionally, the methodology used for adjusting CMPs for inflation is provided by statute, with no discretion provided to agencies regarding the substance of the adjustments for inflation to CMPs. Accordingly, prior public notice and an opportunity for public comment and a delayed effective date are not required for this rule.
Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a significant regulatory action as defined in section
The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rule because there are no new or revised recordkeeping or reporting requirements.
Administrative practice and procedure, Aliens, Authority delegations (Government agencies), Banks and banking, Brokers, Business and industry, Commodity futures, Currency, Citizenship and naturalization, Electronic filing, Federal savings associations, Federal-States relations, Federally recognized tribes, Foreign persons, Holding companies, Indian law, Indians, Insurance companies, Investment advisers, Investment companies, Investigations, Law enforcement, Penalties, Reporting and recordkeeping requirements, Small businesses, Securities, Terrorism, Tribal government, Time.
For the reasons set forth in the preamble, part 1010 of chapter X of title 31 of the Code of Federal Regulations is amended as follows:
12 U.S.C. 1829b and 1951-1960; 31 U.S.C. 5311-5314 and 5316-5336; title III, sec. 314, Pub. L. 107-56, 115 Stat. 307; sec. 2006, Pub. L. 114-41, 129 Stat. 458-459; sec. 701, Pub. L. 114-74, 129 Stat. 599.
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce a security zone for all navigable waters within 400 yards of the Left Descending Bank (LDB) of the Lower Mississippi River (LMR) Mile Marker (MM) 94.4 to MM 95.1, Above Head of Passes (AHP), New Orleans, LA. This security zone is necessary to provide security and protection for visiting personnel during the events related to the Mardi Gras celebration. No person or vessel may enter this security zone unless authorized by the Captain of the Port New Orleans (COTP) or a designated representative.
The regulations in 33 CFR 165.846 will be enforced from noon on February 10, 2024, until 11:59 p.m. on February 13, 2024.
If you have questions about this rule, call or email Lieutenant Commander William A. Stewart, Sector New Orleans, U.S. Coast Guard; telephone 504-365-2246, email
The Coast Guard will enforce a security zone in 33 CFR 165.846 for events related to Mardi Gras Celebration from noon on February 10, 2024 until 11:59 p.m. on February 13, 2024. This action is being taken to provide security and protection for visiting personnel during the events related to the Mardi Gras celebration. The security zone will cover all navigable waters within 400 yards of the Left Descending Bank on the Lower Mississippi River from MM 94.4 to MM 95.1 AHP, New Orleans, LA. No person or vessel may enter this security zone unless authorized by the Captain of the Port New Orleans (COTP) or a designated representative. A designated representative means any Coast Guard commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of Sector New Orleans; to include a Federal, State, and/or local officer designated by or assisting the COTP in the enforcement of the security zone. To seek permission to enter, contact the COTP or a designated representative by telephone at (504) 365-2545 or VHF-FM Channel 16 or 67. Those in the security zone must transit at their slowest speed and comply with all lawful orders or directions given to them by the COTP or a designated representative.
In addition to this notification of enforcement in the
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce a safety zone for a fireworks display at “The Wharf DC” in Washington, DC, on February 10, 2024, or if necessary due to inclement weather, on February 17, 2024, to provide for the safety of life on navigable waterways during this event. Our regulation, “Safety Zones; Fireworks Displays within the Fifth Coast Guard District,” identifies its precise location. During the enforcement period, vessels may not enter, remain in, or transit through the safety zone unless authorized to do so by the COTP or his representative, and vessels in the vicinity must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.
The regulation in 33 CFR 165.506 will be enforced for the location identified in line no. 1 of table 2 to 33 CFR 165.506(h)(2) from 6 p.m. until 7:30 p.m. on February 10, 2024, or, if necessary due to inclement weather, from 6 p.m. until 7:30 p.m. on February 17, 2024.
If you have questions about this notification of enforcement, call or email MST2 Hollie Givens, Sector Maryland-NCR, Waterways Management Division, U.S. Coast Guard: telephone 410-57-2596, email
The Coast Guard will enforce the safety zone regulation for a fireworks display at “The Wharf DC” from 6 p.m. to 7:30 p.m. on February 10, 2024, or if necessary due to inclement weather, from 6 p.m. until 7:30 p.m. on February 17, 2024. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for Fireworks Displays within the Fifth Coast Guard District, § 165.506, specifies the location of the safety zone for the fireworks show, which encompasses portions of the Washington Channel in the Upper Potomac River. As reflected in § 165.23, vessels in the vicinity of the safety zone, may not enter, remain in, or transit through the safety zone during the enforcement period unless authorized to do so by the COTP or his representative, and they must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.
In addition to this notification of enforcement in the
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce a temporary safety zone for the Riverwalk Marketplace/Lundi Gras fireworks display on February 12, 2024, to provide for the safety of life on navigable waterways during this event. Our regulation for annual fireworks displays and other events in the Eighth Coast Guard District requiring safety zones identifies the regulated area for this event on the navigable waters of the Lower Mississippi River between Mile Marker (MM) 93 and MM 96, New Orleans, LA. During the enforcement period, entry into this zone is prohibited unless authorized by the Captain of the Port or a designated representative. All persons and vessels shall comply with the instructions of the Captain of the Port or designated representative. Designated representatives include commissioned, warrant, and petty officers of the U.S. Coast Guard.
The regulation in 33 Code of Federal Regulations, 33 CFR 165.801, table 5, line 1, will be enforced from 6 p.m. through 7 p.m. on February 12, 2024.
If you have questions about this notification of enforcement, call or email Lieutenant Commander William Stewart, Sector New Orleans, U.S. Coast Guard; telephone 504-365-2246, email
The Coast Guard will enforce a temporary safety zone in 33 CFR 165.801, table 5, line 1, for the Riverwalk Marketplace/Lundi Gras fireworks display event from 6 p.m. through 7 p.m. on February 12, 2024. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for annual fireworks displays and other events in the Eighth Coast Guard District requiring safety zones, § 165.801, identifies the regulated area for the Riverwalk Marketplace/Lundi Gras fireworks display on the navigable waters of the Lower Mississippi River between Mile Marker (MM) 93 and MM 96, New Orleans, LA. During the enforcement period, as reflected in § 165.801(a) through (c), entry into this zone is prohibited unless authorized by the Captain of the Port or a designated representative. All persons and vessels shall comply with the instructions of the Captain of the Port or designated representative. Designated representatives include commissioned, warrant, and petty officers of the U.S. Coast Guard.
In addition to this notification of enforcement in the
Coast Guard, Department of Homeland Security (DHS).
Notification of enforcement of regulation.
The Coast Guard will enforce a safety zone for a fireworks display at “The Wharf DC,” in Washington, DC, on March 23, 2024 or, if necessary, due to inclement weather, on March 24, 2024, to provide for the safety of life on navigable waterways during this event. Our regulation, “Safety Zones; Fireworks Displays within the Fifth Coast Guard District,” identifies the precise location. During the enforcement period, vessels may not enter, remain in, or transit through the safety zone unless authorized to do so by the COTP or his representative, and vessels in the vicinity must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.
The regulation in 33 CFR 165.506 will be enforced for the location identified in line no. 1 of table 2 to 33 CFR 165.506(h)(2) from 8 p.m. until 9:30 p.m. on March 23, 2024, or if necessary due to inclement weather, from 8 p.m. until 9:30 p.m. on March 24, 2024.
If you have questions about this notification of enforcement, call or email MST2 Hollie Givens, Sector Maryland-NCR, Waterways Management Division, U.S. Coast Guard: telephone 410-576-2596, email
The Coast Guard will enforce the safety zone regulation for a fireworks display at The Wharf DC from 8 p.m. to 9:30 p.m. on March 23, 2024 or, if necessary due to inclement weather, from 8 p.m. until 9:30 p.m. on March 24, 2024. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation, “Safety Zones; Fireworks Displays within the Fifth Coast Guard District,” § 165.506, specifies the location of the safety zone for the fireworks show, which encompasses portions of the Washington Channel in the Upper Potomac River. As reflected in 33 CFR 165.23, vessels in the vicinity of the safety zone may not enter, remain in, or transit through the safety zone during the enforcement period unless authorized to do so by the COTP or his representative, and they must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.
In addition to this notification of enforcement in the
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is establishing a temporary moving safety zone around the M/V ZHEN HUA 36 while it transits to the Port Long Beach, CA, to Long Beach Container Terminal (LBCT), Pier 22, then through the Port of Los Angeles to Everport, Pier LA 227. This safety zone is necessary to protect personnel, vessels, and the marine environment from potential hazards associated with oversized cargo transfer operations of three quay cranes, which will extend more than 200 feet out from the transiting vessels. Entry of persons or vessels into this safety zone is prohibited unless specifically authorized by the Captain of the Port (COTP) Los Angeles-Long Beach, or their designated representative.
This rule is effective without actual notice from January 25, 2024 through February 2, 2024. For the purposes of enforcement, actual notice will be used from January 23, 2024, until January 25, 2024.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or LCDR Kevin Kinsella, Waterways Management, U.S. Coast Guard Sector Los Angeles-Long Beach; telephone (310) 357-1603, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the COTP was notified of the impending arrival of the M/V ZHEN HUA 36 less than 30 days in advance and immediate action is needed to respond to the potential safety hazards associated with the transfer of large quay cranes within the Ports of Los Angeles and Long Beach. It is impracticable to publish an NPRM because we must establish this safety zone by January 23, 2024.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The COTP Los Angeles-Long Beach has determined that potential hazards associated with the movement of large-scale quay crane transfer operations will be a safety concern for anyone within a 500-foot radius of the M/V ZHEN HUA 36 during its transit to LBCT, Pier 22, and Everport, Pier LA 227, while the vessel is within the Port of Los Angeles or Port of Long Beach and the waters inside the Federal breakwaters bounding San Pedro Bay or on the waters within three nautical miles seaward of the Federal breakwaters, respectively. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the vessel offloads gantry cranes in the Port of Los Angeles and Port of Long Beach.
This rule establishes a safety zone from January 23, 2024, through February 2, 2024, during the transit of the M/V ZEN HUA 36. While the M/V ZHEN HUA 36 is within the Port of Los Angeles or Port of Long Beach and the waters inside the Federal breakwaters bounding San Pedro Bay or on the waters within three nautical miles seaward of the Federal breakwaters, respectively, the safety zone will encompass the navigable waters around and under the vessel, from surface to bottom, within a circle formed by connecting all points 500 feet out from the vessel. The safety zone is needed to protect personnel, mariners, and vessels from hazards associated with ship-to shore gantry crane arms which will extend more than 200 feet out from the transiting vessel. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the transfer operations are active.
No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. Sector Los Angeles-Long Beach may be contacted on VHF-FM Channel 16 or (310) 521-3801. The marine public will be notified of the safety zone via Broadcast Notice to Mariners.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. This rule impacts an area of 500 feet surrounding a cargo vessel while at LBCT, Pier 22, for 6 days, and Everport, Pier LA 227, for 3 days during the months of January and February 2024. This safety zone impacts a 500-foot radius area of the Port of Los Angeles and Port of Long Beach and the waters inside the Federal breakwaters bounding San Pedro Bay or on the waters within three nautical miles seaward of the Federal breakwaters, respectively for a limited duration. While the safety zone encompasses a 9-day period to account for uncertain transit delays of the M/V ZHEN HUA 36, the safety zone will only be enforced for the duration of the vessel's inbound transit, and transit from LBCT, Pier 22, to Everport, Pier LA 227. Each transit is expected to last less than 24 hours, and that period will be announced via Broadcast Notice to Mariners. Vessel traffic will be able to safely transit around this safety zone, which will impact a small, designated area of the San Pedro Bay, Long Beach and Los Angeles, CA.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal Government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone encompassing an area extending 500 feet out from a cargo vessel in vicinity of Long Beach Container Terminal and Everport and will last only during transit. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(c)
(1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP's designated representative.
(2) To seek permission to enter, contact the COTP or the COTP's representative by hailing Coast Guard Sector Los Angeles-Long Beach on VHF-FM Channel 16 or calling at (310) 521-3801. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
(e)
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is proposing to establish a temporary safety zone for the Ohio River several days in January and February 2024 at mile marker 2.5 to mile marker 3 from 8 a.m. through 6 p.m. each day. This action is necessary
This rule is effective without actual notice from January 25, 2024 through February 4, 2024. For the purposes of enforcement, actual notice will be used from January 22, 2024, until January 25, 2024. The regulations in this rule will be enforced daily from 8 a.m. through 6 p.m. on the following dates: January 22, 2024, through January 26, 2024, and January 29, 2024, through February 4, 2024.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LTJG Eyobe Mills, Marine Safety Unit Pittsburgh, U.S. Coast Guard; telephone 412-221-0807, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(B)). This statutory provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest. This safety zone must be established by January 22, 2024, to provide for the safety of life on the navigable waters during a helicopter operation, and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zone until after the date of the helicopter operation. Vessels inside of the safety zone have the potential of getting hit by derby from the helicopter.
Additionally, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Pittsburgh (COTP) has determined that potential hazards associated with a helicopter operation on January 22, 2024, through January 26, 2024, and January 29, 2024, through February 4, 2024, will be a safety concern for anyone on the Ohio River from 8 a.m. to 6 p.m. at mile markers 2.5 to mile marker 3. The purpose of this rule is to ensure safety of the participant, vessels, and the navigable waters in the safety zone before, during, and after the scheduled event.
This rule establishes a temporary safety zone that will be enforced each day from 8 a.m. until 6 p.m. on January 22 through January 26 and January 29 through February 4, 2024. The safety zone will cover all navigable waters on the back channel of the Brunot Island on the Ohio River from mile markers 2.5 to mile marker 3. The duration of the zone is intended to protect personnel, vessels, and the marine environment in the navigable waters during an installation of aerial transverse wirelines using a helicopter.
No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative of the COTP. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of the COTP. To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 16, or through Marine Safety Unit Pittsburgh at 412-221-0807. Persons and vessels permitted to enter the safety zone must comply with all lawful orders or directions issued by the COTP or designated representative. The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on size, location, and duration of the temporary safety zone. This safety zone only impacts a 0.5-mile stretch on the Ohio River for 10 hours each day from January 22 through January 26 and January 29 through February 4, 2024. Moreover, the Coast Guard will issue Local Notice to Mariners and Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission from the COTP to transit the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal Government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone lasting 10 hours each day from January 22 through January 26 and January 29 through February 4, 2024, on the Ohio River. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Marine Safety, Navigation (water), Reporting, recordkeeping requirements, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's representative on Channel 16 or at 412-670-7288. To seek permission, concerned traffic may reach contact the event organizers on channel 13 or at (860) 573-6646. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for certain navigable waters of the
This rule is effective without actual notice from January 25, 2024, through 11:59 p.m. on February 28, 2024. For the purposes of enforcement, actual notice will be used from 1 p.m. on January 21, 2024, until January 25, 2024.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rule, call or email LT Lawrence Schad, Waterways Management Division, U.S. Coast Guard; telephone 251-382-8653, email
The Coast Guard is issuing this temporary rule under authority in 5 U.S.C. 553(b)(B). This statutory provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to public interest to delay the effective date of this rule. Immediate action is needed to protect people and property on the waterway from potential hazards associated with unexploded ordnance operations on the waterway and enhance public and maritime safety. The Coast Guard was unable to publish an NPRM due to the short time period between the discovery of the unexploded ordnances and the need for the Coast Guard to enforce a safety zone around unexploded ordnance clearance operations. The unexploded ordnances were discovered by the U.S. Army Corps of Engineers (USACE) on January 19, 2024. Specifically, two separate ordnances were discovered. The operations include detonating one of the ordnances where it is located and moving the other ordnance to an undetermined location in the Gulf of Mexico where the Coast Guard intends to establish a new permanent zone as needed. Furthermore, delaying the effective date would be contrary to the safety zone's intended objectives of enhancing maritime safety and security while ensuring protection of people and property on the navigable waterway.
Also, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The COTP has determined that a safety zone is necessary for the protection of persons and vessels from potential hazards associated with unexploded ordnance operations.
This rule establishes a safety zone on certain navigable waters of the Choctawhatchee Bay within a 900 yard radius of approximate position 30°25′52.57314″ N, 86°35′08.49867″ W, and a moving safety zone within a 900 yard radius from any vessel involved with relocating the unexploded ordnance upon leaving the area where the ordnance was discovered until it is safely positioned in the disposal location. Enforcement of this safety zone is from 1 p.m. on January 21, 2024, until 11:59 p.m. on February 28, 2024. The duration of the zone is intended to protect personnel, vessels, and ensure maritime safety and security in these navigable waters during unexploded ordnance clearing operations. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB). This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. This safety zone would be enforced for approximately six weeks and prohibit vessel movement on a portion of the Choctawhatchee Bay and a moving safety zone around relocating unexploded ordnances from the Choctawhatchee Bay to the Gulf of Mexico. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting six weeks that will prohibit entry on a portion of the Choctawhatchee Bay and a moving safety zone around a vessel involved in relocating any unexploded ordnance from the Choctawhatchee Bay to the Gulf of Mexico. It is categorically excluded from further review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's designated representative on VHF-CH 16. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
Department of Education.
Final regulations.
The Department of Education (Department) issues these final
These regulations are effective January 25, 2024. The adjusted CMPs established by these regulations are applicable only to civil penalties assessed after January 25, 2024, whose associated violations occurred after November 2, 2015.
Rhondalyn Primes, U.S. Department of Education, Office of the General Counsel, 400 Maryland Avenue SW, room 6C150, Washington, DC 20202-2241. Telephone: (202) 453-6444. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
A CMP is defined in the Inflation Adjustment Act (28 U.S.C. 2461 note) as any penalty, fine, or other sanction that is (1) for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.
The Inflation Adjustment Act provides for the regular evaluation of CMPs to ensure that they continue to maintain their deterrent value. The Inflation Adjustment Act required that each agency issue regulations to adjust its CMPs beginning in 1996 and at least every four years thereafter. The Department published its most recent cost adjustment to its CMPs in the
The 2015 Act (section 701 of Pub. L. 114-74) amended the Inflation Adjustment Act to improve the effectiveness of CMPs and to maintain their deterrent effect.
The 2015 Act requires agencies to: (1) adjust the level of CMPs with an initial “catch-up” adjustment through an interim final rule (IFR); and (2) make subsequent annual adjustments for inflation. Catch-up adjustments are based on the percentage change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year the penalty was last adjusted by a statute other than the Inflation Adjustment Act, and the October 2015 CPI-U. Annual inflation adjustments are based on the percentage change between the October CPI-U preceding the date of each statutory adjustment, and the prior year's October CPI-U.
In these final regulations, based on the CPI-U for the month of October 2023, not seasonally adjusted, we are annually adjusting each CMP amount by a multiplier for 2024 of 1.03241, as directed by the Office of Management and Budget (OMB) Memorandum No. M-24-07 issued on December 19, 2023.
The Department's Civil Monetary Penalties
The following analysis calculates new CMPs for penalty statutes in the order in which they appear in 34 CFR 36.2. The penalty amounts are being adjusted up based on the multiplier of 1.03241 provided in OMB Memorandum No. M-24-07.
Under Executive Order 12866, the Office of Management and Budget (OMB) must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866, as amended by Executive Order 14094, defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $200 million or more (adjusted every 3 years by the Administrator of OIRA for changes in gross domestic product); or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or Tribal governments or communities;
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise legal or policy issues for which centralized review would meaningfully further the President's priorities, or the principles set forth in this Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case.
We have determined that these final regulations: (1) exclusively implement the annual adjustment; (2) are consistent with OMB Memorandum No. M-24-07; and (3) have an annual impact of less than $200 million. Therefore, based on OMB Memorandum No. M-24-07, this is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866 (as amended by Executive Order 14094).
We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866 (as amended by Executive Order 14094). To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account, among other things, and to the extent practicable, the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or providing information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final regulations as required by statute and in accordance with OMB Memorandum No. M-24-07. The Secretary has no discretion to consider alternative approaches as delineated in the Executive order. Based on this analysis and the reasons stated in the preamble, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.
Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, section 4(b)(2) of the 2015 Act (28 U.S.C. 2461 note) provides that the Secretary can adjust these 2024 penalty amounts notwithstanding the requirements of 5 U.S.C. 553. Therefore, the requirements of 5 U.S.C. 553 for notice and comment and delaying the effective date of a final rule do not apply here.
Pursuant to 5 U.S.C. 601(2), the Regulatory Flexibility Act applies only to rules for which an agency publishes a general notice of proposed rulemaking. The Regulatory Flexibility Act does not apply to this rulemaking because section 4(b)(2) of the 2015 Act (28 U.S.C. 2461 note) provides that the Secretary can adjust these 2024 penalty amounts without publishing a general notice of proposed rulemaking.
These regulations do not contain any information collection requirements.
This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.
Based on our own review, we have determined that these regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.
You may also access documents of the Department published in the
Claims, Fraud, Penalties.
Administrative practice and procedure, Aliens, Colleges and universities, Consumer protection, Grant programs—education, Loan programs—education, Reporting and recordkeeping requirements, Selective Service System, Student aid, Vocational education.
For the reasons discussed in the preamble, the Secretary amends parts 36 and 668 of title 34 of the Code of Federal Regulations as follows:
20 U.S.C. 1221e-3 and 3474; 28 U.S.C. 2461 note, as amended by § 701 of Pub. Law 114-74, unless otherwise noted.
20 U.S.C. 1001-1003, 1070g, 1085, 1088, 1091, 1092, 1094, 1099c, 1099c-1, and 1231a, unless otherwise noted.
Federal Communications Commission.
Final rule; announcement of effective and compliance dates.
In this document, the Federal Communications Commission (Commission) announces that the Office of Management and Budget (OMB) has approved, for a period of three years, an information collection associated with the Commission's
The amendments to 47 CFR 64.6303(c) (amendatory instruction 9) and 47 CFR 64.6305(d), (e), (f), and (g) (amendatory instruction 12), published at 88 FR 49006, June 21, 2023, and the amendments to 47 CFR 64.6305(d)(2)(ii) and (iii), (e)(2)(ii), and (f)(2)(iii) (amendatory instruction 5), published at 88 FR 43446, July 10, 2023, are effective February 26, 2024. The compliance date for 47 CFR 64.6305(g) is May 24, 2024.
Erik Beith, Competition Policy Division, Wireline Competition Bureau, at (202) 418-0756, or email:
This document announces that, on November 7, 2023, OMB approved, for a period of three years, the information collection requirements relating to §§ 64.6303(c), 64.6305(d), (e), and (f) of the Commission's rules, as contained in the Commission's
The effective date of the rules amending 47 CFR 64.6303(c) and 47 CFR 64.6305(d), (e), and (f) was delayed indefinitely in 88 FR 40096. The effective date of the rule amending 47 CFR 64.6305(g) was also delayed indefinitely because it contained a compliance date that could not be set until
The Commission publishes this document as an announcement of the effective dates of the amendments to 47 CFR 64.6303(c), 64.6305(d), (e), (f), and (g).
If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, 45 L Street NE, Washington, DC 20554. Please include the OMB Control Number, 3060-1285, in your correspondence. The Commission will also accept your comments via email at
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on November 7, 2023 for the information collection requirements contained in the modifications to the Commission's rules in 47 CFR part 64 (47 CFR 64.6303(c), 64.6305(d), (e), and (f)). These actions allow the Wireline Competition Bureau to announce the effective date of these rules, as well as for 47 CFR 64.6305(g).
Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1285.
The foregoing notification is required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13) October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
Carrier equipment, Communications common carriers, Reporting and recordkeeping requirements, Telecommunications, Telephone.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; possession limit adjustment.
NMFS is reducing the Atlantic herring possession limit for herring vessels fishing with midwater trawl in the River Herring and Shad Cape Cod Catch Cap Closure Area. This is required because NMFS projects that catch of river herring and shad by midwater trawl herring vessels will reach the Cape Cod Catch Cap threshold for river herring and shad before the end of the fishing year. This action is intended to prevent overharvest of river herring and shad.
Effective 00:01 hours local time, January 23, 2024, through December 31, 2024.
Louis Forristall, Fishery Management Specialist, (978)-281-9321.
The Regional Administrator of the Greater Atlantic Regional Fisheries Office monitors river herring and shad catch by Atlantic herring vessels. River herring and shad catch caps are allocated to the herring fishery by area and gear type.
The Cape Cod Catch Cap Area river herring and shad cap is allocated to Atlantic herring vessels using midwater trawl gear in the Cape Cod Catch Cap Area. Catch from all Atlantic herring trips using midwater trawl gear in that area that land more than 6,600 pounds (lb), equivalent to 2,994 kilograms (kg), of herring is counted towards the river herring and shad catch cap. Regulations at 50 CFR 648.201(a)(4)(ii) require NMFS to implement a 2,000-lb (907.2-kg) Atlantic herring possession limit for vessels fishing with the specified gear in a specified catch cap closure area beginning on the date that catch is projected to reach 95 percent of the river herring and shad catch cap for that area.
Based on vessel reports, dealer reports, and other available information, the Regional Administrator projects that midwater trawl herring vessels will have caught 95 percent of the river herring and shad 2024 Cape Cod Catch Cap by January 23, 2024. Therefore, effective 00:01 hours local time January 23, 2024, through 24:00 hours local time on December 31, 2024, Atlantic herring vessels using midwater trawl gear may not attempt or do any of the following: Fish for, possess, transfer, receive, land, or sell more than 2,000 lb (907.2 kg) of Atlantic herring from the Cape Cod Catch Cap Closure Area per trip; or land Atlantic herring from the Cape Cod Catch Cap Closure Area more than once per calendar day. Also effective 00:01 hours local time, January 23, 2024, through 24:00 hours local time, December 31, 2024, unless it is from a vessel that enters port before 00:01 hours local time on January 23, 2024, and catch is landed in accordance with state management measures, federally permitted dealers may not attempt or do any of the following: purchase; receive; possess; have custody or control of; sell; barter; trade; or transfer more than 2,000 lb (907.2 kg) of Atlantic herring per trip or calendar day from an Atlantic herring midwater trawl vessel fishing in the Cape Cod Catch Cap Closure Area.
Midwater trawl vessels may transit through or land in the Cape Cod Catch Cap Closure Area with more than 2,000 lb (907.2 kg) of Atlantic herring on board, provided that: The herring were caught in an area not subject to a 2,000-lb (907.2-kg) limit; all fishing gear is stowed and not available for immediate use as defined at § 648.2 while the vessel is in the Closure Area; and the vessel is issued a permit appropriate to the amount of herring on board and the area where the herring was harvested.
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
NMFS finds good cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive prior notice and the opportunity for public comment because it would be impracticable, unnecessary, and contrary to the public interest. Data only recently became available indicating that midwater trawl herring vessels will catch 95 percent of the river herring and shad Cape Cod Catch Cap before the end of the fishing year. High-volume catch and landings in the herring fishery can increase river herring and shad catch relative to catch caps quickly. If implementation of this action is delayed to solicit prior public comment, the 2024 Cape Cod Catch Cap will likely be exceeded; thereby undermining the conservation objectives of the Atlantic Herring Fishery Management Plan (FMP). Additionally, the regulations at § 648.201(a)(4)(ii) are designed to be implemented as quickly as possible to prevent catch from exceeding river herring and shad catch caps. NMFS is acting in accordance with those regulations to carry out the fishery management plan under the authority provided in section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act. These regulations were subject to public notice and opportunity to comment when they were first adopted in 2014. Further, Atlantic herring fishing industry participants monitor catch closely and anticipate potential possession limit adjustments as catch totals approach river herring and shad catch caps, and they expect these actions to occur in a timely way consistent with the FMP's objectives. For the reasons stated above, NMFS also finds good cause to waive the 30-day delayed effectiveness in accordance with 5 U.S.C 553(d)(3).
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would implement a recommendation from the Far West Spearmint Oil Administrative Committee (Committee) to establish salable quantities and allotment percentages for Class 1 (Scotch) and Class 3 (Native) spearmint oil produced in Washington, Idaho, and Oregon and parts of Nevada and Utah (Far West) for the 2024-2025 marketing year. This proposed rule would also remove references to past volume regulation no longer in effect.
Comments must be received by February 26, 2024.
Interested persons are invited to submit written comments concerning this proposed rule. Comments can be sent to the Docket Clerk, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237. Comments can also be submitted to the Docket Clerk electronically by Email:
Josh Wilde, Marketing Specialist, or Barry Broadbent, Acting Chief, West Region Branch, Market Development Division, Specialty Crops Program, AMS, USDA; Telephone: (503) 326-2282, 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, proposes to amend regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Order No. 985, as amended (7 CFR part 985), regulating the handling of spearmint oil produced in the Far West. Part 985 (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 Committee locally administers the Order and comprises spearmint oil producers operating within the area of production, and a public member.
The Agricultural Marketing Service (AMS) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 14094. 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 proposed action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.
This proposed rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires Federal agencies to consider whether their rulemaking actions would have Tribal implications. AMS has determined that this proposed 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 proposed rule has been reviewed under Executive Order 12988—Civil Justice Reform. This proposed rule is not intended to have retroactive effect. Under the Order now in effect, salable quantities and allotment percentages may be established for classes of spearmint oil produced in the Far West. This proposed rule would establish salable quantities and allotment percentages for Scotch and Native spearmint oil for the 2024-2025 marketing year, which begins on June 1, 2024.
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 the U.S. Department of Agriculture (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. Such 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 not later than 20 days after the date of the entry of the ruling.
Pursuant to the requirements in § 985.50 of the Order, the Committee meets each year to consider supply and demand of spearmint oil and to adopt a marketing policy for the ensuing marketing year. In determining such marketing policy, the Committee
Pursuant to the provisions in § 985.51, when the Committee's marketing policy considerations indicate a need to establish or to maintain stable market conditions through volume regulation, the Committee subsequently recommends to AMS the establishment of a salable quantity and allotment percentage for such class or classes of oil for the upcoming marketing year. Recommendations for volume control are intended to ensure market requirements for Far West spearmint oil are satisfied and orderly marketing conditions are maintained.
Salable quantity represents the total quantity of each class of oil (Scotch or Native) which handlers may purchase from, or handle on behalf of, producers during a given marketing year. The allotment percentage for each class of spearmint oil is the salable quantity for that class of oil divided by the total of all producers' allotment base for the same class of oil. A producer's allotment base is their calculated share of the spearmint oil market based on a statistical representation of past spearmint production and sales. In order to account for changes in production and demand over time, the Committee periodically reviews and adjusts each producer's allotment base in accordance with a formula prescribed by the Committee and approved by AMS. Each producer's annual allotment of the salable quantity is calculated by multiplying their respective allotment base for each class of spearmint oil by the allotment percentage for that class of spearmint oil. The total allotment base is revised each year on June 1 to account for producer allotment base being lost as a result of the “bona fide effort” production provision of § 985.53(e) and additional base made available pursuant to the provisions of § 985.153.
Salable quantities and allotment percentages are established at levels intended to maintain orderly marketing conditions while also ensuring that markets are adequately supplied. Further, Committee recommendations for volume control are made in advance of the upcoming marketing year in which the regulations are to be effective, thereby allowing producers ample time to adjust their production decisions accordingly.
The Committee met on October 11, 2023, to consider its marketing policy for the 2024-2025 marketing year. At that meeting, the Committee determined that, based on the current market and supply conditions, volume regulation for both classes of oil would be necessary. The Committee unanimously recommended, with a vote of seven in favor and none opposed, a salable quantity and allotment percentage for Scotch spearmint oil of 663,648 pounds and 29 percent, respectively. In addition, the Committee unanimously recommended a salable quantity and allotment percentage for Native spearmint oil of 678,980 pounds and 26 percent, respectively.
This proposed action would establish the amount of Scotch and Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2024-2025 marketing year, which begins on June 1, 2024. Salable quantities and allotment percentages have been in effect each season since the Order's inception in 1980.
The Committee recommended a Scotch spearmint oil salable quantity of 663,648 pounds and an allotment percentage of 29 percent for the 2024-2025 marketing year. The proposed salable quantity of 663,648 pounds is 109,056 pounds less than the salable quantity of 772,704 pounds established for the 2023-2024 marketing year. The recommended 29 percent allotment percentage for the 2024-2025 marketing year is 5 percent less than the 34 percent in effect the previous marketing year.
The total allotment base for the coming marketing year is estimated to be 2,288,442 pounds. This figure represents a one-percent increase over the revised 2023-2024 marketing year total allotment base of 2,265,784 pounds. The proposed salable quantity (663,648 pounds) is the product of total allotment base (2,288,442 pounds) times the proposed allotment percentage (approximately 28.999 percent, rounded to 29 percent).
The Committee considered several factors in making its recommendation, including the current and projected future supply, estimated future demand, production costs, and producer prices. The Committee's recommendation also accounts for the established acreage of Scotch spearmint, consumer demand, existing carry-in, reserve pool volume, and production in competing markets.
According to the Committee, as costs of production have increased and spearmint oil prices have decreased, many producers have forgone new plantings of Scotch spearmint. This has resulted in a significant decline in production of Scotch spearmint oil in recent years. Production has decreased from 1,113,346 pounds produced in 2016 to an estimated 483,617 pounds of Scotch spearmint production in 2023.
Industry reports indicate that trade demand for Far West Scotch spearmint oil, which had been declining in recent years, has begun to stabilize. Sales of Far West Scotch spearmint oil declined from a high of 1,060,232 pounds during the 2014-2015 marketing year to a low of 488,484 pounds in the 2020-2021 marketing year. Sales of Far West Scotch spearmint oil totaled 597,852 pounds during the 2022-2023 marketing year, the last full year of available data. The Committee indicates that production of Scotch spearmint oil in competing markets, most notably by Canadian producers, continues to exert downward pressure on trade demand for Scotch spearmint oil from the Far West.
Given the anticipated market conditions for the coming year, the Committee estimates that Scotch spearmint oil trade demand for the 2024-2025 marketing year will be 600,000 pounds, which is 35,000 pounds lower than the prior year estimate and just below the 5-year moving sales average of 614,157 pounds. Should the proposed volume regulation levels prove insufficient to adequately supply the market, the Committee has the authority to recommend intra-seasonal increases of the salable quantity and allotment percentage, as it has in previous marketing years.
The Committee calculated the minimum salable quantity of Scotch spearmint oil that would be required during the 2024-2025 marketing year (266,880 pounds) by subtracting the estimated salable carry-in on June 1, 2024, (333,120 pounds) from the estimated trade demand (600,000 pounds). This minimum salable quantity represents the estimated minimum amount of Scotch spearmint oil that would be needed to satisfy estimated trade demand for the coming year. To ensure that the market would be fully supplied, the Committee recommended a 2024-2025 marketing year salable quantity of 663,648 pounds. The recommended salable quantity, combined with an estimated 333,120 pounds of salable carry-in from the previous year, would yield a total available supply of 996,768 pounds of Scotch spearmint oil for the 2024-2025 marketing year. With the recommended salable quantity and current market environment, the Committee estimates that as much as 396,768 pounds of salable Scotch spearmint oil could be
Salable carry-in is the primary measure of excess spearmint oil supply under the Order, as it represents overproduction in prior years that is currently available to the market without restriction. Under volume regulation, spearmint oil that is designated as salable continues to be available to the market until it is sold and may be marketed at any time at the discretion of the owner.
The Committee estimates that there will be 333,120 pounds of salable carry-in of Scotch spearmint oil on June 1, 2024. If current market conditions are maintained and the Committee's projections are correct, salable carry-in would increase to 396,768 pounds at the beginning of the 2025-2026 marketing year. This level would be above the quantity that the Committee generally considers favorable (150,000 pounds). However, the Committee believes that, given the current economic conditions in the Scotch spearmint oil industry, some Scotch spearmint oil producers may not produce their annual allotment for the 2024-2025 marketing year. Further, the Committee estimates that as much as 296,118 pounds of the 2023-2024 marketing year annual allotment may not be filled by producers. While the Committee has not projected unused base allotment for the upcoming 2024-2025 marketing year, it anticipates that the actual quantity of Scotch spearmint oil carried into the 2024-2025 marketing year will be much less than the quantity calculated above (333,120 pounds).
Spearmint oil held in reserve is oil that has been produced in excess of a producer's annual allotment, either in the current marketing year or in prior years, and is restricted from freely entering the market. After December 1 of each marketing year, reserve pool oil is not available to the market in the current marketing year without an increase in the salable quantity and allotment percentage. The Order does include provision for reserve oil to be released for limited market development projects, with approval of the Secretary, but this provision is rarely utilized.
Oil held in the reserve pool is another indicator of excess supply. Scotch spearmint oil held in reserve was 26,062 pounds as of May 31, 2023, up from 23,667 pounds as of May 31, 2022. This quantity of reserve pool oil should be an adequate buffer to supply the market, if necessary, should the industry experience an unexpected increase in demand.
The Committee recommended an allotment percentage of 29 percent for the 2024-2025 marketing year for Scotch spearmint oil. During its October 11, 2023, meeting, the Committee calculated an initial allotment percentage by dividing the minimum required salable quantity (266,880 pounds) by the total estimated allotment base (2,288,442 pounds), resulting in 11.7 percent. However, producers and handlers at the meeting indicated that the computed percentage (11.7 percent) might not adequately satisfy potential 2024-2025 marketing year Scotch spearmint oil market demand and may also result in a less than desirable carry-in for the subsequent marketing year. After deliberation, the Committee recommended an allotment percentage of 29 percent. The total estimated allotment base (2,288,442 pounds) for the 2024-2025 marketing year, multiplied by the recommended allotment percentage (29 percent), yields 663,648 pounds, which is the recommended salable quantity for the 2024-2025 marketing year.
The 2024-2025 marketing year computational data for the Committee's recommendations is detailed below.
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For the reasons stated above, the Committee believes that the recommended salable quantity and allotment percentage would adequately satisfy trade demand, would result in a reasonable carry-in for the following year, and would contribute to the orderly marketing of Scotch spearmint oil.
The Committee recommended a Native spearmint oil salable quantity of 678,980 pounds and an allotment percentage of 26 percent for the 2024-2025 marketing year. These figures are, respectively, 355,512 pounds and 14 percentage points lower than the levels established for the 2023-2024 marketing year. The Committee utilized handlers' estimated trade demand of Native spearmint oil for the coming year, historical and current Native spearmint oil production, inventory statistics, and international market data obtained from consultants for the spearmint oil industry to arrive at these recommendations.
The Committee anticipates that 2023 Native spearmint oil production will total 1,015,570 pounds, up from the previous year's production of 941,026 pounds. Committee records indicate
Sales of Native spearmint oil have been trending downward since the 2017-2018 marketing year, falling from a recent high of 1,332,260 pounds during the 2020-2021 marketing year to 988,536 pounds for the 2021-2022 marketing year, representing a 10-year low. However, sales of Native spearmint oil improved slightly to 1,044,835 pounds for the 2022-2023 marketing year, the last full year for which data is available. The Committee expects demand to remain fairly stable, estimating trade demand for Native spearmint oil at 1,000,000 pounds for the 2024-2025 marketing year.
The Committee anticipates that 447,520 pounds of salable Native spearmint oil from prior years will be carried into the 2024-2025 marketing year. This amount is up from the 308,440 pounds of salable oil carried into the 2023-2024 marketing year and well above the level that the Committee generally considers favorable (150,000 pounds).
The Committee estimates that there will be 1,048,733 pounds of Native spearmint oil in the reserve pool at the beginning of the 2024-2025 marketing year. Native reserve pool oil has been fairly stable over the past several marketing years. The reserve pool increased from 996,050 pounds at the start of the 2016-2017 marketing year to 1,219,122 pounds to start the 2021-2022 marketing year. However, the pool was reduced to 1,055,135 pounds by the start of the 2022-2023 marketing year, in line with the 1,048,733 pounds of Native spearmint oil that the Committee projects will be held in the reserve pool to begin the 2024-2025 marketing year.
The Committee expects end users of Native spearmint oil to continue to rely on Far West production as their primary source of high-quality Native spearmint oil. However, increases in domestic production of Native spearmint from regions outside of the Far West production area has created additional competition for market share. For example, there were fewer than 2,000 acres of Native spearmint production in the U.S. Midwest region in 2016, compared with over 10,000 acres of Native spearmint oil production in the Far West. However, the Committee's 2023 estimates indicate that Far West acreage has declined to approximately 6,761 acres, compared to Native spearmint producing acreage of around 3,000 acres in the Midwest. This situation has contributed to declining trade demand for Far West Native spearmint oil and led to downward pressure on producer prices.
Given the anticipated market conditions for the coming year, the Committee estimated the 2024-2025 marketing year Native spearmint oil trade demand to be 1,000,000 pounds. This figure is based on input provided by producers at six production area meetings held in September and October 2023, as well as estimates provided by handlers and other meeting participants at the October 11, 2023, Committee meeting. This figure represents a decrease of 150,000 pounds from the previous year's estimated trade demand for the 2023-2024 marketing year. The average estimated trade demand for Native spearmint oil derived from the production area meetings was 1,020,833 pounds, whereas the handlers' estimates ranged from 950,000 to 1,200,000 pounds. The quantity marketed over the most recent full marketing year, 2022-2023, was 1,044,835 pounds.
The estimated June 1, 2024, carry-in of 447,520 pounds of Native spearmint oil, plus the recommended 2024-2025 marketing year salable quantity of 678,980 pounds, would result in an estimated total available supply of 1,126,500 pounds of Native spearmint oil during the 2024-2025 marketing year. With the corresponding estimated trade demand of 1,000,000 pounds, the Committee projects that 126,500 pounds of salable oil will be carried into the 2025-2026 marketing year. The Committee estimates that there will be 1,048,733 pounds of Native spearmint oil held in the reserve pool at the beginning of the 2024-2025 marketing year. Should the industry experience an unexpected increase in trade demand, oil in the Native spearmint oil reserve pool could be released through an intra-seasonal increase in the salable quantity and allotment percentage to satisfy that demand.
The Committee recommended a Native spearmint oil allotment percentage of 26 percent for the 2024-2025 marketing year. During its October 11, 2023, meeting, the Committee calculated an initial allotment percentage of 21.2 percent by dividing the minimum required salable quantity to satisfy estimated trade demand (552,480 pounds) by the total allotment base (2,611,463 pounds). However, producers and handlers at the meeting expressed concern that the computed percentage of 21.2 percent may not adequately supply the potential 2024-2025 marketing year Native spearmint oil market demand. Further, it could result in a less than adequate carry-in for the subsequent marketing year. After deliberation, the Committee increased its allotment percentage recommendation to 26 percent. The total estimated Native spearmint oil allotment base (2,611,463 pounds) multiplied by the recommended salable allotment percentage (26 percent) yields 678,980 pounds, the recommended Native spearmint oil salable quantity for the 2024-2025 marketing year.
The 2024-2025 marketing year computational data for the Committee's recommendation is further outlined below.
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The Committee's recommended Scotch and Native spearmint oil salable quantities and allotment percentages of 663,648 pounds and 29 percent, and 678,980 pounds and 26 percent, respectively, would match the available supply of each class of spearmint oil to the estimated demand of each, thus avoiding extreme fluctuations in inventories and prices. This proposed rule is similar to regulations issued in prior seasons.
The salable quantities in this proposed rule are not expected to cause a shortage of either class of spearmint oil. Any unanticipated or additional market demand for either class of spearmint oil which may develop during the marketing year could be satisfied by an intra-seasonal increase in the salable quantity and corresponding allotment percentage. The Order contains a provision in § 985.51 for intra-seasonal increases to allow the Committee the flexibility to respond quickly to changing market conditions.
Under volume regulation, producers who produce more than their annual allotments during the marketing year may transfer such excess spearmint oil to producers who have produced less than their annual allotment. In addition, on December 1 of each year, producers who have not transferred their excess spearmint oil to other producers must place their excess spearmint oil production into the reserve pool to be released in the future. Each producer controls the disposition of their respective reserve pool spearmint oil, in accordance with market needs and the Order's volume regulation provisions, and under the Committee's oversight.
In conjunction with the issuance of this proposed rule, AMS has reviewed the Committee's marketing policy statement for the 2024-2025 marketing year. The Committee's marketing policy statement, a requirement whenever the Committee recommends volume regulation, meets the requirements of §§ 985.50 and 985.51.
The establishment of the proposed salable quantities and allotment percentages would allow for anticipated market needs. In determining anticipated market needs, the Committee considered historical sales, as well as changes and trends in production and demand. This proposal would also provide producers with information regarding the amount of spearmint oil that should be produced for the 2024-2025 and subsequent marketing years to meet anticipated market demand.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the AMS has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial 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 39 producers of Scotch spearmint oil and 92 producers of Native spearmint oil operating within the regulated production area. In addition, there are approximately 7 spearmint oil handlers (both Scotch and Native spearmint) subject to regulation under the Order. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of equal to or less than $34.0 million (Postharvest Crop Activities, NAICS code 11514). Small agricultural producers of spearmint oil are defined as those having annual receipts of equal to or less than $2.5 million (All Other Miscellaneous Crop Farming, NAICS code 111998) (13 CFR 121.201).
The Committee reported that recent producer prices for spearmint oil have ranged from $18.00 to $22.00 per pound. The National Agricultural Statistics Service (NASS) reported that the 2022 U.S. season average spearmint oil producer price per pound was $20.40. Spearmint oil utilization for the 2022-2023 marketing year, as reported by the Committee, was 597,852 pounds and 1,044,835 pounds for Scotch and Native spearmint oil, respectively, for a total of 1,642,687 pounds. Multiplying $20.40 per pound by 2022-2023 marketing year spearmint oil utilization of 1,642,687 pounds yields a crop value estimate of about $33.5 million.
Given the accounting requirements for the volume regulation provisions of the Order, the Committee maintains accurate records of each producer's production and sales. Using the $20.40 average spearmint oil price and Committee production data for each producer, the Committee estimates that 38 of the 39 Scotch spearmint oil producers and all of the 92 Native spearmint oil producers could be classified as small entities under the SBA definition.
There is no third-party or governmental entity that collects and reports spearmint oil prices received by spearmint oil handlers. However, the Committee estimates an average spearmint oil handling markup at approximately 20 percent of the price received by producers. Twenty percent of the 2022 producer price ($20.40) is $4.08, which results in a handler Free on Board (f.o.b.) price per pound estimate of $24.48 ($20.40 + $4.08).
Multiplying this estimated handler f.o.b. price by the 2022-2023 marketing year total spearmint oil utilization of 1,642,687 pounds results in an estimated handler-level spearmint oil value of $40.2 million. Dividing this figure by the number of handlers (7) yields estimated average annual handler receipts of about $5.7 million, which is well below the $34.0 million SBA threshold for small agricultural service firms.
Furthermore, using confidential data compiled by the Committee on the pounds of spearmint oil handled by each handler and the abovementioned estimated handler price per pound, the Committee reported that it is not likely that any of the seven handlers had 2022-2023 marketing year spearmint oil sales that exceeded SBA's threshold.
Therefore, in view of the foregoing, the majority of producers of spearmint oil may be classified as small entities, and all of the handlers of spearmint oil may be classified as small entities.
This proposed rule would establish the quantity of spearmint oil produced in the Far West, by class, which
The Committee estimates the total trade demand for the 2024-2025 marketing year for both classes of oil at 1,600,000 pounds. In addition, the Committee expects that the combined salable carry-in for both classes of spearmint oil will be 780,640 pounds. As such, the combined required salable quantity for the 2024-2025 marketing year is estimated to be 819,360 pounds (1,600,000 pounds trade demand less 780,640 pounds carry-in). Under volume regulation, total sales of spearmint oil by producers for the 2024-2025 marketing year would be held to 2,123,268 pounds (the recommended salable quantity for both classes of spearmint oil of 1,342,628 pounds plus 780,640 of carry-in).
This total available supply of 2,123,268 pounds should be more than adequate to supply the 1,600,000 pounds of anticipated total trade demand for spearmint oil. In addition, as of May 31, 2023, the total reserve pool for both classes of spearmint oil stood at 1,081,197 pounds. That quantity is expected to remain relatively unchanged over the course of the 2023-2024 marketing year, with current Committee reserve pool estimates totaling 1,082,744 pounds on May 31, 2024. Should trade demand increase unexpectedly during the 2024-2025 marketing year, reserve pool spearmint oil could be released into the market to supply that increase in demand.
The recommended allotment percentages, upon which 2024-2025 marketing year annual producer allotments are based, are 29 percent for Scotch spearmint oil and 26 percent for Native spearmint oil. Without volume regulation, producers would not be held to these allotment levels and would be able to sell unrestricted quantities of spearmint oil.
The AMS econometric model used to evaluate the Far West spearmint oil market estimated that the season average producer price per pound (for both classes of spearmint oil) would decline about $1.55 per pound without volume regulation. The surplus situation for the spearmint oil market that would exist without volume regulation in the 2024-2025 marketing year also would likely dampen prospects for improved producer prices in future years because of the excessive buildup in stocks.
In addition, spearmint oil prices would likely fluctuate with greater amplitude in the absence of volume regulation. The coefficient of variation, or CV (a standard measure of variability), of Far West spearmint oil producer prices for the period 1980-2022 (the years in which the Order has been in effect, and for which NASS data is available), is 24 percent, compared to 49 percent for the 20-year period (1960-1979) immediately prior to the establishment of the Order. Since higher CV values correspond to greater variability, this is an indicator of the price-stabilizing impact of the Order.
The use of volume regulation allows the industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. The use of volume regulation is believed to have little or no effect on consumer prices of products containing spearmint oil and would not result in fewer retail sales of such products.
The Committee discussed alternatives to the recommendations contained in this rule for both classes of spearmint oil. The Committee rejected the idea of not regulating volume for either class of spearmint oil because of the severe, price-depressing effects that are more likely to occur without volume regulation. The Committee also discussed and considered salable quantities and allotment percentages that were above and below the levels that were eventually recommended for both classes of spearmint oil. Ultimately, the action recommended by the Committee was to reduce the allotment percentage and salable quantity for both Scotch spearmint oil and Native spearmint oil from the levels established for the 2023-2024 marketing year.
As noted earlier, the Committee's recommendation to establish salable quantities and allotment percentages for both classes of spearmint oil was made after careful consideration of all available information including: (1) The estimated quantity of salable oil of each class held by producers and handlers; (2) the estimated demand for each class of oil; (3) the prospective production of each class of oil; (4) the total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year; (5) the quantity of reserve oil, by class, in storage; (6) producer prices of oil, including prices for each class of oil; and (7) general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity.
Based on its review, the Committee believes that the salable quantities and allotment percentages recommended would achieve the objectives sought. The Committee also believes that, should there be no volume regulation in effect for the upcoming marketing year, the Far West spearmint oil industry would return to the pronounced cyclical price patterns that occurred prior to the promulgation of the Order. As previously stated, annual salable quantities and allotment percentages have been issued for both classes of spearmint oil since the Order's inception. The salable quantities and allotment percentages proposed herein are expected to facilitate the goal of maintaining orderly marketing conditions for Far West spearmint oil for the 2024-2025 and future marketing years.
This proposed rule would establish the salable quantities and allotment percentages for Scotch and Native spearmint oil produced in the Far West during the 2024-2025 marketing year. Costs to producers and handlers, large and small, resulting from this proposal are expected to be offset by the benefits derived from a more stable market and increased returns. The benefits of this proposed rule are expected to be equally available to all producers and handlers regardless of their size.
The Committee's meeting was widely publicized throughout the spearmint oil industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the October 11, 2023, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.
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 OMB and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes in those requirements would be necessary as a result of this proposed rule. Should any changes become
This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large Far West spearmint oil handlers. 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 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.
AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.
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 Committee and other available information, USDA has determined that this proposed rule is consistent with and would effectuate the purposes of the Act.
A 30-day comment period is provided to allow interested persons to respond to this proposed rule. All written comments timely received will be considered before a final determination is made on this rule.
Marketing agreements, Oils and fats, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Agriculture Marketing Service proposes to amend 7 CFR part 985 as follows:
7 U.S.C. 601-674.
The salable quantity and allotment percentage for each class of spearmint oil during the marketing year beginning on June 1, 2023, shall be as follows:
(a) Class 1 (Scotch) oil—a salable quantity of 772,704 pounds and an allotment percentage of 34 percent.
(b) Class 3 (Native) oil—a salable quantity of 1,034,492 pounds and an allotment percentage of 40 percent.
The salable quantity and allotment percentage for each class of spearmint oil during the marketing year beginning on June 1, 2024, shall be as follows:
(a) Class 1 (Scotch) oil—a salable quantity of 663,648 pounds and an allotment percentage of 29 percent.
(b) Class 3 (Native) oil—a salable quantity of 678,980 pounds and an allotment percentage of 26 percent.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
This proposed rule would implement certain mandates in the Aircraft Certification, Safety, and Accountability Act of 2020 by requiring applicants for, and holders of, new and amended transport category airplane type certificates to submit, and subsequently continue to disclose, certain safety critical information to the FAA. The proposed rule would also require all applicants for type certificates, including new, amended, and supplemental type certificates, to submit a proposed certification plan to the FAA.
Send comments on or before March 25, 2024.
Send comments identified by docket number FAA-2024-0159 using any of the following methods:
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Susan McCormick, Systems Standards, Product Policy Management, Policy and Standards Division, Aircraft Certification Service, Federal Aviation Administration, 26805 East 68th Ave., Denver, CO 80249-6339; telephone (206) 231-3242; email
This proposed rule would implement certain mandates of section 105 of the Aircraft Certification, Safety, and Accountability Act
A certification plan would therefore be required, by regulation, for all applicants for TCs, including STCs, and would be required to include proposed milestones. After the FAA agrees to the certification plan, applicants would be required to keep it updated throughout the certification process.
This proposal also includes requirements applicable to certain holders of TCs. Holders of transport category airplane TCs covered under part 25 would be required, within 90 days of the effective date of a final rule, to submit certain safety critical information, if known and not previously submitted. Such holders would thereafter be required to continue to disclose such information upon discovery. While TC holders already submit much of this information via requirements found in §§ 21.3 and 183.63, this rule would require specific delineation of the safety critical information by the holder.
Because the FAA's proposal would largely align the new submittal and disclosure requirements for TC applicants and holders with existing certification and oversight practices and require holders only to submit known and previously-undisclosed information, the incremental costs of the proposal would be minimal. The FAA has found potential benefits from the proposal due to the projected enhancement of the identification, and the agency's receipt of, safety critical information.
On December 21, 2020, Congress passed the Consolidated Appropriations Act of 2021, which included the Aircraft Certification, Safety, and Accountability Act (Division V, Title 1). Section 105 of the Act was codified in title 49 U.S.C. 44704(e) (2021). Section 105 instructs the FAA to require the submittal, and subsequent ongoing disclosure, of certain information related to TCs for transport category airplanes covered under part 25 of title 14.
Section 105(e)(1), now 49 U.S.C. 44704(e)(1), prompts the FAA to require an applicant for, or holder of, a TC for a transport category airplane to submit safety critical information to the FAA. That section defines five categories of required safety critical information, as summarized below. It allows the FAA to set the form, manner, and time of the submittal.
Section 105(e)(1)'s requirements are accompanied by certain caveats. First, as noted above, it applies to only those TCs for transport category airplanes that are “covered under part 25 of title 14.” Second, the section states that the required submittals are to be made “(N)otwithstanding a delegation described in section 44702(d).”
Section 105 also directs certain “Ongoing Communications.” Specifically, Section 105(e)(2)(A) instructs the FAA to require that an applicant for, or holder of, a transport airplane type certificate disclose to the FAA any newly discovered information, or any design or analysis change, that would materially alter the applicant or holder's prior submission of safety critical information to the FAA under section 105(e)(1). As with the initial disclosure requirement, this section allows the FAA to set the form, manner, and time of the communication. Section 105(e)(2)(b) directs the FAA to establish milestones throughout the certification process at which the systems of a proposed transport category airplane design will be assessed. These required assessments must determine whether a change made to a system during the certification process should prompt the FAA to consider the system as novel or unusual.
Section 105 sets forth five categories of safety critical information that applicants or holders must submit and disclose. These categories generally relate to information about the proposed design's potential to affect the flightcrew's ability to control the airplane, and about the analysis of potential hazards that could be posed by the design. The following paragraphs summarize the five categories of safety critical information.
(1) Details, functions, and failure modes of any system that, without being commanded by the flightcrew, could command the operation of a function or feature that is necessary for control of the airplane, or could affect its flight path or airspeed.
(2) Details, functions, failure modes, and mode annunciations about the transport category airplane's autopilot and autothrottle systems.
(3) Failures or operating conditions that the TC applicant or holder anticipates or has concluded would result in a hazardous or catastrophic outcome.
(4) Any adverse handling quality that, without adding flight control augmenting software to the airplane design, would result in a failure to meet the requirements of FAA regulations.
(5) A system safety assessment with respect to any system described in one of the first two categories (
The FAA reviews applicants' proposed designs of products such as airplanes and engines, and, if it finds that the design meets regulatory standards, issues a design approval known as a “type certificate.” For transport category airplanes, which are used by air carriers to transport the public in scheduled service, the FAA reviews proposed designs primarily using the standards in 14 CFR part 25. Part 25 replaced part 4b of the Civil Air Regulations in 1965.
After obtaining a TC for a transport category airplane from the FAA, most TC holders obtain (or seek to amend) a production certificate, which the FAA issues after the manufacturer proves that it is capable of repeatedly building the product according to its approved design. After an individual aircraft is built, the FAA issues an airworthiness certificate after finding that the aircraft conforms to its design and is in a condition for safe operation.
Several part 25 design standards for transport category airplanes are relevant to the safety critical information that Congress has defined, and directed the FAA to require from, TC applicants and holders.
To ensure the reliability of proposed designs for transport category airplanes, the FAA requires applicants to analyze the potential effects that failures and malfunctions could have on the airplane and its flightcrew. Among the FAA's reliability regulations for transport category airplanes is § 25.1309, which generally requires the likelihood of a failure to be inversely proportional to its potential effect. Specifically, it requires that any failure condition which could cause the loss of the airplane (a “catastrophic” failure condition) to be so unlikely as to never occur during the expected lifetime of all airplanes of that model (
An FAA-approved means of compliance with 14 CFR 25.1309 is AC 25.1309-1A,
In some cases, the applicant submits the SSA to a designee of the FAA. Designees of the FAA can be individual or organizational. Organizational designees are known as ODAs because the FAA has granted them “organization designation authorization.”
The FAA's reliability standards for transport category airplanes certified under part 25 also include § 25.1301(a)(4), which requires that each item of installed equipment on the airplane function properly when installed. Implementing policy for § 25.1301 is included in several ACs, such as AC 20-174,
Additional part 25 standards of potential relevance to safety critical information as defined by Congress, are § 25.143, general flight maneuvers; § 25.672, which governs stability augmentation and automatic and power-operated systems; § 25.1322, for flightcrew alerting; and § 25.1329, which governs flight guidance systems. The foregoing part 25 regulations, which current applicants for transport category airplane TCs must show that their proposed design complies with,
An applicant has 5 years, from the date of application, to obtain FAA approval of the applicant's proposed transport category airplane TC, or change to such certificate.
Since each proposal for an original or amended TC is different, and the designs of modern transport category airplanes are complex, proposed designs will inevitably present multiple issues, whether technical, regulatory, or administrative, that require a heightened degree of analysis by the FAA and engagement with the applicant. The FAA analyzes such issues via the development of issue papers.
If a proposed design feature is novel or unusual (
In 1969, the FAA noted that while air carriers were required to notify the FAA of certain safety issues occurring on their airplanes and engines, it is the manufacturers of those products who have the
The FAA thus proposed, and subsequently issued, a rule—14 CFR 21.3—requiring manufacturers to promptly
Thus, after the FAA approves a proposed design via the issuance of a TC, and the manufacturer builds its product according to that approved design, and the individual aircraft receives a certificate of airworthiness and enters service, the manufacturer's obligation to ensure the airworthiness of its product continues. The manufacturer must report certain information to the FAA in accordance with § 21.3. If the FAA determines a design change is required to correct an unsafe condition in a product, the manufacturer is required by § 21.99 to submit a proposed change to its design, and the FAA may mandate this change via part 39 of 14 CFR by the issuance of an airworthiness directive (AD).
Nearly every domestic holder of an original or amended TC for a part 25 transport category airplane in the U.S. is also the holder of an ODA.
FAA policy provides guidance on the details of the provision of such information.
The following information, due to its inclusion or reference in investigations by Congressional committees, was pertinent to the development of the Congressional requirements that this NPRM proposes to implement.
The FAA approved the amended TC for the Boeing Model 737-8 in 2017. On October 29, 2018, a Boeing Model 737-8 airplane operated by Lion Air (Lion Air Flight 610) was involved in an accident after takeoff in Indonesia, resulting in 189 fatalities. The accident was investigated by the Indonesian authorities (Komite Nasional Keselamatan Transportasi (KNKT))
On March 10, 2019, a Boeing Model 737-8 airplane operated by Ethiopian Airlines (Ethiopian Airlines Flight 302) was involved in an accident after takeoff in Ethiopia, resulting in 157 fatalities. The accident was investigated by the Ethiopian Accident Investigation Bureau
The investigations of these accidents generally found that erroneous data from one of the airplane's two angle-of-attack sensors could cause the maneuvering characteristics augmentation system (MCAS), a function of the airplane's flight control software, to command repeated airplane nose-down trim of the horizontal stabilizer, and could result in flightdeck
Flightdeck effects common to both accidents were differences in the altitude and airspeed displayed for each pilot and persistent stall warning. In the Ethiopian accident, the significant difference in airspeeds resulted in the autothrottle becoming inoperative, thus leaving the thrust levers at the current takeoff thrust setting. The throttles remained at takeoff power throughout the flight, resulting in high airspeed, which made it more difficult for the flightcrew to control the airplane.
The Boeing Models 737-8 and 737-9 were certified via amendment of the existing Boeing Model 737 TC and were the first of a set of derivative models collectively marketed by Boeing as the 737 MAX. To certify the 737 MAX airplanes with larger and relocated engines, Boeing added MCAS to the airplane's flight control software so that the airplane handling qualities would comply with FAA design standards.
Following the accidents, the FAA mandated corrective actions to address the unsafe condition related to MCAS on the 737 MAX. The actions included requiring changes to the airplane's flight control software related to MCAS and related flightcrew procedures. These changes were developed by Boeing and its ODA unit pursuant to §§ 21.3, 21.99 and 183.63, and, after a public comment process, were required by the FAA via the issuance of an AD.
The two accidents also led to investigations of how the Boeing 737 MAX airplane had been certified by the FAA; of the FAA's delegation of certain certification functions to the Boeing ODA; and of how the FAA certifies transport category airplanes in general. These investigations included reviews by the NTSB
The investigations of the certification of the 737 MAX generally found that Boeing, as the applicant for an amended TC, inadequately disclosed certain information about its proposed design, and its potential safety risks, to the FAA during the certification process.
The investigations also generally found that Boeing's hazard and safety assessments of these systems on the 737 MAX did not adequately account for the severity of hazard that MCAS posed.
The investigations found that the company's SSAs that addressed MCAS considered the hazard from a single activation, but did not address the hazard that could be presented by repeated activations of MCAS.
After the foregoing reviews of the FAA's certification of the 737 MAX, in December of 2020 Congress passed the Aircraft Certification, Safety, and Accountability Act (ACSAA).
Section 105's provisions generally seek to ensure that information about the potential hazards of a transport category airplane's systems is adequately disclosed by applicants for design approval, so that such information can be adequately evaluated by the applicant and the FAA.
Section 105 does not apply these requirements only to “applicants,” as it does certain other provisions. Rather, it also applies the initial submittal, and ongoing disclosure requirement, to the “holder of” a type certificate for a transport category airplane covered under part 25.
The FAA's authority to issue rules on aviation safety is found in title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the FAA's authority.
This proposed rulemaking is issued under the authority described in subtitle VII, part A, subpart III, section 44701, General Requirements. Under that section, the FAA is charged with prescribing regulations and minimum standards for the design and performance of aircraft that the Administrator finds necessary for safety in air commerce. This proposed regulation is within the scope of that authority.
Authority for this particular rulemaking is derived from section 105(a) of ACSAA. Section 105, “Disclosure of Safety Critical Information,” of ACSAA directs the Administrator of the FAA to require an applicant for, or holder of, a TC for a transport category airplane covered under 14 CFR part 25 to submit and disclose certain safety critical information to the FAA.
In this rulemaking, the FAA proposes to impose, as required by section 105(a),
In this NPRM, the FAA proposes a new § 21.15(d) that would require applicants for new or amended TCs to submit proposed certification plans to the FAA, and that a new § 21.113(c) would require the same for applicants for new or amended STCs. Consistent with current practice, such plans would be required to be submitted with the application. The proposed certification plans would be required to include planning information; proposed milestones; and, for transport category airplane applications, subsequent updates to include the safety critical information that ACSAA requires the FAA to obtain from such applicants.
Under current practices, applicants typically submit a variety of information with their proposed certification plans, as described in FAA Order 8110.4C,
Thus, proposed certification plans would be required, via a regulatory performance standard, to contain sufficient information for the applicant's showings of compliance, and the FAA's findings, to be timely and accurately made. The provided information would be substantially the same as described in the aforementioned FAA guidance documents. The information provided in the certification plan would need to be sufficiently developed, and detailed, to enable the FAA to determine its level of involvement for each compliance showing and finding, ensure prompt submittal of all necessary compliance data, and allow all showings and findings to be timely and accurately made for each project.
The FAA proposes that applicants would be required to submit these proposed certification plans in a manner consistent with current practices. Thus, applicants would be required to submit certain preliminary key project information, specifically the applicant's proposed certification basis;
Under current practices, it is common for applicants to describe safety critical information as deliverables within the compliance checklist, and include preliminary system safety assessment sections and referenced documentation. The FAA anticipates that this practice would continue, under the new standard for the contents of proposed certification plans. FAA Order 8110.4C and the ePSCP Guide would still provide applicants with additional information and best practices for submittals to meet the new regulatory requirements.
TC applicants generally propose a project schedule as part of their certification plan. This proposed project schedule includes key events, called milestones. Typical milestones include familiarization meetings, submittal of issue papers (to develop the resolution of issues that may necessitate determinations such as special conditions, ELOSs, and exemptions), type board meetings, first airplane flight, data submittal requirements, inspection/conformity dates, and associated test dates.
In addition to the typical milestones that the applicant and the FAA use to plan the development and review of the project, the proposed schedule would, for applications for new or amended TCs for transport category airplanes, need to include sufficient milestones to enable compliance with requirements of the proposed rule. Such milestones would be consistent with current practices, and would include dates for submitting certain compliance documents such as safety assessments (including functional hazard assessments, fault tree analyses, the requirements validation plan, software development documents, and minimum training requirements
Under current practices, an applicant's initial proposed certification plan also necessitates subsequent updates. These planned updates are, and under this proposal would continue to be, included as milestones within the proposed certification plan. This would establish “gates” throughout the certification process at which a proposed airplane system will be assessed for changes and impacts to the overall certification approach (
In summary, the foregoing milestones would be used to monitor, review, and assess the progress of the proposed airplane design and systems toward compliance, jointly by the FAA and the applicant.
This proposal would require applicants for new and amended TCs for transport category airplanes to submit safety critical information as an update to the certification plan that proposed § 21.15(d) would require. Proposed § 21.15(e) would require that this update to the applicant's certification plan include or describe all of the safety critical information set forth in proposed § 21.1(c). An explanation of each of these five categories of safety critical information is set forth later in this proposal.
Regarding the level of detail to be provided with the submittal of safety critical information with the
Applicants would be required to describe safety critical information in the update required by proposed § 21.15(e). This safety critical information would be as described elsewhere in this NPRM. The certification plan update would also include the anticipated relevant deliverables that are necessary to accomplish the requirements of the certification plan. This initial submittal of safety critical information with the certification plan update would be one step in the iterative process that builds toward the applicant's eventual compliance showings with certain regulations.
For example, the safety assessment process is often used by applicants to show compliance with certain regulatory design standards that are relevant to the section 105 categories of safety critical information, such as § 25.1309. Common and FAA -accepted means of compliance with that regulation are SAE Aerospace Recommended Practice (ARP)4761, “Guidelines and Methods for Conducting the Safety Assessment Process on Civil Airborne Systems and Equipment,” AC 25.1309-1A, and the “Arsenal” version of AC 25.1309-1A,
The FAA proposes that requiring the submittal of safety critical information, even in preliminary form, at the time of application could be unreasonably early, given the likely state of the proposed design, especially for complex projects or new TCs. Thus, to implement this requirement to submit safety critical information, applicants for new or amended transport category airplane TCs would be required to identify, as part of their initial proposed certification plan, their expected (requested) certification date. This would align with current practice. Then, to ensure that the FAA has adequate time to review the safety critical information, the transport category airplane applicant would be required to submit that safety critical information no later than 6 months prior to the applicant's requested certification date, or within one year of submittal of the application, whichever is earlier. The FAA requests comment on these proposed timeframes.
Section 105 begins with “Notwithstanding a delegation described in section 44702(d). . .” Section 44702(d) authorizes the Administrator to delegate, to qualified private persons, certain matters related to the issuance of certificates, including type certificates. Therefore, the FAA proposes in this NPRM that all new submittals, and all ongoing disclosures, of safety critical information, by applicants be made to the FAA itself, not to any individual or organizational designee.
This initial submittal would not end the applicant's obligation to provide safety critical information to the FAA. Section 105 distinguishes between two required obligations: of the initial submittal, and then the ongoing disclosure, of safety critical information.
Proposed § 21.15(f) would require transport category airplane applicants, for the remainder of the certification process, to inform the FAA, within 3 business days of discovery, of any information or proposed design or analysis change that would materially alter
An example of such a proposed “design or analysis change” would be the discovery that a system safety analysis that the applicant previously submitted pursuant to this proposal, or was planned to be used as part of the applicant's showing of compliance with § 25.1309, erroneously misstated the likelihood of a hazard. This disclosure could be the applicant's identification of an error in a fault tree analysis.
The FAA proposes that such design or analysis change would be required to be submitted within 3 days of discovery, rather than later, due to the potential importance of this information to safety and compliance, and to minimize the likelihood that the change delays the project.
Proposed § 21.3(g) would require each holder (except STC holders) of a transport category airplane TC covered under part 25, within 90 days of the effective date of the final rule, to submit categories of safety critical information, if known and if not previously submitted, to the FAA for each model. The categories of required safety critical information for holders would be the same as for applicants, and would be defined in proposed § 21.1(c).
The FAA does not expect this submittal to be voluminous, or its preparation burdensome or overly time-consuming. First, much of the required safety critical information will have already been submitted to the FAA, through the TC application and certification process. Safety critical information is included in the type design, operating limitations, substantiation documents, and other required information as a part of the TC.
Also, the FAA proposes that holders would be required to submit such information if “known” The purpose of this proposed limitation is to clarify that the new submittal requirement would not be intended to prompt all holders of transport category airplane TCs covered under part 25 to reevaluate all of their safety critical information for previously-approved designs, or interview past employees. Rather, safety critical information is “known” to the holder if any FAA designee including ODA staff (including administrators and unit members), any current manager
The FAA also proposes that previously-submitted information would not need to be resubmitted by TC holders or ODA holders to the FAA. As noted above, much of this information will have been previously submitted by
The FAA further proposes to limit the scope of this submittal requirement, and the ongoing disclosure requirement described in the next section, to just those transport category airplane TC holders whose airplanes are “covered under part 25 [of title 14].” This would make the proposal consistent with the text of section 105. It would thus exclude transport category airplanes that do not have 14 CFR part 25 in their certification basis.
Proposed § 21.3(g), beginning 90 days after the effective date of the proposed rule, would require TC holders, should they become aware of any newly discovered safety critical information, or a design or analysis change that would materially alter
The FAA proposes that the 90-day start date for this ongoing disclosure would logically follow the proposed deadline (within 90 days) for the initial submittal of safety critical information by TC holders. The FAA also considers that 90 days would be sufficient time for transport category airplane TC holders to review their internal procedures and make any necessary revisions in order to facilitate the proposed ongoing disclosure requirements.
As discussed in section B of this NPRM, TC and ODA holders currently submit certain information to the FAA, under the auspices of regulations such as §§ 21.3 and 183.63. Some safety critical information is likely to also prompt reporting under those two regulations. However, under this proposal, a TC holder of an airplane covered under part 25 would not be relieved of any other reporting obligation such as those under § 21.3, and an ODA holder similarly not relieved of any reporting obligation under part 183, as a result of the new obligation, which Congress required the FAA to mandate, to disclose safety critical information. Section 21.3 reports are, as reflected by their precise topics and accelerated timelines, urgent safety matters. Existing part 183 reporting may not characterize the safety critical information as clearly as is needed to implement this statutory mandate. However, the FAA requests comment on how these reporting processes might dovetail with this proposal, for greater efficiency in implementing the Congressional mandate.
Existing § 21.3(e) establishes timeframes for the required submittal of information under § 21.3. Those timeframes are relatively short, due to the likely urgent safety implications of the information. Proposed § 21.3(g) includes timelines appropriate to the submittal of safety critical information. Therefore, as part of the implementation of proposed § 21.3(g), this NPRM proposes a minor revision of § 21.3(e), to exclude the information that would be submitted as part of § 21.3(g) from the requirements of paragraph (e), and to change the title of that section.
Proposed § 21.1(c) would contain the definitions of the five categories of safety critical information for the purposes of proposed §§ 21.15(e) and (f), and 21.3(g). Each category of safety critical information that the FAA proposes, as required by Congress, to require to be submitted and subsequently disclosed by applicants in proposed § 21.15(e) and (f), and by holders in proposed § 21.3(g), is explained as follows.
The first category of safety critical information that the FAA, pursuant to Congress' direction, would require applicants and holders to submit and disclose would be all design and operational details, intended functions, and failure modes of any system that, without being commanded by the flightcrew, commands the operation of any safety critical function or feature required for control of the airplane during flight or that otherwise changes the flight path or airspeed of an airplane.
The FAA proposes that the regulatory definition of this category of information would be the same as the statutory definition, except for changing the opening “Any” to “All” to ensure that all, not just selected, information is provided, and making “flight crew” one word for consistency with other parts of 14 CFR.
First, the “system(s)” which the FAA proposes would be covered by this requirement include, but are not limited to, flight control systems and other computer (software) controlled systems (
A “safety critical function or feature” would be one whose failure could be hazardous or catastrophic. This would align with how the FAA has defined safety critical in other contexts, including transport category airplane SSA.
Regarding “all design and operational details,” the FAA proposes that such details would be those with relevance to a referenced system's function, failure, or operational suitability. Under current practice, in order to show compliance with §§ 25.1301(a) and 25.1309(a), the submitted information would include sufficient design and operational detail, and description of the intended function, to enable the FAA to assess whether the equipment is of a kind and design appropriate to its intended function and performs its intended function under any operating condition. Section 25.1309(d) requires the applicant to submit an analysis of the possible modes of failure, probability of failures, resulting effects, etc., (
The FAA notes some overlap between this proposed category of information and the information that § 21.3(c)(11) requires manufacturers to submit to the FAA: “any . . . flight control malfunction, defect, or failure which causes an interference with normal control of the aircraft for which derogates the flying qualities.” However, as previously discussed, any such overlap would not obviate the initial submittal and subsequent disclosure requirements that Congress directed the FAA to mandate, not only upon applicants, but also upon holders of transport category airplane TCs.
The FAA anticipates that this category of safety critical information should not be overly difficult or time-consuming for holders to submit or continue to disclose. As previously noted, part 25 transport category airplane TC holders will have disclosed much, if not all, of this information when seeking their original or amended TC. For example, much “safety critical” information would have been disclosed as part of showing of compliance with § 25.1309, as described above.
The next category of mandatory safety critical information that the FAA would require applicants and holders to submit and disclose would be all design and operational details, intended functions, failure modes, and mode annunciations of autopilot and autothrottle systems, if applicable.
For purposes of this requirement, the term “autopilot” means a function that would provide automatic control of the airplane, typically in pitch, roll, and yaw. The term includes the sensors, computers, power supplies, servo-motors/actuators and associated wiring, necessary for its function. It includes any indications and controllers necessary for the pilot to manage and supervise the system. Any part of the autopilot system that remains connected to the primary flight controls when the autopilot is not in use is regarded as a part of the primary flight controls.
For purposes of this requirement, the term “autothrottle (autothrust)” means a function that provides automatic control of the thrust of the airplane. The term includes the sensors, computers, power supplies, servo-motors/actuators and associated wiring, necessary for its function. It includes any indications and controllers necessary for the pilot to manage and supervise the system. Any part of the autothrust that remains connected to the engine controls when the autothrust is not in use is regarded as a part of the engine control system.
For the purposes of this requirement, a “mode annunciation” is a function that provides the flightcrew with awareness of the current automation mode, alerts them of any mode changes or failures that could degrade the handling or operational characteristics of the airplane, and may require the flightcrew to alter their primary control strategy. The mode annunciation is included because it is imperative that the flightcrew understand the state of the airplane systems so they can interact with those systems appropriately as they fly the airplane. The FAA posits that Congress included mode annunciation in this category because it is imperative that the flightcrew understand the state of the airplane systems to minimize flightcrew errors and confusion concerning the behavior and operation of the flight guidance system as they fly the airplane.
Although paragraph (B) of section 105(a) did not begin with the term “any” or “all,” the FAA is proposing that “all” such details, failure modes, etc., known to the applicant or holder would be required to be submitted and subsequently disclosed. This is to ensure that all, not just selected, applicable information is provided.
Again, while there may be overlap with § 21.3(c)(11), as discussed in section B of this NPRM, the FAA proposes that this would be an independent requirement.
The FAA again anticipates that this information would not be overly difficult or time-consuming for applicants or holders to submit or disclose, because the compliance document(s) would have been submitted by the applicant as part of its showings of compliance and the company would be highlighting how the discovered information affects that prior showing of compliance with substantive regulations (for example, §§ 25.1301(a) and 25.1309(a), (c), and (d) for certain equipment, systems, and installations; § 25.1322 for flightcrew alerting; and certain paragraphs of § 25.1329 for flight guidance systems).
The next category of safety critical information that the FAA proposes that applicants and holders be required to submit and continue to disclose, is all failure or operating conditions that the TC applicant or holder anticipates or has concluded would result in an outcome with a severity level of hazardous or catastrophic.
As previously noted, current FAA guidance for applicants addresses catastrophic failure and operating conditions, but does not explicitly address “hazardous” conditions.
“Hazardous” for purposes of this proposed rule would be the following:
A failure condition that would reduce the capability of the airplane or the ability of the flightcrew to cope with adverse operating conditions to the extent that there would be—
• A large reduction in safety margins or functional capabilities,
• Physical distress or excessive workload such that the flightcrew cannot be relied upon to perform their tasks accurately or completely, or
• Serious or fatal injuries to a relatively small number of persons other than the flightcrew.
“Catastrophic” for purposes of this rule would be a failure condition that would result in multiple fatalities, usually with the loss of the airplane.
The FAA anticipates that this category of safety critical information would not be overly difficult or time-consuming for applicants or holders to submit or disclose, for several reasons.
First, applicants will submit, and all current TC holders would have submitted, during certification of
The FAA also notes that the requirement in section 105(a), and thus this NPRM, is intended to prompt the submittal, disclosure, and assessment of potential failure conditions that could have an outcome of hazardous or catastrophic. The FAA invites comment on this issue.
The fourth category of safety critical information that the FAA would require applicants and holders to submit and disclose would be any adverse handling quality that fails to meet the requirements of part 25 of this chapter without the addition of a software system to augment the flight controls of the airplane to produce compliant handling qualities.
For purposes of this rulemaking, and consistent with FAA policy, an “adverse” handling quality would be one that does not meet the applicable regulations on handling qualities in part 25. Some of the “applicable regulations” for purposes of this requirement would be the Controllability and Maneuverability regulations in subpart B of part 25; § 25.672, Stability augmentation
Examples of such “software system(s)” include MCAS on the Boeing 737 MAX, pitch augmentation for the Boeing Model 777, and a flight control system that controls the yaw damper system of an airplane.
The FAA notes the similarity of this provision of the proposed fourth category with the requirement of § 21.3(c)(11), but again posits that it is sufficiently different that a separate requirement is necessary for holders, in order to comply with the statute.
The FAA anticipates that this information would not be overly difficult or time-consuming for applicants or holders to submit or disclose, because by definition the system was required for the airplane to be compliant with FAA stability standards, and therefore would have been on the airplane's compliance documentation.
The fifth and final category of mandatory safety critical information that the FAA would require applicants and holders to submit and disclose would be a system safety assessment with respect to a system described in paragraph (1) or (2) of proposed § 21.1(c), or with respect to any component or other system for which failure or erroneous operation of such component or system could result in an outcome with a severity level of hazardous or catastrophic.
The FAA anticipates that previously-approved transport category airplane designs covered under part 25 will likely have this information in their SSAs, and that everything from a “hazardous” to a “catastrophic” failure condition would be included, and therefore not required to be resubmitted by a holder. Section 25.1309(d) requires all applicants for transport category airplane TCs to submit an analysis of the possible modes of failure, probability of failures, resulting effects (including effects of erroneous operation), etc., (
The definitions of catastrophic and hazardous would be as previously noted. For purposes of proposed § 21.3(g), applicants and holders could use the definitions in the “Arsenal” version of AC 25.1309-1A, or in relevant FAA regulation or policy issued after the effective date of this proposed rule.
Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Order 12866 and Executive Order 13563, as amended by Executive Order 14094 (“Modernizing Regulatory Review”), direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify the costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a 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 $177,000,000, using the most current (2022) Implicit Price Deflator for the Gross Domestic Product. This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule.
In conducting these analyses, the FAA has determined that this rule: would result in minimal costs; is not a `significant regulatory action' as defined in section 3(f) of Executive Order 12866; will not have a significant economic impact on a substantial number of small entities; will not create unnecessary obstacles to the foreign commerce of the United States; and will not impose an unfunded mandate on State, local, or Tribal governments, or on the private sector.
This rule would implement a Congressional mandate by imposing new regulatory requirements (proposed § 21.15(d), (e), and (f) for applicants for new and amended TCs and proposed § 21.113(c)(1) through (c)(4) for applicants for new and amended STCs, and new regulatory requirements (proposed § 21.3(g)(1) and (2)) for TC holders. This proposal would add definitions for safety critical information, in proposed § 21.1(c).
The following paragraphs describe the proposal, the baseline (current rule or current practice or current policy), and the costs/benefits. The FAA expects the costs to be minimal as described below. Benefits are addressed qualitatively.
The FAA would be more likely to receive safety critical information in a timely manner. The agency would also be more likely to receive safety critical information as the applicant would be aware of what information is considered safety critical due to the definitions in proposed § 21.1(c).
This could have a safety benefit because the agency would be aware of this important information relatively early in the certification process and would be more likely to receive specific safety critical information at that point. The FAA could then identify and provide feedback to the applicant about their proposed design and compliance information specific to safety critical information early.
This could have a safety benefit because the agency would be aware of changes to safety critical information earlier (within 3 business days of discovery). The FAA could then identify and share potential concerns about the changes with the applicant earlier, and resolve these concerns earlier.
Also, there might be a benefit of submitting directly to the FAA, as it would be more likely that the appropriate information would get to the FAA. When investigating the FAA's certification of the Boeing 737 MAX, a Congressional committee found that Boeing did not clearly relay important safety related information to the FAA because there was no requirement to do so.
“. . . hinder[ed] a more comprehensive FAA review of the 737 MAX which may have improved the safety of the airplane . . .”
The benefits of this requirement would be ensuring that the FAA would be aware of safety critical information, if any, that it had not previously been made aware of. This would be a potential safety benefit as the FAA would be able to identify and address any potential issues.
The FAA calls for comment on all the preceding determinations.
Based on the preceding discussion, the FAA concludes that the proposed rule would impose minimal costs on industry, as discussed in the regulatory notices and analyses section. The FAA has found potential benefits from the proposal. The FAA may receive, and therefore be aware of, safety critical information that it had not previously been made aware of, not only from transport category airplane TC applicants but also from holders. It would receive the safety critical information earlier in, and more definitively throughout, the certification process. This could result in a safety benefit, as the FAA would be able to identify and share concerns with the applicant and address any potential issues. The proposed rule would codify the current practice of submitting a proposed certification plan with milestones, and thus provide a planning benefit, and increased certainty and predictability, for applicants. As it would follow current practice, this requirement would impose minimal cost. The regulatory implementation of the Congressional requirement that applicants and holders submit and disclose five categories of safety critical information would be another safety benefit. The submittal of previously undisclosed, and continued disclosure of newly discovered, safety critical information by transport category airplane TC holders may also provide a safety benefit.
The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, 94 Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, Mar. 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111-240, 124 Stat. 2504 Sept. 27, 2010), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The FAA has determined that, based on the Small Business Administration (SBA) size standard for aircraft manufacturing, (Table 1), none of the entities that would be subject to the proposed rulemaking are small entities. Also, as described in the RIA, the proposed rule would impose minimal costs. Therefore, the FAA proposes to certify that the rule would not have a significant economic impact on a substantial number of small entities. The FAA welcomes comments on the basis for this certification.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.
The FAA has assessed the potential effect of this rule and determined that as it results in a minimal cost to U.S. manufacturers, it would not create an unnecessary obstacle to foreign commerce. As a result, the FAA does not consider this rule as creating an unnecessary obstacle to foreign commerce.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or Tribal government or the private sector to incur direct costs without the Federal government having first provided the funds to pay those costs. The FAA determined that the proposed rule would not result in the expenditure of $177,000,000 or more by State, local, or Tribal governments, in the aggregate, or the private sector, in any one year.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there would be no new requirement for information collection associated with the proposed requirement for transport category airplane TC applicants and holders to submit and disclose safety critical information because this information is already submitted under existing processes, as described elsewhere in this NPRM. Approval to collect such information under those processes was previously approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and was assigned OMB Control Number 2120-0018.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.
FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act (NEPA) in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6f for regulations and involves no extraordinary circumstances.
The FAA has analyzed this proposed rule under the principles and criteria of Executive Order (E.O.) 13132, Federalism. The FAA has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have federalism implications.
Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments,
The FAA analyzed this proposed rule under E.O. 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The FAA has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.
Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of E.O. 13609 and has determined that this action would have no effect on international regulatory cooperation.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The FAA 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 submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
Confidential Business Information (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 the person in the
A copy of this NPRM, all comments received, any final rule, and all background material may be viewed online 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) 267-9677. 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 in the electronic docket for this rulemaking.
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the person listed under the
Aircraft, Aviation safety, Exports, Imports, Reporting and recordkeeping requirements.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations as follows:
42 U.S.C. 7572; 49 U.S.C. 106(f), 106(g), 40105, 40113, 44701-44702, 44704, 44707, 44709, 44711, 44713, 44715, 45303.
(c) For purposes of §§ 21.3 and 21.15, safety critical information is:
(1) All design and operational details, intended functions, and failure modes of any system that, without being commanded by the flightcrew, commands the operation of any safety critical function or feature required for control of the airplane during flight or that otherwise changes the flight path or airspeed of an airplane;
(2) all design and operational details, intended functions, failure modes, and mode annunciations of autopilot and autothrottle systems, if applicable;
(3) all failure or operating conditions that the type certificate applicant or holder anticipates or has concluded would result in an outcome with a severity level of hazardous or catastrophic;
(4) any adverse handling quality that fails to meet the requirements of part 25 of this chapter without the addition of a software system to augment the flight controls of the airplane to produce compliant handling qualities; and
(5) a system safety assessment with respect to a system described in paragraph (1) or (2) of this paragraph, or with respect to any component or other system for which failure or erroneous operation of such component or system could result in an outcome with a severity level of hazardous or catastrophic.
(e) Each report required by this section, except as provided in § 21.3(g)—
(g) The holder of a type certificate, including an amended type certificate but not including a supplemental type
(1) Within 90 days of [date 60 days after publication of final rule in the
(2) After 90 days of [date 60 days after publication of final rule in the
(d) An application for a type certificate, including a new or amended type certificate, must be accompanied by a proposed certification plan. The certification plan must include:
(1) A proposed certification basis;
(2) A proposed compliance checklist that contains means of compliance, and that identifies all deliverables that the applicant anticipates will be necessary to show compliance;
(3) A proposed project schedule, with milestones;
(4) Any other information necessary to allow the applicant's showings and certifying statement, and the FAA's findings, of compliance to be timely and accurately made; and
(5) For applications for a new or amended, but not supplemental, type certificate for a transport category airplane, a proposed milestone that identifies the applicant's requested date for type certificate issuance.
(e) Within 1 year of submitting the application for a new or amended, but not supplemental, type certificate for a transport category airplane, but no later than 6 months prior to the requested date of issuance of the type certificate, the applicant must update the proposed certification plan required by § 21.15(d) to include or describe all of the safety critical information set forth in § 21.1(c).
(f) Each applicant for a new or amended, but not supplemental, type certificate for a transport category airplane must, within 3 business days of discovery, disclose to the FAA any information or design or analysis change that would materially alter any prior submission of the safety critical information set forth in § 21.1(c).
(c) The application for an STC must be made in the form and manner prescribed by the FAA and must be accompanied by a proposed certification plan. The certification plan must include:
(1) A proposed certification basis;
(2) A proposed compliance checklist that contains means of compliance, and that identifies all deliverables that the applicant anticipates will be necessary to show compliance;
(3) A proposed project schedule, with milestones; and
(4) Any other information necessary to allow the applicant's showings and certifying statement, and the FAA's findings, of compliance to be timely and accurately made.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace for Barrow County Airport, Winder, GA, extending upward from 700 feet above the surface. This action would increase the existing radius and update the airport's name and geographic coordinates to coincide with the FAA's database.
Comments must be received on or before March 11, 2024.
Send comments identified by FAA Docket No. FAA-2023-2467 and Airspace Docket No. 23-ASO-42 using any of the following methods:
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FAA Order JO 7400.11H Airspace Designations and Reporting Points and subsequent amendments can be viewed online at
Scott Stuart, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; Telephone: (404) 305-5926.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would amend Class E airspace in Winder, GA.
The FAA invites interested persons to participate in this rulemaking by
The FAA will file in the docket all comments it receives and a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Operations office (see
Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, incorporated by reference in 14 CFR 71.1 annually. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, Airspace Designations and Reporting Points, dated August 11, 2023, and effective September 15, 2023. These updates will be published in the next FAA Order JO 7400.11 update. FAA Order JO 7400.11H is publicly available as listed in the
The FAA proposes an amendment to 14 CFR part 71 to amend Class E airspace extending upward from 700 feet above the surface for Barrow County Airport, Winder, GA, by updating the airport name (formerly Winder Airport) and geographic coordinates to coincide with the FAA's database. Also, the FAA is proposing to amend the radius by increasing it to 7.1 miles (previously 6.5 miles), which is consistent with the outcome of an airspace evaluation. Controlled airspace is necessary for the area's safety and management of instrument flight rules (IFR) operations.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 7.1-mile radius of Barrow County Airport.
Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).
Notice of Proposed Rulemaking (NPRM); request for comments.
This rulemaking proposes updates to the National Performance Management Measures regulations to consider impacts of national emergencies on performance achievement, address compliance determinations and penalty assessment for the pavement condition measures, clarify data collection standards and requirements, adjust freight reporting to align with the 4-year update cycle for State Freight Plans in the Bipartisan Infrastructure Law (BIL), and provide select clarifying technical corrections. The rulemaking would also incorporate by reference the Highway Performance Monitoring System (HPMS) Field Manual, which includes updated fields related to the collection of Transportation Performance Management (TPM) data. This rulemaking also would provide for greater opportunities for meaningful safety performance targets and outcomes, consider approaches to alternative safety performance measures, and align performance targets for the three common measures that must be identical with the National Highway Traffic Safety Administration (NHTSA).
Comments must be received on or before February 26, 2024.
To ensure that you do not duplicate your docket submissions, please submit comments by only one of the following means:
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All submissions should include the agency name and the docket number that appears in the heading of this document or the Regulation Identifier Number (RIN) for the rulemaking. All comments received will be posted without change to
Mrs. Alexis Kuklenski, Office of Infrastructure (HIF), (202) 689-9229, or via email at
This document and all comments received may be viewed online through the Federal eRulemaking portal at
All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, FHWA will also continue to file relevant information in the docket as it becomes available after the comment period closing date and interested persons should continue to examine the docket for new material. A final rule may be published at any time after close of the comment period and after DOT has had the opportunity to review the comments submitted.
The Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141) and the Fixing America's Surface Transportation (FAST) Act (Pub. L. 114-94) transformed the Federal-aid highway program by establishing performance management requirements. On November 14, 2021, President Biden signed the BIL, enacted as the Infrastructure Investment and Jobs Act (Pub. L. 117-58), which continued the performance management requirements. Such requirements aim to increase accountability and transparency and facilitate efficient investment of Federal transportation funds through a focus on performance outcomes for seven national transportation goals concerning safety, infrastructure condition, congestion reduction, system reliability, freight movement and economic vitality, environmental sustainability, and reduced project delivery delays. See 23 U.S.C. 150(b). Through performance management, recipients of Federal-aid highway funds make transportation investments to achieve performance targets that make progress toward those national goals. The FHWA's performance management regulations created a framework to more effectively evaluate and report on the Nation's surface transportation performance. The FHWA's performance management requirements are codified in 23 CFR part 490.
Most relevant to the proposed rulemaking, the performance management framework requires State departments of transportation (State DOT) to biennially establish performance targets related to the National Highway Performance Program (NHPP) and National Highway Freight Program (NHFP) Congestion Mitigation and Air Quality Improvement Program. State DOTs then report progress towards those targets biennially per § 490.107.
In addition, FHWA conducts a biennial assessment of the State DOT's progress toward the achievement of individual NHPP and NHFP targets. This assessment is commonly called the significant progress determination. If a State DOT fails to make significant progress toward the achievement of an applicable target, additional reporting to document how progress will be made is required for all targets in the measure area.
For the freight measure only, as part of the biennial reporting, the State DOT also provides the location of truck freight bottlenecks within the State and reports on progress toward addressing the congestion at these locations. The regulation allows the State DOT to use their State Freight Plan prepared under 49 U.S.C. 70202 to meet these requirements when it is less than 2 years old.
As part the State DOT's biennial reporting, the State DOT can provide an explanation of how any extenuating circumstances listed in the regulation prevented it from making significant progress toward the achievement of an individual target. The State DOT must also quantify the impacts on the condition/performance that resulted from the extenuating circumstance(s). The FHWA expects that the application of extenuating circumstances would occur for unique events and would not be regularly applied. If FHWA accepts the State DOT's explanation, FHWA classifies the progress toward achieving the relevant target(s) as “progress not determined,” and those targets are excluded from the requirement to make significant progress toward the achievement of applicable targets.
In addition, for the Interstate System pavement condition measures, §§ 490.105(c)(1) and (c)(2), State DOTs are allowed to have no more than 5.0
The five safety measures listed at § 490.205 have a slightly different target setting and reporting framework than the other TPM measures in 23 CFR part 490. For the five safety measures, each performance measure is based on a 5-year rolling average, and targets are established annually consistent with § 490.209. The State DOT targets are to be identical to the targets established by the State Highway Safety Office for common performance measures reported in the State's Highway Safety Plan, subject to the requirements of 23 U.S.C. 402(k)(4), and as coordinated through the State Strategic Highway Safety Plan. The targets established by the State DOT are reported to FHWA in the State's Highway Safety Improvement Program (HSIP) annual report in accordance with 23 CFR part 924. As with the other measures, FHWA assesses the State DOT's progress toward the achievement of its safety targets. This assessment is commonly called the significant progress determination. If a State DOT fails to meet or make significant progress toward the achievement of four of the five safety targets, the State DOT must comply with 23 U.S.C. 148(i) for the subsequent three fiscal years. This means that State DOTs would be submitting a single HSIP Implementation Plan covering the next three fiscal years and must use their obligation authority equal to the apportionment of the State for the prior year for the next three fiscal years only for highway safety improvement projects. The FHWA invites comments on this proposed approach.
The FHWA understands that the timing of this rulemaking will impact performance cycle data submission. The FHWA will develop phase-in timeframe compliance dates and other implementation guidance at the conclusion of the rulemaking process. Under Subpart B, FHWA proposes to align the target setting performance cycle with NHTSA's final rule
If this new regulatory language goes into effect, the next triennial cycle under these proposed revised requirements is expected to be for the HSIP safety performance targets reported in August 2024 representing safety performance for calendar years 2025 through 2027, based on a 3-year average. However, this cycle will not align with NHTSA's current triennial cycle (2024-2026) for the safety performance targets submitted by State HSOs in their triennial Highway Safety Plans (3HSP) in July 2023. As a result, FHWA is seeking comment on how to approach aligning FHWA's triennial cycle with NHTSA's triennial cycle.
One option would be for FHWA to require States to align with NHTSA's 2024-2026 triennial cycle in their August 2024 HSIP Annual Report. This would require States to retroactively report 2024 data for their first triennial cycle (2024-2026) in their August 2024 HSIP Annual Report. Under this option, States could choose to submit the established targets that SHSOs submitted to NHTSA in July 2023, or work with the SHSOs to reset the triennial targets so it is identical for the common safety performance measures.
Another option for consideration would be to waive the requirement for identical performance targets between NHTSA and FHWA programs for CY 2025 and CY 2026 and have the State DOTs continue to submit annual safety performance targets based on 5-year averages (as per the current regulation) in their HSIP Annual Reports until NHTSA's next triennial cycle (2027-2029). This option would require State DOTs to first report identical targets for the common safety performance measures in their August 2026 HSIP Annual Report for CY 2027 through 2029, based on a 3-year average, which would align with the safety performance targets submitted by State HSOs in the 3 HSP in July 2026. The FHWA specifically requests comments regarding this topic.
The FHWA proposes substantive changes to three subparts of 23 CFR part 490: Subpart A—General Information, which applies to all of the regulations throughout part 490; Subpart B—National Performance Management Measures for the Highway Safety Improvement Program; and Subpart E—National Performance Management Measures to Assess Performance of the National Highway System. This section of the preamble describes the proposed changes and the reasons behind them. The FHWA has also proposed several non-substantive changes throughout the regulatory text to remove the phrase “and/or” and replace it with “and” or “or”, as appropriate, to provide increased clarity. The proposed rule would apply to the 50 States, the District of Columbia, and Puerto Rico consistent with the definition of the term “State” in 23 U.S.C. 101(a). The FHWA has included questions to the public on issues where comments may be particularly useful in facilitating implementation of the proposals.
The FHWA proposes to add § 490.103(h) to allow a temporary extension of any date within the part for good cause, unless an extension of that date is prohibited by law. The FHWA desires to have, and be able to exercise, flexibility when unforeseen circumstances arise that would cause undue hardship on the State DOTs or Metropolitan Planning Organizations (MPO) when complying with the provisions in this part.
The FHWA proposes to revise paragraphs of § 490.107 to align with section 21104(c) of the BIL, which amended the State Freight Plan requirements of 49 U.S.C. 70202(e). State DOTs are now required to update their State Freight Plans every 4 years, as opposed to the 5 years that were required by the FAST Act. Congress made this change through BIL to better align the timing of State Freight Plan updates with other State transportation planning efforts, including the TPM Program established under MAP-21. Since BIL created a 4-year update cycle for State Freight Plans, there will now be an updated State Freight Plan within each 4-year TPM reporting cycle.
The FHWA is proposing to remove the text in §§ 490.107(b)(1)(ii)(E) and 490.107(b)(2)(ii)(D) that requires a State
In § 490.107(b)(2)(ii)(D), for the Mid and Full Performance Period Progress Report, if the State Freight Plan has not been updated in the last 2 years, “then an updated analysis of congestion at truck freight bottlenecks must be completed.” Some State DOTs misinterpreted this as requiring the submission of an updated bottleneck list. The FHWA is proposing revisions to clarify FHWA's expectation State DOTs will identify bottlenecks at the baseline and will provide a discussion of progress toward addressing congestion at those points in the Mid and Full Performance Period Progress Reports. The proposed change is intended to clarify expectations but not change them.
In addition, as part of the Mid and Full Performance Period Progress Reports, the State DOT must discuss their efforts to address congestion at truck freight bottlenecks and the State Freight Plan may serve as the basis for discussing how congestion has been addressed at truck freight bottlenecks. The FHWA is proposing to add language to § 490.107(b)(2)(ii)(D) to clarify that the State DOT needs to update the information from the previous State Biennial Performance Report. If the information in the previous State Biennial Performance Report was from the current State Freight Plan, this information needs to be reviewed and updated as necessary with the next State Biennial Performance Report. This clarification is consistent with FHWA's existing guidance.
The FHWA has also proposed a technical correction to § 490.107(b)(2)(ii)(D) and 490.107(b)(3)(ii)(D). The FHWA is proposing to change “. . . paragraph (b)(1)(ii)(F) . . .” to “. . . paragraph (b)(1)(ii)(E) . . .” in both locations.
The FHWA proposes to add specificity to the paragraph reference in § 490.109(e)(4)(ii) from (d)(1) to (d)(1)(i), and revise the paragraph reference in § 490.109(e)(4)(iv) from (d)(3) to (d)(1)(iii). These are technical corrections to the cross references and do not change the intent of the regulations.
The FHWA proposes to correct the paragraph reference in § 490.109(e)(4)(iii) from (d)(2) to (d)(1)(ii), and correct § 490.313(b)(4)(i) by changing it to § 490.313(b)(4)(ii) to align with the changes proposed to § 490.313(b)(4). These are technical corrections that are not intended to change the requirements in § 490.109(e)(4)(iii).
The FHWA proposes to revise § 490.109(e)(4)(v) to clarify FHWA's approach for determining significant progress when reported data for baseline condition/performance is determined “insufficient” in the year in which the Baseline Performance Period Report is due to FHWA. This approach was previously documented in the preamble for the 2017 Final Rule for the pavement and bridge performance measures.
The FHWA proposes to amend § 490.109 by adding a new paragraph (e)(5)(ii)(D) providing that an applicable extenuating circumstance includes a presidentially declared national emergency, which would cover events such as national public health emergencies. With various governmental units and agencies possibly having the ability to declare disasters, FHWA proposes to clarify in § 490.109 that natural or man-made disasters must be declared under the Robert T. Stafford Disaster Relief and Emergency Assistance Act. The inclusion of this regulatory language is necessary to enable State DOTs to request relief from the requirements for not making significant progress toward achieving their performance targets because of extenuating circumstances due to the impacts of a presidentially declared national emergency. This new extenuating circumstance would apply to progress requirements under the NHPP and the NHFP. As with the current allowance for existing extenuating circumstances, State DOTs would be required to provide sufficient evidence showing how the adverse impacts limited their ability to meet performance expectations in order to receive regulatory relief.
When originally drafted, a national public health emergency was not contemplated. The proposed addition of national emergency is intended to address this gap but is not expected to substantially change the types of allowable extenuating circumstances, nor is it expected to substantially increase the number of times extenuating circumstances are applied. Thus, FHWA has estimated this would result in a nominal reduction in burden.
It is possible that the extenuating circumstances listed in § 490.109(e)(5) may also impact a State DOT's ability to supply sufficient data or information, as required in § 490.109(e)(4). The FHWA has not proposed additional language to specify that a national emergency or any other extenuating circumstance will be considered in relation to FHWA's significant progress determination due to insufficient data or information, because it is already addressed by § 490.109(e)(5)(ii).
The FHWA is proposing to revise terms in § 490.109(f)(2)(iii)(A) to align with the HPMS as reflected in the updated HPMS Field Manual and incorporated by reference as part of this NPRM. See the section-by-section discussion in § 490.111 for further information on the proposed changes related to HPMS.
The FHWA is proposing to restructure this section to conform with new Office of the Federal Register formatting requirements The FHWA is proposing updating the HPMS Field Manual that is currently incorporated by reference in § 490.111(b)(1). and included in the docket for this NPRM. The FHWA's HPMS software was updated to version 9, and the associated database fields that impact TPM were modified to address necessary changes identified in the 2018 HPMS Reassessment. The HPMS Field Manual was similarly updated to improve readability and reflect changes made to the HPMS software, processes, and table structures, as well as to data items, estimate types, and metadata. The
The proposed changes within the regulation to align with the terms in the incorporated HPMS Field Manual are:
Inventory data elements—This summary term was removed from the HPMS Field Manual. Where used in the regulation, FHWA is proposing replacing it with the specific data elements it represented.
The FHWA is proposing to remove the American Association of State Highway and Transportation Officials (AASHTO) Standard R48-10 (2013), Standard Specification for Transportation Materials and Methods of Sampling and Testing, Standard Practice for Determining Rut Depth in Pavements, 2014, 34th/2014 edition, in § 490.111(c)(3) since it has been withdrawn by AASHTO. The HPMS Field Manual addresses automated rut data collection methods so no additional AASHTO Standards are needed at this time.
The FHWA is proposing to update the AASHTO Standard in § 409.111(c)(4) from R36-13 to R36-21, Standard Specification for Transportation Materials and Methods of Sampling and Testing, Standard Practice for Evaluating Faulting of Concrete Pavements. This update to the Standard retains the two methods for measuring and calculating faulting using automated measurement devices. The most notable change to the new Standard is the incorporation of an acceptable third method for calculation of faulting using 3D techniques. This Standard is less restrictive than the original. A corresponding change is proposed in § 490.309(b)(3)(vii).
When FHWA published its first Transportation Performance Management Final Rule on March 15, 2016, at 81 FR 13882, it incorporated by reference at § 490.111(d) the ANSI D16.1-2007, Manual on Classification of Motor Vehicle Traffic Accidents (7th edition, approved August 2, 2007), and at § 490.111(e) the DOT's DOT HS 811 631, Model Minimum Uniform Crash Criteria (MMUCC) Guideline, (4th edition, July 2012). With the publication of the subsequent TPM rules on January 18, 2017, at 82 FR 5886 and 82 FR 5971, § 490.111(d) and (e) were inadvertently left out of the revised iterations of this section; however, there was no indication of the Agency's intent to remove the incorporation by reference of either publication given that the references remain in other sections of subpart B. The FHWA proposes to restore the ANSI and DOT paragraphs to reflect the incorporation of the publications, while updating ANSI D.16-2007 to ANSI D.16-2017 and the MMUCC to the 6th edition, which State DOTs are required to use for the definition for Suspected Serious Injury. Both documents are available for review on the docket for this rulemaking.
The FHWA proposes to revise five definitions to provide clarity and consistency for each as related to the regulation and to remove one definition that is no longer necessary. The purpose of the revisions is to clarify the terms and definitions.
The FHWA proposes to revise the term for “5-year rolling average” to “3-year average” and to revise the definition to align with the proposed shift to triennial (every 3 years) performance targets. The FHWA proposes to remove the term “rolling” to align with the proposed shift from establishing performance targets every year to establishing performance targets every 3 years to cover a 3-year period.
The FHWA proposes to establish a definition for `baseline safety performance' to allow for a single term that can be used consistently in 23 CFR part 490 subpart B. The proposed term is consistent with the term used in 23 CFR 490.213(d), the definition is consistent with how the concept is currently applied in 23 CFR 490.211(c)(2)(ii), and would not change the requirements of the existing regulation.
The FHWA proposes to revise the definition for “Fatality Analysis Reporting System (FARS)” to align with the NHTSA definition in 23 CFR 1300.3.
The FHWA proposes to revise the definition for “Number of non-motorized fatalities” to remove the attribute code numbers and to further clarify the person types under “Persons on Personal Conveyances” to align with the coding change that was made to the person attribute code in the Fatality Analysis Reporting System (FARS).
The FHWA proposes a minor technical edit to the definition for “Number of non-motorized serious injuries” to correct the spelling of “pedalcyclist” in the definition.
The FHWA proposes to revise the definition for “Number of serious injuries” to remove the reference to KABCO and the use of conversion tables. This requirement is no longer applicable as the KABCO scale is no longer used for this purpose.
The FHWA proposes to revise the definition for “serious injuries” to remove the references to KABCO and conversion tables, as well as the reference to April 15, 2019. This requirement is no longer applicable as the KABCO scale is no longer used for this purpose.
The FHWA proposes to remove the term and definition for “KABCO” to align with the proposed changes that no longer require the use of the term.
The FHWA proposes to revise § 490.207(b) to replace “5-year rolling average” with “3-year average” to align with the proposed shift to establish performance targets every 3 years. In addition, in § 490.207(b)(1) through (5), FHWA proposes to change each instance of the term “five” to “three” to correspond with the changes to the years and calculations for changing to a 3-year average. The FHWA proposes to clarify each instance of “target” to “performance target” for consistency and clarity. This revision also occurs throughout §§ 490.207, 490.209, 490.211, and 490.213, but only this first instance is being documented here as it is a minor technical edit being made throughout the regulation. These proposed changes are expected to be a minimal burden to the State DOTs as it reduces the number of years of data required from 5 years to 3 years.
The FHWA proposes to remove § 490.207(c) as the requirement for State DOTs to report serious injuries by the April 15, 2019, deadline has passed, and the KABCO scale is no longer used for this purpose.
The FHWA proposes to revise § 490.209(a) so State DOTs would shift from establishing performance targets
The FHWA proposes to revise § 490.209(a)(2) to reflect the proposed change to triennial performance targets, as well as add language that specifies when the first triennial performance target shall be established. In addition, FHWA proposes to change reporting from the “HSIP annual report” to “reported to the FHWA.” This proposed change is expected to be of minimal burden to State DOTs as it reduces the requirement from reporting annually to triennially.
The FHWA proposes to remove § 490.209(a)(4) and replace it with a new requirement for State DOTs to establish performance targets that “demonstrate constant or improved performance from the baseline safety performance.” This proposed requirement addresses the recent increase in fatalities by requiring performance targets to offer realistic expectations toward achieving the long-term goal of zero roadway fatalities, which is consistent with DOT's NRSS. This requirement also aligns with NHTSA's requirement under section 24102 of the BIL (23 U.S.C. 402(k)(4)(A)(ii)) that performance targets submitted as part of the triennial HSP demonstrate constant or improved performance. Although BIL did not make a similar amendment to the performance management requirements in 23 U.S.C. 148, there is no indication that Congress was attempting to undermine or change FHWA's and NHTSA's regulations that require identical performance targets for the three common measures. Likewise, there is nothing in Title 23 that prohibits FHWA from adopting the same “constant or improved performance” standard required by section 24102. Given the national crisis of fatalities on our roadways, FHWA believes it is good public policy to have the same requirement for its Safety Performance Management Program. The NHTSA has implemented this provision through a final rule published February 6, 2023, at 88 FR 7780. This proposed change is necessary as it aligns with the State DOTs' requirement to report identical performance targets for three common measures between HSIP and triennial HSP. This revision may impact the State DOTs that have set increasing performance targets in prior years as it may result in a shift in the methodology used to establish performance targets. However, requiring identical performance targets is consistent with the national safety goals Congress established for the Federal-aid highway program and NHTSA's highway safety program: To reduce traffic fatalities and serious injuries (in the case of FHWA) and to reduce traffic accidents and the resulting deaths, injuries, and property damage (in the case of NHTSA) (23 U.S.C. 150(b)(1) and 23 U.S.C. 402(a)). Furthermore, allowing a State to establish two different safety performance targets for common performance measures would be inefficient and could lead to public confusion. Separate performance targets could also be a burden on States by possibly requiring the collecting and reporting of two different sets of data for common performance measures in an HSIP and triennial HSP.
The FHWA proposes to remove § 490.209(a)(5), as the portion of this requirement related to use of the KABCO system in lieu of compliance with MMUCC is no longer applicable. In addition, the portion of this section that relates to reporting has been updated in § 490.213.
The FHWA proposes to shift § 490.209(a)(6) to § 490.209(a)(5) and revise § 490.209(a)(6) to change “submitted in the HSIP annual report” to “submitted to the FHWA” to align with paragraph (a)(2). The FHWA is not expecting State DOT performance targets to change for a given triennial cycle once submitted to FHWA. This is consistent with FHWA's current practice, in which safety performance targets cannot be changed once submitted to FHWA.
The FHWA proposes to revise § 490.209(b)(1) to remove reference to “HSIP annual report” to align with § 490.209(a)(2).
The FHWA proposes to remove § 490.209(b)(4) as this requirement is addressed under reporting in § 490.213.
The FHWA proposes to revise § 490.209(c) to add the word “triennially” for establishing performance targets for MPOs to align with the shift from annual to every 3 years.
The FHWA proposes to revise § 490.209(c)(1) to change “HSIP annual report” to “the FHWA” to align with the update to § 490.209(a)(2).
The FHWA proposes to revise § 490.209(c)(4)(i) to remove the term “safety” target and replace it with “performance” target for clarity and consistency.
The FHWA proposes to revise § 490.209(c)(4)(ii) to remove the term “safety” target and replace it with “performance” target for clarity and consistency and to add the language “demonstrate constant or improved performance” to align with § 490.209(a)(4).
The FHWA proposes to revise § 490.211(b) to add the term “annual” to “HSIP report” for clarity and consistency and to add the word “prepared” before “in accordance with.”
The FHWA proposes to revise § 490.211(c)(2) to use the newly defined “baseline safety performance” in place of “3-year average data for the performance measure for the year prior to the establishment of the State's performance target.” This would not change the existing process.
The FHWA proposes to revise § 490.211(d) to add the number “3” prior to “fiscal years” to align with the shift to triennial performance targets.
The FHWA proposes to revise § 490.211(e) to change “first evaluate” to “determine” and to change “after the calendar year following the year” to “following the last calendar year” and change “annual” to “triennially.” These proposed changes align with the revisions under § 490.209(a)(2).
The FHWA proposes to add a new § 490.211(f) to address the phased in implementation of the requirements that will enable the performance targets established for 2023 to continue to be assessed to determine met or made significant progress by 2025.
The FHWA proposes to add a new § 490.211(g) to address insufficient data or information. The purpose of this requirement is to inform States that if they are not able to provide the necessary data in the HSIP annual report for the purposes of the performance target assessment that they will be deemed to have not met or made significant progress.
The FHWA proposes to add a new § 490.211(h) to consider extenuating circumstances in the assessment of progress toward met or made significant progress of triennial performance targets. In addition, FHWA proposes to add § 490.211(h)(1) to clarify that FHWA will classify the assessment of progress toward the triennial performance target as “progress not determined” if the State DOT has provided an explanation of the extenuating circumstances beyond the control of the State DOT that prevented it from meeting or making significant progress and the State DOT has quantified the impacts on the performance that resulted from the circumstances to include: (i) Natural or man-made disasters that caused delay in data collection; (ii) [Reserved] (iii) New law or regulation directing State DOTs to change metric or measure calculation; or (iv) Presidentially declared national emergency that impacts the collection or submittal of data. The circumstances added are intended to mirror those in § 490.109(e)(5)(i). With various governmental units and agencies possibly having the ability to declare disasters, FHWA proposes to clarify in § 490.211 that natural or man-made disasters must be declared under the Robert T. Stafford Disaster Relief and Emergency Assistance Act. In order to keep most of the section numbering consistent with § 490.109(e)(5)(i), FHWA is proposing to reserve § 490.211(h)(1)(ii) since FHWA does not provide any data associated with the safety performance measure.
The FHWA also proposes to add a new § 490.211(h)(2) that explains that if the State DOTs explanation is accepted by FHWA, then the progress toward achieving the relevant performance targets will be classified as “progress not determined.” These proposed changes are not expected to be a burden to the State DOTs; however, there may be a moderate impact on the burden to any State DOT that decides to pursue the option to provide documentation to quantify the impact resulting from the extenuating circumstance.
The FHWA proposes to revise the title of § 490.213 to add the word “performance” before “targets” for clarity and consistency.
The FHWA proposes to revise § 490.213(a) to remove “in the State's HSIP annual report” and specify the first due date as “[Date to be inserted], and then triennially thereafter.” The purpose of this change is to align with the proposed change to shift to triennial performance targets. The FHWA will reflect a specific first due date that will align with the appropriate performance cycle during the rulemaking process.
The FHWA proposes to add a new § 490.213(b) to specify that State DOTs shall report on actual performance annually in the HSIP annual report and the minimum amount of data that is required. The purpose of this change is to move this information that was originally under § 490.209 for the establishment of performance targets to reporting of performance targets in the HSIP. The FHWA proposes to also shift the original paragraphs (b) and (c) to now be (c) and (d).
The FHWA proposes to revise old paragraph (b) to now be (c) and to change “annually” to “triennially” to align with the proposed shift to establish performance targets every 3 years.
The FHWA proposes to revise old paragraph (c) to now be (d) and delete the word “safety” from “safety performance” for clarity and consistency.
The FHWA is proposing revisions to § 490.309(a) to remove `inventory data elements' here, as well as from all 23 CFR part 490, since that term and associated grouping is not in the incorporated HPMS Field Manual. In addition, FHWA is proposing a technical correction to include underscores in `Through_Lanes,' `Surface_Type,' and `Structure_Type,' consistent with other parts of the regulation. The FHWA also is proposing corrections to § 490.309(c) to include underscores in the same terms. These corrections are not expected to change implementation of the associated requirements.
The FHWA is proposing amending §§ 490.309(b)(1)(i)(B), (b)(2)(i)(B), and (b)(2)(ii)(B) to clarify that when the right most lane is not readily accessible due to a listed issue, then the adjacent lane is to be used; not any open lane. This will align the regulation with existing guidance.
The FHWA is proposing to amend §§ 490.309(b)(1)(iv)(A) and (b)(2)(iii)(A) so the numbers `0 to 5' would be shown to the tenths decimal place, `0.1 to 5.0', to be consistent with how the data is entered in HPMS.
The FHWA is proposing to revise § 490.309(b)(3)(vi) and remove (b)(3)(vi)(A) and (B). The FHWA is proposing to remove § 490.309(b)(3)(vi)(A) because AASHTO has withdrawn Standard R48 that provided guidance for this type of data collection. As a result, States will be required to use the methods identified in the HPMS Field Manual when collecting rutting data on the National Highway System (NHS).
The FHWA is proposing to revise § 490.309(b)(3)(vii) to change the incorporated AASHTO Standard from `R36-13' to `R36-21.' The AASHTO Standard R36-21 is an update to Standard R36-13, which retains the two methods for measuring and calculating faulting using automated measurement devices. The major change from the old standard to the new standard is the incorporation of an acceptable third method for calculation of faulting.
The FHWA is proposing changes to § 490.311(a) to remove `inventory data elements' since that term and associated grouping is not in the proposed HPMS Field Manual.
The FHWA is proposing to amend § 490.311(b)(5)(ii) so the numbers `0 to 5' would be shown to the tenths decimal place, `0.1 to 5.0', to be consistent with how the data is entered in HPMS.
The FHWA is proposing to revise the HPMS field names in § 490.311(c)(3)(i), (c)(3)(ii), and (c)(3)(iii) so they are consistent with the updated HPMS system, and the HPMS Field Manual.. The FHWA also proposes to add specificity to clarify that the `BeginDate' shall be reported as required in the HPMS Field Manual. The term changes proposed are:
These changes are to provide consistency with the terms used in the incorporated HPMS Field Manual and are not expected to change the burden associated with complying with the regulations.
The FHWA proposes to revise §§ 490.311(d), (d)(1), (d)(2), and (d)(3) to change the term `inventory data elements' to `data items,' and change `inventory data items' to `data items.' These changes are needed to be consistent with the incorporated HPMS Field Manual, which no longer uses these terms.
The FHWA is proposing changes to § 490.313(b)(4) and its paragraphs to clarify the intended application of the regulation by rewording and reorganizing the text and providing cross references to existing requirements for data submittal dates. No new requirements or processes are proposed, and the clarifications are consistent with FHWA's existing guidance related to missing, invalid, or unresolved data. The FHWA also proposes updating terms in §§ 490.313(b)(v)(i) through (vii) to align with those used in the incorporated HPMS Field Manual, and correcting reference numbering related to § 490.109(d) in § 490.313(b)(v). Together these changes are not expected to change the implementation of the requirements.
In § 490.313(f)(2) through (5), FHWA is proposing to remove the underscore from the terms “End_Point” and “Begin_Point” so it is consistent with the fields in the incorporated HPMS Field Manual.
The FHWA proposes to amend § 490.317(c) by adding a new § 490.317(c)(1) providing that FHWA can use the previous years' determination of compliance with the minimum condition requirements in § 490.315(a) or § 490.315(b) and 23 U.S.C. 119(f)(1) if FHWA determines a State DOT is not in compliance due to an extenuating circumstance listed in § 490.109(e)(5) related to the collection or submittal of data. Accurate data is required to make the compliance determination, and FHWA cannot waive the determination. During the COVID-19 pandemic, FHWA identified that it was possible that some State DOTs would be unable to collect pavement condition data because of COVID-19 related social distancing requirements. The FHWA is proposing to add § 490.317(c)(1) to allow FHWA to consider extenuating circumstances in their determination when sufficient data is not provided. State DOTs would need to notify FHWA of any applicable extenuating circumstances it would like FHWA to consider by June 15 of each year, as proposed in § 490.317(c)(2).
This additional flexibility would allow State DOTs to provide an explanation of the conditions beyond their control that impeded their ability to submit the data needed to calculate the pavement performance measures and determine minimum condition. This action will allow State DOTs to cite one of the extenuating circumstances in § 490.109(e)(5) and explain how it impacted their ability to collect or submit data. As with the use of extenuating circumstances in the significant progress determination, there would need to be sufficient evidence showing how the adverse impacts limited a State DOT's ability to meet the data collection and submittal requirements. If a State DOT provides an acceptable explanation of extenuating circumstances by June 15, FHWA would apply the previous year's determination to the determination for the current year.
Including this additional flexibility as part of FHWA's compliance determination for 23 U.S.C. 119(f)(1) would align with the intent of extenuating circumstances and its application within the significant progress determination process. The FHWA has determined this is an appropriate and necessary action but does not anticipate this to be used in the near-term.
The FHWA is not proposing a similar amendment to § 490.413, which relates to penalties for not maintaining minimum bridge conditions. Bridges are inspected every 2 years. If a bridge is not inspected due to an unforeseen issue, the existing National Bridge Inspection (NBI) data is used for FHWA's determination of compliance with 23 U.S.C. 119(f)(2). In addition, the penalty for not maintaining minimum bridge condition, described in § 490.413, is assessed using data for the previous 3 years. These items provide flexibilities not available to the Interstate System pavement condition measures.
Section 490.319(c)(1) describes the minimum methods and processes the State DOTs shall include in their Data Quality Management Programs. The FHWA proposes to revise § 490.319(c)(1)(ii) to strike the word “manual” from the requirement to certify persons conducting data collection. A certification process was required in the original rule for the equipment and for individuals doing manual data collection but omitted equipment operators and other persons working in data collection. This change extends the certification to all persons conducting data collection including equipment operators. Network level data collection is done almost completely using automated equipment. Since the process for data collection is complex and the equipment is costly, every State already has process for training operators and other persons working in data collection even though there has not been a requirement to do so. A minor update to the Data Quality Management Plan for the State may be needed to describe the training program and certification process if it is not already in the Plan. The FHWA seeks comment from any State DOTs that do not already require training for those collecting data and operating associated equipment.
The FHWA is proposing to incorporate by reference the following standards:
The FHWA will incorporate by reference an updated version of the HPMS Field Manual. The proposed HPMS Field Manual includes detailed information on technical procedures to be used as reference by those collecting and reporting data for the performance measures. The FHWA's HPMS software was updated to version 9, and the associated database fields that impact TPM were modified to address necessary changes. The updated HPMS Field Manual is included on the docket for this rulemaking and will be made available on the FHWA website once adopted.
The FHWA will incorporate by reference AASHTO Standard R36-21, Standard Practice for Evaluating Faulting of Concrete Pavements, 41st edition, 2021. This Standard provides a consistent means for identifying and reporting concrete pavement faults. The AASHTO standard is proposed because it is considered a best practice, specifically by State DOTs, and is recognized worldwide. This document is available at
The FHWA will incorporate by reference ANSI D.16-2017, Manual on Classification of Motor Vehicle Traffic Crashes, eight edition, approved December 18, 2017. The primary purpose of ANSI D.16-2017 is to promote uniformity and comparability of motor vehicle crash statistics in Federal, State, and local jurisdictions. The uniformity of reporting that results from this standard facilitates development of data on crashes in and
The FHWA will incorporate by reference DOT HS 813 525 (“MMUCC”), Model Minimum Uniform Crash Criteria Guideline, 6th edition, 2024.. The MMUCC can help States generate the data necessary to quickly gain traffic safety insights. The guide is available at
The documents that FHWA is incorporating by reference are reasonably available to interested parties, primarily State DOTs, local agencies, and Tribal governments carrying out Federal-aid highway projects, and federally required data reporting. The incorporated HPMS Field Manual represents the reporting requirements of the HPMS system. The AASHTO manual, MMUCC, and Manual on Classification of Motor Vehicle Traffic Accidents represent the most recent refinements that professional organizations have formally accepted and are currently in use by the transportation industry. The documents incorporated by reference are available on the docket of this rulemaking and at the sources identified in the regulatory text below. The specific standards are discussed in greater detail elsewhere in this preamble.
• The MAP-21 legislation required FHWA to develop a uniform method for States to measure and report pavement conditions indicating investment needs and mobility on the Interstate and non-Interstate NHS. This methodology is contained in § 490.313 and uses the HPMS for reporting pavement conditions. After experiencing the first 5 years of collecting and reporting this information, FHWA invites comments on the effectiveness of the methodology for the intended purposes and suggestions to improve the required measurement and reporting.
• To minimize the amount of missing pavement data reported to HPMS, the current regulations direct States to collect condition information from another lane when the right most lane is closed due to construction, closure, excessive congestion, or other events impacting access. Some States have indicated difficulties collecting condition information in areas under construction due to bridge replacements, detours, or other circumstances. The FHWA invites comments on how to best collect and report the required information in these challenging situations.
• For the purpose of carrying out 23 U.S.C. 148, the Secretary is required to establish measures for States to use to assess (A) serious injuries and fatalities per vehicle mile traveled; and (B) the number of serious injuries and fatalities (23 U.S.C. 150(c)(4)). The FHWA is seeking comments on possible alternative safety performance measures that could be used to assess safety performance related to the HSIP. These performance measures should be directly related to the State's HSIP and help provide quantifiable evidence toward progress of safety performance. These performance measures may evaluate the outputs (quantitative and indicate the level of activity or effort) or outcomes (provide an indication of effectiveness) resulting in the implementation of the HSIP. The FHWA also seeks comment on whether FHWA should maintain the existing safety performance measures, replace the existing safety performance measures with alternative safety performance measures, or use some combination of both to assess future safety performance.
• The existing TPM measures for pavement and bridge condition in 23 U.S.C. 150(c)(3) are limited to the Interstate and NHS. However, there is also considerable need on the non-NHS system for infrastructure improvements. For example, approximately 90 percent of the bridges in poor condition in the 2022 National Bridge Inventory dataset are non-NHS bridges. Would State DOTs and MPOs benefit from the creation of national performance measures for the non-NHS system? For non-NHS bridges, condition data is already collected and reported annually to FHWA and can be used to set targets and report on performance. For non-NHS pavement performance, FHWA collects condition data on a sample of these roadways in each State. What would be reasonable measures, target setting timelines, data collection methods, reporting frequency, and reporting methods for any non-NHS measures? If such national performance measures are created, what would be needed to collect, report, and analyze non-NHS data and implement such a program?
The FHWA has considered the impacts of this proposed rule under E.O. 12866 (58 FR 5173, Oct. 4, 1993), Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review and E.O. 14094 (88 FR 21879, April 6, 2023), Modernizing Regulatory Review, and DOT's regulatory policies and procedures. The Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) has determined that the proposed rule is not a significant regulatory action within the meaning of E.O. 12866. Accordingly, OMB has not reviewed it under that E.O.
It is anticipated that the proposed rule would not be economically significant for purposes of E.O. 12866. The proposed rule would not have an annual effect on the economy of $200 million or more. The proposed rule would not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or Tribal governments or communities. In addition, the proposed changes would not interfere with any action taken or planned by another Agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs.
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), FHWA has evaluated the effects of this proposed rule on small entities and has determined that it is not anticipated to have a significant economic impact on a substantial number of small entities. For FHWA's significant progress determination in § 490.109(e) and for the minimum condition requirements for Interstate pavements in § 490.317, the proposed rule would affect State governments, but not MPOs since MPOs are not subject to these requirements. State governments are not included in the definition of small entity set forth in 5 U.S.C. 601. For FHWA's proposed triennial safety performance reporting, both MPOs and State DOTs would be affected, but the proposed changes are expected to reduce overall burden. Therefore, FHWA certifies that the proposed rule
This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This proposed rule would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $168 million or more in any one year (2 U.S.C. 1532). In addition, the definition of “Federal Mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or Tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility.
This proposed rule has been analyzed in accordance with the principles and criteria contained in E.O. 13132, and FHWA has determined that this proposed rule would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA also has determined that this proposed rule would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
This proposed rule expands upon existing flexibilities that are implemented as part of the overarching TPM regulations in 23 CFR part 490, which includes State DOT reporting on performance biennially. The collection of biennial report information in support of § 490.107, including the State DOT's documentation of any applicable extenuating circumstances described in § 490.105(e), is covered by OMB Control No. 2125-0656.
The proposed rule would change the reporting on safety performance targets from annual to triennial. Targets and performance would be reported on in the HSIP annual report. The collection of information in support of § 490.213 is covered by OMB Control No 2125-0025.
The FHWA has analyzed this proposed rule pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
The FHWA has analyzed this proposed rule in accordance with the principles and criteria contained in E.O. 13175, “Consultation and Coordination with Indian Tribal Governments.” The proposed rule would implement additional flexibilities in 23 CFR part 490 related to FHWA determination of significant progress toward State DOT NHPP and NHFP measure, and FHWA's determination of State DOT's compliance with Interstate pavement minimum conditions. The requirements of 23 CFR part 490 apply to States that receive Title 23 Federal-aid highway funds, and it would not have substantial direct effects on one or more Indian Tribes, would not impose substantial direct compliance costs on Indian Tribal governments, and would not preempt Tribal laws. Accordingly, the funding and consultation requirements of E.O. 13175 do not apply and a Tribal summary impact statement is not required.
The E.O. 12898 requires that each Federal Agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high, and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. The FHWA has determined that this proposed rule does not raise any environmental justice issues.
A RIN is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.
Bridges, Highway safety, Highways and roads, Incorporation by reference, Reporting and recordkeeping requirements.
Issued under authority delegated in 49 CFR 1.81 and 1.85.
In consideration of the foregoing, FHWA proposes to amend 23 CFR part 490, as set forth below:
23 U.S.C. 134, 135, 148, and 150; 49 CFR 1.85.
The additions read as follows:
(h)
(b) * * *
(1) * * *
(ii) * * *
(E)
(2) * * *
(ii) * * *
(D)
(3) * * *
(ii) * * *
(D)
The revisions and addition read as follows:
(e) * * *
(4)
(ii) The data contained in HPMS do not meet the requirements under § 490.313(b)(4)(i) by the data extraction date specified in paragraph (d)(1)(i) of this section for the each of the Interstate System pavement condition measures in § 490.105(c)(1);
(iii) The data contained in HPMS do not meet the requirements under § 490.313(b)(4)(ii) by the data extraction date specified in paragraph (d)(1)(ii) of this section for the each of the non-Interstate NHS pavement condition measures in § 490.105(c)(2);
(iv) A State DOT reported data are not cleared in the NBI by the data extraction date specified in paragraph (d)(1)(iii) of this section for the each of the NHS bridge condition measures in § 490.105(c)(3);
(v) If a State DOT's data is determined insufficient, as described in paragraphs (e)(4)(ii) through (iv) of this section, in the year in which the Baseline Period Performance Report is due to FHWA for a measure in § 490.105(c)(1) through (3), the FHWA will determine the State DOT did not satisfy the criterion in paragraph (e)(2)(i) of this section, and FHWA will only use the criterion in (e)(2)(ii) of this section for determining if State DOT has made significant progress toward the achievement of the target for that measure for the entirety of the performance period.
(5) * * *
(i) * * *
(A) Natural or man-made disasters that caused delay in NHPP or NHFP project delivery, extenuating delay in data collection, or damage/loss of data system;
(B) Sudden discontinuation of Federal Government furnished data due to natural and man-made disasters declared under the Robert T. Stafford Disaster Relief and Emergency Assistance Act or sudden discontinuation of Federal Government furnished data due to lack of funding;
(C) New law or regulation directing State DOTs to change metric or measure calculation; or
(D) Presidentially declared national emergency that caused delay in NHPP or NHFP project delivery, extenuating delay in data collection or submittal, or damage/loss of data system.
(f) * * *
(2) * * *
(iii) * * *
(A) The inventory of truck freight bottlenecks shall include the route and milepost location for each identified bottleneck, road attributes data reported to HPMS, Average Annual Daily Traffic (AADT), Single-Unit Truck and Bus AADT (AADT_Single_Unit), Combination Truck AADT (AADT_Combination), Travel-time data and measure of delay, such as travel time reliability, or Average Truck Speeds, capacity feature causing the bottleneck or any other constraints applicable to trucks, such as geometric constrains, weight limits or steep grades.
Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the Federal Highway Administration (FHWA) must publish a document in the
(a) The American Association of State Highway and Transportation Officials (AASHTO), 555 12th Street NW, Suite 1000, Washington, DC 20004; (202) 624-5800;
(1) AASHTO Standard M328-14, Standard Specification for Transportation Materials and Methods of Sampling and Testing, Inertial Profiler, 2014, 34th/2014 Edition; IBR approved for § 490.309(b).
(2) AASHTO Standard R57-14, Standard Specification for Transportation Materials and Methods of Sampling and Testing, Standard Practice for Operating Inertial Profiling Systems, 2014, 34th/2014 Edition; IBR approved for § 490.309(b).
(3) AASHTO Standard R36-21, Standard Specification for Transportation Materials and Methods of Sampling and Testing, Standard Practice for Evaluating Faulting of Concrete Pavements, 41st/2021 edition, 2021 (
(4) AASHTO Standard R43-13, Standard Specification for Transportation Materials and Methods of Sampling and Testing, Standard Practice for Quantifying Roughness of Pavement, 2014, 34th/2014 Edition, IBR approved for § 490.311(b).
(b) American National Standards Institute, Inc. (ANSI), 1899 L Street NW, 11th Floor, Washington, DC 20036; (202) 293-8020;
(1) ANSI D16.1-2017, Manual on Classification of Motor Vehicle Traffic Accidents, 8th edition, approved
(2) [Reserved]
(c) The Federal Highway Administration, 1200 New Jersey Avenue SE, Washington, DC 20590; (202) 366-4631;
(1) Highway Performance Monitoring System Field Manual (“HPMS Field Manual”), [Publication Year]; IBR approved for §§ 490.103; 490.309(a) and (b); 490.311; 490.319(a) and (b).
(2) Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges, includes: Errata Sheet for Coding Guide 06/2011, Report No. FHWA-PD-96-001, December 1995; IBR approved for
(d) The National Highway Transportation Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590; (888) 327-4236;
(1) DOT HS 813 525 (“MUCC”), Model Minimum Uniform Crash Criteria Guideline, 6th edition, 2024 (
(2) [Reserved]
The additions and revisions read as follows:
(a) There are five performance measures for the purpose of carrying out the HSIP. They are:
(1) Number of fatalities;
(2) Rate of fatalities;
(3) Number of serious injuries;
(4) Rate of serious injuries; and,
(5) Number of non-motorized fatalities and non-motorized serious injuries.
(b) Each performance measure is based on a 3-year average. The performance measures are calculated as follows:
(1) The performance measure for the number of fatalities is the 3-year average of the total number of fatalities for each State and shall be calculated by adding the number of fatalities for each of the most recent 3 consecutive years ending in the year for which the performance targets are established, dividing by 3, and rounding to the tenths decimal place. FARS Annual Report File (ARF) may be used if Final FARS is not available.
(2) The performance measure for the rate of fatalities is the 3-year average of the State's fatality rate per VMT and shall be calculated by first calculating the number of fatalities per 100 million VMT for each of the most recent 3 consecutive years ending in the year for which the performance targets are established, adding the results, dividing by 3, and rounding to the thousandths decimal place. The FARS ARF may be used if Final FARS is not available. State VMT data are derived from the HPMS. The Metropolitan Planning Organizations (MPO) VMT is estimated by the MPO. The sum of the fatality rates is divided by three and then rounded to the thousandths decimal place.
(3) The performance measure for the number of serious injuries is the 3-year average of the total number of serious injuries for each State and shall be calculated by adding the number of serious injuries for each of the most recent 3 consecutive years ending in the year for which the performance targets are established, dividing by three, and rounding to the tenths decimal place.
(4) The performance measure for the rate of serious injuries is the 3-year average of the State's serious injuries rate per VMT and shall be calculated by first calculating the number of serious injuries per 100 million VMT for each of the most recent 3 consecutive years ending in the year for which the performance targets are established, adding the results, dividing by three, and rounding to the thousandths decimal place. State VMT data are derived from the HPMS. The MPO VMT is estimated by the MPO.
(5) The performance measure for the number of non-motorized fatalities and non-motorized serious injuries is the 3-year average of the total number of non-motorized fatalities and non-motorized serious injuries for each State and shall be calculated by adding the number of non-motorized fatalities to the number non-motorized serious injuries for each of the most recent 3 consecutive years ending in the year for which the performance targets are established, dividing by three, and rounding to the tenths decimal place. FARS ARF may be used if Final FARS is not available.
(a) State DOTs shall establish performance targets triennially for each performance measure identified in § 490.207(a) in a manner that is consistent with the following:
(1) State DOT performance targets shall be identical to the performance
(2) State DOT performance targets shall represent performance outcomes triennially (every third calendar year). The first triennial performance targets will be established in [year to be inserted] and will represent performance for calendar years [year to be inserted] through [year to be inserted] based on a 3-year average. The performance targets shall be reported to the FHWA consistent with the requirements in § 490.213(a).
(3) State DOT performance targets shall represent the anticipated performance outcome for all public roadways within the State regardless of ownership or functional class.
(4) State DOT performance targets shall demonstrate constant or improved performance from the baseline safety performance.
(5) Unless approved by FHWA and subject to § 490.209(a)(1), a State DOT shall not change one or more of its performance targets for a given triennial cycle once submitted to the FHWA.
(b) In addition to performance targets described in paragraph (a) of this section, State DOTs may, as appropriate, for each performance target in paragraph (a) of this section establish additional performance targets for portions of the State.
(1) A State DOT shall declare and describe the boundaries used to establish each additional performance target, as required by § 490.213(a).
(2) State DOTs may select any number and combination of urbanized area boundaries and may also select a single non-urbanized area boundary for the establishment of additional performance targets.
(3) The boundaries used by the State DOT for additional performance targets shall be contained within the geographic boundary of the State.
(c) The Metropolitan Planning Organizations (MPO) shall establish performance targets triennially for each of the measures identified in § 490.207(a), where applicable, in a manner that is consistent with the following:
(1) The MPOs shall establish performance targets not later than 180 days after the respective State DOT establishes and reports performance targets to the FHWA.
(2) The MPO performance targets shall represent performance outcomes anticipated for the same calendar years as the State DOT performance targets.
(3) After the MPOs within each State establish the performance targets, the State DOT must be able to provide those performance targets to FHWA, upon request.
(4) For each performance measure, the MPOs shall establish a performance target by either:
(i) Agreeing to plan and program projects so that they contribute toward the accomplishment of the State DOT performance target for that performance measure; or
(ii) Committing to a quantifiable performance target that demonstrates constant or improved performance for that performance measure for their metropolitan planning area.
(5) The MPOs that establish quantifiable fatality rate or serious injury rate performance targets shall report the VMT estimate used for such performance targets and the methodology used to develop the estimate. The methodology should be consistent with other Federal reporting requirements, if applicable.
(6) The MPO performance targets established under paragraph (c)(4) of this section specific to the metropolitan planning area shall represent the anticipated performance outcome for all public roadways within the metropolitan planning boundary regardless of ownership or functional class.
(d)(1) The State DOT and relevant MPOs shall coordinate on the establishment of performance targets in accordance with 23 CFR part 450 to ensure consistency, to the maximum extent practicable.
(2) The MPOs with multi-State boundaries that agree to plan and program projects to contribute toward State DOT performance targets in accordance with paragraph (c)(4)(i) of this section shall plan and program safety projects in support of the State DOT performance targets for each area within each State (
(a) The determination for having met or made significant progress toward meeting the performance targets under 23 U.S.C. 148(i) will be determined based on:
(1) The most recent available Final FARS data for the fatality number. The FARS ARF may be used if Final FARS is not available;
(2) The most recent available Final FARS and HPMS data for the fatality rate. The FARS ARF may be used if Final FARS is not available;
(3) The most recent available Final FARS data for the non-motorized fatality number. The FARS ARF may be used if Final FARS is not available;
(4) State reported data for the serious injuries number;
(5) State reported data and HPMS data for the serious injuries rate; and
(6) State reported data for the non-motorized serious injuries number.
(b) The State-reported serious injury data and non-motorized serious injury data will be taken from the HSIP annual report, prepared in accordance with 23 CFR part 924.
(c) The FHWA will evaluate whether a State DOT has met or made significant progress toward meeting performance targets.
(1) The FHWA will not evaluate any additional performance targets a State DOT may establish under § 490.209(b).
(2) A State DOT is determined to have met or made significant progress toward meeting its performance targets when at least four of the performance targets established under § 490.207(a) are:
(i) Met; or
(ii) The outcome for a performance measure is less than the baseline safety performance for a performance measure. For example, of the State DOT's five performance targets, the State DOT is determined to have met or made significant progress toward meeting its performance targets if it met two performance targets and the outcome is less than the measure for the year prior to the establishment of the performance target for two other performance targets.
(d) If a State DOT has not met or made significant progress toward meeting performance targets in accordance with paragraph (c) of this section, the State DOT must comply with 23 U.S.C. 148(i) for the subsequent 3 fiscal years.
(e) The FHWA will determine whether a State DOT has met or made significant progress toward meeting performance targets following the last calendar year for which the performance targets are established, and then triennially thereafter.
(f) The FHWA will continue to assess prior year performance targets annually, based on a 5-year rolling average, to determine met or made significant progress toward meeting calendar year [year to be inserted] performance targets in [year to be inserted].
(g) The FHWA will determine that a State DOT has not met or made significant progress toward the achievement of performance targets if a State DOT does not report the required data in the HSIP annual report, in accordance with § 490.213(b).
(h) The FHWA will consider extenuating circumstances documented by the State DOT in the assessment of progress toward met or made significant progress of performance targets.
(1) The FHWA will classify the assessment of progress toward the achievement of the triennial performance target as “progress not determined” if the State DOT has provided an explanation of the extenuating circumstances beyond the control of the State DOT that prevented it from meeting or making significant progress toward the achievement of the triennial performance targets and the State DOT has quantified the impacts on the performance that resulted from the circumstances, which are:
(i) Natural or man-made disasters declared under the Robert T. Stafford Disaster Relief and Emergency Assistance Act that caused delay in data collection;
(ii) [Reserved]
(iii) New law or regulation directing State DOTs to change metric or measure calculation; or
(iv) Presidentially declared national emergency that impacts the collection or submittal of data.
(2) If the State DOT's explanation, described in paragraph (h)(1) of this section, is accepted by the FHWA, then the progress toward achieving the safety performance targets will be classified as “progress not determined”.
(a) The performance targets established by the State DOT shall be reported to the FHWA by [date to be inserted], and triennially thereafter, in accordance with 23 CFR part 924.
(b) The State DOT shall annually report on performance in the HSIP annual report, in accordance with 23 CFR part 924. The State DOT shall, at a minimum, include the most recent 6 consecutive years of State reported serious injury data and non-motorized serious injury data in each year's HSIP annual report.
(c) The MPOs shall triennially report their established performance targets to their respective State DOT, in a manner that is documented and mutually agreed upon by both parties.
(d) The MPOs shall report baseline safety performance, VMT estimate and methodology if a quantifiable rate performance target was established, and progress toward the achievement of their performance targets in the system performance report in the metropolitan transportation plan in accordance with 23 CFR part 450. Performance and progress shall be reported based on the following data sources:
(1) The most recent available Final FARS data for the fatality number. The FARS ARF may be used if Final FARS is not available;
(2) The most recent available Final FARS and MPO VMT estimate for the fatality rate. The FARS ARF may be used if Final FARS is not available;
(3) The most recent available Final FARS data for the non-motorized fatality number. The FARS ARF may be used if Final FARS is not available;
(4) State reported data for the serious injuries number;
(5) State reported data and MPO VMT estimate for the serious injuries rate; and
(6) State reported data for the non-motorized serious injuries number.
(3) For CRCP, the Cracking Percent is the percentage of pavement surface with longitudinal cracking or punchouts, spalling or other visible defects.
(a) The performance measures identified in § 490.307 are to be computed using methods in § 490.313 from the four condition metrics and the three relevant data items contained within the HPMS, which are collected and reported following the HPMS Field Manual (incorporated by reference, see § 490.111). State DOTs shall report four condition metrics for each pavement section: IRI, rutting, faulting, and Cracking_Percent. State DOTs shall also report three relevant data items: Through_Lanes, Surface_Type, and Structure_Type. All pavement data collected after January 1, 2018, for Interstate highways and January 1, 2020, for non-Interstate National Highway System routes shall meet the requirements of this section.
(b) * * *
(1) * * *
(i) * * *
(B) In the rightmost travel lane or an adjacent lane for all data if the rightmost travel lane is not readily accessible due to construction, closure, excessive congestion, or other events impacting access;
(iv) * * *
(A) The PSR shall be determined as a value from 0.1 to 5.0 per the procedures prescribed in the HPMS Field Manual;
(2) * * *
(i) * * *
(B) In the rightmost travel lane or an adjacent lane for all data if the rightmost travel lane is not accessible due to construction, closure, excessive congestion, or other events impacting access;
(ii) * * *
(B) In the rightmost travel lane or an adjacent lane for all data if the rightmost travel lane is not accessible due to construction, closure, excessive congestion, or other events impacting access;
(iii) * * *
(A) The PSR shall be determined as a 0.1 to 5.0 value per the procedures prescribed in the HPMS Field Manual;
(3) * * *
(v) For CRCP the method to collect the data needed to determine the Cracking_Percent metric is described in the HPMS Field Manual and includes longitudinal cracking or punchouts, spalling, or other visible defects.
(vi) For asphalt pavements, the method to collect data needed to determine the rutting metric shall be the method(s) identified in the HPMS Field Manual.
(vii) For jointed concrete pavements, the method to collect data needed to determine the faulting metric shall be in accordance with AASHTO Standard R36-21 (incorporated by reference, see § 490.111).
(c) State DOTs shall collect data in accordance with the following relevant HPMS requirements to report Through_Lanes, Surface_Type, and Structure_Type.
(a) The condition metrics and relevant data items needed to calculate the pavement performance measures shall be calculated in accordance with the HPMS Field Manual (incorporated by reference, see § 490.111), except as noted below.
(b) * * *
(5) * * *
(ii) The PSR shall be determined as a 0.1 to 5.0 value per the procedures prescribed in the HPMS Field Manual.
(c) * * *
(3) * * *
(i) The StateID, RouteID, BeginPoint, and EndPoint shall be reported as specified in the HPMS Field Manual (incorporated by reference, see § 490.111) for each of the four condition metrics.
(ii) The BeginDate shall be reported as required in the HPMS Field Manual for each of the four condition metrics; and
(iii) The ValueDate shall be reported as the month and year of data collection for each of the four condition metrics.
(d) The three data items, Through_Lanes, Surface_Type, and Structure_Type shall be reported to the HPMS as directed in Chapter 4 of the HPMS Field Manual for the entire extent of the NHS.
(1) Section Lengths for the three data items are not required to meet the 0.1 mile nominal length but may be any logical length as defined in the HPMS Field Manual.
(2) The three data elements shall be reported to the HPMS for the Interstate System by April 15 of each year.
(3) The three data elements shall be reported to the HPMS for the non-Interstate NHS by June 15 of each year that data reporting is required.
(b) * * *
(4) The FHWA will determine that a reported section in HPMS has a missing, invalid or unresolved data on the dates specified in § 490.317(b) for Interstate System and § 490.109(d)(1)(ii) for non-Interstate NHS, if a reported section does not meet any one of the data requirements specified in §§ 490.309 and 490.311(c) or that reported section does not provide sufficient data to determine its Overall Condition specified in paragraphs (c) through (f) of this section:
(i) Total mainline lane-miles of missing, invalid, or unresolved sections for Interstate System on the date specified in § 490.317(b) shall be limited to no more than 5.0 percent of the total Interstate System lane miles less the sections excluded in § 490.313(f)(1).
(ii) Total mainline lane-miles of missing, invalid, or unresolved sections for non-Interstate NHS on the dates specified in § 490.109(d)(1)(ii) shall be limited to no more than 5.0 percent of the total non-Interstate NHS lane miles less the sections excluded in § 490.313(f)(1).
(iii) Where applicable, for each pavement section with missing condition metric(s) or relevant data item(s), State DOTs shall include in the HPMS submittal the specific code identified in the HPMS Field Manual (incorporated by reference, see § 490.111) noting the reason the data was not collected.
(iv) Calculation of overall pavement conditions in any State meeting the requirements of § 490.309(b) shall be based only on sections data extracted on the dates specified in § 490.317(b) for Interstate System and § 490.109(d)(1)(ii) for non-Interstate NHS.
(v) State DOTs not meeting the requirements of § 490.309(b) will be considered as not in compliance with § 420.105(b) requiring State DOTs to submit data to the HPMS and not in compliance with § 490.107 requiring reporting on performance targets.
(vi) Failure to meet the requirements of § 490.309(b) or paragraph (b)(4)(i) of this section on the date specified in § 490.317(b) for the Interstate System will be considered as not meeting the minimum requirements for pavement conditions on the Interstate System and that State DOT is subject to the penalties in § 490.315.
(f) * * *
(2) For § 490.307(a)(1) the measure for percentage of lane-miles of the Interstate System in Good condition shall be computed to the one tenth of a percent as follows:
(3) For § 490.307(a)(2) the measure for percentage of lane-miles of the Interstate System in Poor condition shall be computed to the one tenth of a percent as follows:
(4) For § 490.307(a)(3) the measure for percentage of lane-miles of the non-Interstate NHS in Good condition in § 490.307(a)(3) shall be computed to the one tenth of a percent as follows:
(5) For § 490.307(a)(4) the measure for percentage of lane-miles of the non-Interstate NHS in Poor condition in § 490.307(a)(4) shall be computed to the one tenth of a percent as follows:
(c) * * *
(1) FHWA shall use the determination from the previous year to carry out paragraph (a) of this section when FHWA determines a State DOT is not in compliance with § 490.315(a) or § 490.315(b) due to an extenuating circumstance listed in § 490.109(e)(5) related to the collection or submittal of data.
(2) State DOTs will provide a description of any applicable extenuating circumstances for FHWA's consideration by the date specified in § 490.317(b).
(c) * * *
(1) * * *
(ii) Certification process for persons performing data collection;
Bureau of Land Management, Interior.
Proposed supplementary rule.
The Bureau of Land Management (BLM) is proposing a supplementary rule to protect natural resources and public health and safety. The proposed supplementary rule would apply to public lands and BLM facilities managed by the Colorado River Valley, Grand Junction, and Kremmling Field Offices, and the Dominguez-Escalante National Conservation Area (NCA) in Colorado managed by the Grand Junction and Uncompahgre Field Offices.
Please submit comments by March 25, 2024. Comments received after this date may not be considered in the development of the final supplementary rule.
You may submit comments by the following methods: ePlanning
Erin Jones, Upper Colorado River District Associate District Manager (see address listed earlier), or by phone: (970) 244-3008; or email:
Written comments on the proposed supplementary rule should be specific, confined to issues pertinent to the proposed supplementary rule, and explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposed supplementary rule that the comments are addressing. The BLM will consider comments received before the end of the comment period (see
The Colorado River Valley, Grand Junction, and Kremmling Field Offices, and Dominguez-Escalante NCA completed new resource management plans (RMPs) in recent years. Supplementary rules are necessary to implement the decisions in the RMPs, which would facilitate enforcement of these decisions and protect natural resources and public health and safety.
The field offices completed their RMP processes and issued Records of Decision (RODs) after inviting the public to comment during scoping and public-comment periods. The field offices review each public comment received during each step of the process and responded to all comments received during the public-comment periods (see the individual RMPs for responses to public comments). Some parts of the proposed rule have already been in effect under previous RMPs; for example, the 14-day camping limits and restrictions on mechanized travel. Other proposed rule restrictions are from the new RMPs published in 2015, such as the restrictions on rock climbing in the Colorado River Valley Field Office and on metal detectors and paintball guns in Dominguez-Escalante NCA.
This proposed supplementary rule would apply to public lands and BLM facilities managed by the Colorado River Valley Field Office, Grand Junction Field Office, Kremmling Field Office, and Dominguez-Escalante NCA.
This proposed supplementary rule would address resource damage, public safety, wildland fire, and wildlife disruption concerns. The BLM consulted with the Shooting Sports Roundtable while preparing each RMP to coordinate on the shooting closures described in this proposed rule.
We expect that concerns raised over restrictions to recreational activities in this proposed supplementary rule will be similar to those that the BLM addressed when it developed the supporting RMPs. Issues raised during the development of the supporting RMPs included concerns over the size and location of areas available for mechanized travel, target shooting, and camping in each field office or NCA, and the suitability of the areas for those uses. BLM examined the issues and comments submitted during the development of each RMP and struck a balance between making areas available for these types of activities and imposing restrictions where necessary to protect natural resources and public health and safety.
The proposed supplementary rule conforms with management decisions contained in the following RMPs:
Colorado River Valley RMP (2015) as amended by the Sutey Ranch and Haines Parcel Approved RMP Amendment (2019);
Grand Junction RMP (2015);
Kremmling RMP (2015); and
Dominguez-Escalante NCA RMP (2017).
The authority for this supplementary rule is set forth at sections 303 and 310 of the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1733 and 1740, as well as 43 CFR 8365.1-6, which authorizes BLM State Directors to establish a supplementary rule for the protection of persons, property, and public lands and resources.
The proposed supplementary rule is not a significant regulatory action and is not subject to review by the Office of Management and Budget under Executive Order 12866 as amended by Executive Order 14094. The proposed supplementary rule would not have an effect of $200 million or more on the economy and would not adversely affect in a material way productivity; competition; jobs; the environment; public health or safety; or State, local, or Tribal governments or communities. The proposed supplementary rule would not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The proposed supplementary rule would not materially alter the budgetary effects of entitlements, grants, user fees, or loan programs, or the rights or obligations of their recipients, nor does it raise novel legal or policy issues. This proposed supplementary rule would merely impose limitations on certain activities on certain public lands to protect natural resources and human health and safety.
Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. The proposed supplementary rule would have no effect on business entities of any size. The proposed supplementary rule would merely impose reasonable restrictions on certain activities on certain public lands to protect natural resources and the environment and human health and safety. Therefore, the BLM certifies under the RFA that this proposed supplementary rule would not have a significant economic impact on a substantial number of small entities.
This proposed supplementary rule is not a “major rule” as defined at 5 U.S.C. 804(2). This proposed supplementary rule would merely impose reasonable restrictions on certain recreational activities on certain public lands to protect natural resources, the environment and human health and safety. This proposed supplementary rule would not:
(1) Have an annual effect on the economy of $100 million or more.
(2) Cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local agencies; or geographic regions; or
(3) Have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
The proposed supplementary rule would not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year; nor would it have a significant or unique effect on State, local, or Tribal governments or the private sector. The proposed supplementary rule would merely impose reasonable restrictions on certain recreational activities on specific public lands to protect natural resources, the environment, and human health and safety. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
The proposed supplementary rule does not constitute a government action capable of interfering with constitutionally protected property rights. The proposed supplementary rule would not address property rights in any form and would not cause the impairment of constitutionally protected property rights. Therefore, the BLM has determined that this proposed supplementary rule would not cause a “taking” of private property or require further discussion of takings implications under this Executive order.
The proposed supplementary 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. Therefore, in accordance with Executive Order 13132, the BLM has determined that this proposed supplementary rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.
Under Executive Order 12988, the BLM has determined that this proposed supplementary rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 13175, the BLM has found that this proposed supplementary rule does not include policies that have Tribal implications and would have no bearing on trust lands or on lands for which title is held in fee status by Indian Tribes or U.S. Government-owned lands managed by the Bureau of Indian Affairs.
This proposed supplementary rule does not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521.
This proposed supplementary rule would implement key decisions in the following RMPs: Colorado River Valley Field Office, Grand Junction Field Office, Kremmling Field Office, and Dominguez-Escalante NCA. The BLM's National Environmental Policy Act (NEPA) reviews for these management plans analyzed the effects of implementing the RMP decisions through a supplementary rule. The BLM prepared a Determination of NEPA Adequacy to confirm that the prior analyses and public comment processes were sufficient to inform the decision to establish this supplementary rule. Therefore, additional NEPA analysis is not required. Copies of the Environmental Impact Statements and RODs for each RMP, and the Determination of NEPA Adequacy for this proposed supplementary rulemaking, are on file at the BLM offices at the addresses specified in the
This proposed supplementary rule does not comprise a significant energy action. This proposed supplementary rule would not have an adverse effect on energy supply, production, or consumption and has no connection with energy policy.
In developing this proposed supplementary rule, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Section 515 of Pub. L. 106-554).
In accordance with Executive Order 13352, the BLM has determined that the proposed supplementary rule would not impede facilitating cooperative conservation; would take appropriate account of and consider the interests of persons with ownership or other legally recognized interests in land or other natural resources; would properly accommodate local participation in the Federal decision-making process; and would provide that the associated programs, projects, and activities are consistent with protecting public health and safety.
The principal author of this proposed supplementary rule is Erin Jones, Associate District Manager BLM Upper Colorado River District Office.
For the reasons stated in the preamble, and under the authority of 43 U.S.C. 1733(a) and 1740, and 43 CFR 8365.1-6, the State Director proposes a supplementary rule for public lands and facilities in the Colorado River Valley Field Office, Grand Junction Field Office, Kremmling Field Office, and Dominguez-Escalante NCA.
(1) As used in this Supplementary Rule, the term:
1. lands located on the Outer Continental Shelf; and
2. lands held for the benefit of Indians, Aleuts, and Eskimos.
(2) As used in this proposed Supplementary Rule, the following additional acronyms apply:
ACEC means Area of Critical Environmental Concern.
ERMA means Extensive Recreation Management Area.
OHV means off-highway vehicle.
NCA means National Conservation Area.
RMA means Recreation Management Area.
RMZ means Recreation Management Zone.
SRMA means Special Recreation Management Area.
USFS means United States Forest Service.
WSA means Wilderness Study Area.
1. You must not abandon animal carcasses, or any part of an animal carcass, within 100 feet of the outer perimeter of any campsite (designated or dispersed) or 100 feet from the edge of any roadway or any water source.
2. You must not operate mechanical transport (
3. You must not have a campfire outside of a designated campsite in the following areas:
4. You must not camp outside of designated campsites and developed campgrounds in the following areas:
5. Equestrian travel is prohibited on/in the following trails/areas:
6. Recreational target shooting is prohibited on the following BLM-managed lands to protect visitor safety (discharge of firearms, other weapons, and fireworks on developed recreation sites and areas is prohibited under 43 CFR 8365.2-5(a)).
7. Overnight use is prohibited in the following areas (day-use allowed only):
8. The following areas are closed to mechanized travel during the specified timeframes to protect wintering big game species.
1. You must not engage in target shooting without a target backstop.
2. You must not build or maintain a fire more than 3 feet in diameter, unless otherwise authorized.
3. Unless the campsite is marked and designated by the BLM, you must not camp within 100 feet from any spring, pond, lake, or perennial stream.
4. You must keep dogs and other domesticated animals on a leash or other similar constraint (
5. You must not cut live or dead standing trees unless otherwise permitted. You may collect only dead and down wood for campfires.
6. You must not camp or otherwise occupy any location or site for more than 7 consecutive days from April 1 to August 31, unless otherwise authorized in writing by the BLM.
7. You must not camp or otherwise occupy any location or site for more than 14 consecutive days between September 1 and March 31, unless otherwise authorized in writing by the BLM.
8. In areas with limited travel designations, mechanized travel is limited to designated routes.
9. In areas with limited travel designations, mechanized and motorized travel up to 300 feet from designated motorized/mechanized routes is permitted for direct access to dispersed campsites provided that: (a) no resource damage occurs; (b) no new routes beyond the campsite are created; and (c) such access is not otherwise prohibited (such as in WSAs).
10. In areas open for over-snow travel, travel off designated routes is prohibited unless a minimum of 12 inches of snow cover exists and no resource damage will occur from over-snow travel.
11. In the Thompson Creek ERMA,
(a) You may reestablish old rock-climbing routes and permanent fixed climbing anchors (bolts and pitons) only at the BLM-recognized sport rock climbing area (rock fins, narrow walls of hard sedimentary rock).
(b) You must not develop additional bolted routes outside of the BLM-recognized sport rock climbing area (rock fins).
(c) You may use mechanical devices (
(d) You must not exceed a climbing group size (per route) of four people per day, including staff, at the BLM-recognized sport rock climbing area (rock fins).
12. In the Upper Colorado SRMA,
(a) You must not exceed a group size of 25 people per group (including guides) for commercial and private river groups.
(b) You must not camp or display an intent to camp during an overnight river trip without an approved fire pan.
(c) You must not camp, or display an intent to camp overnight, without an approved portable toilet.
(d) You must carry and use an approved portable toilet on an overnight trip. The system must be adequate for the size of the group and length of the trip. All solid human bodily waste, including WAG bags, must be contained in a leak-proof, hard-sided container with a screw-on or ratchet-locking lid.
(e) You must not fail to set up an approved portable toilet, ready for use, as soon as practical upon arriving at the campsite to be occupied on an overnight trip if a toilet facility (porta-potty or vault toilet) is not provided by the BLM.
(f) You must not empty an approved portable toilet into a developed toilet facility, or any other facility not developed and identified especially for that purpose. Leaving solid human waste on public lands or dumping it into vault toilets or trash receptacles at BLM-managed facilities is prohibited unless using a WAG-bag system that is specifically designed for disposal in trash receptacles.
(g) You must remove and properly dispose of all pet waste from developed recreation sites/areas.
13. On the Sutey Ranch,
(a) You must not enter from December 1 through April 15 when closure orders are in effect to protect wintering big game, except when allowed under other applicable laws.
(b) You must not harvest timber, firewood, or special forest products.
(c) You must not travel by mechanized vehicle from October 1 through May 31.
1. You must use an approved portable toilet at designated undeveloped sites in the following areas: North Fruita Desert SRMA, Bangs SRMA RMZ 2, and Dolores River SRMA.
2. You must not enter the Pyramid Rock ACEC.
3. You must not travel via any mode of transport (including foot and horse travel) off designated routes in the following areas: Bangs SRMA RMZ 1 north of Little Park Road and Andy's Loop, and Gunnison River Bluffs ERMA.
4. You must not collect dead and down wood in the following areas, except for campfire use: Unaweep lands with wilderness characteristics area; riparian areas; Pyramid Rock ACEC; Unaweep Seep ACEC; Bangs SRMA RMZ 2.
5. You must collect only dead and down wood for campfires in the North Desert ERMA.
6. You must not harvest timber or cut firewood in the following areas: Bangs SRMA RMZ 1; RMZ 3; RMZ 4; North Fruita Desert SRMA; Palisade Rim SRMA.
7. You must not exceed the following group-size limits, including guides and dogs, without written authorization from the BLM: 12 in WSAs and areas managed to protect wilderness characteristics; 25 for more than 2 hours in the remaining lands managed by the Grand Junction Field Office. For groups that exceed these limits, you must contact the BLM prior to the outing so that the BLM can determine whether an organized group Special Recreation Permit is required.
8. You must have campfires within agency-provided fire rings or approved fire pans at designated undeveloped sites in the following areas: Dolores River SRMA, Bangs SRMA RMZ 2, North Fruita Desert SRMA.
9. You must not install permanent climbing anchors that do not match the color of the rock surface (fixtures, hardware, and webbing, etc.).
1. You must not empty or dispose of sewage and/or gray water held in a containment tank on public lands or at any facility not specifically identified for such disposal.
2. You must not build or maintain a fire more than 3 feet in diameter, unless otherwise authorized in writing by the BLM.
3. You must not leave, deposit, or scatter human waste, toilet paper, or items used as toilet paper, when an approved portable toilet or developed toilet facility is available. Where a developed toilet facility is not provided, and an approved portable toilet is not required, all human waste and toilet paper, or material used as toilet paper, must be buried at least 6 inches below the surface of the ground in natural soil, and at least 100 feet from the edge of a river or any other water source.
4. You must not dig in or level the ground at any campsite.
5. In areas open to dispersed camping, you must not camp outside of designated sites within 50 feet of any spring, pond, lake, or perennial stream.
6. You must keep dogs and other domesticated animals on a leash or other similar constraint (
7. Fuel wood collection is prohibited in developed recreation areas. Fuel wood for recreational campfires outside of developed recreation areas is limited to dead and downed vegetation, unless otherwise prohibited.
8. You must not camp or otherwise occupy any location or site for more than 7 consecutive days from April 1 to August 31, unless otherwise authorized in writing by the BLM.
9. You must not camp or otherwise occupy any location or site for more than 14 consecutive days between September 1 and March 31, unless otherwise authorized in writing by the BLM.
10. In areas open for over-snow travel in the field office, travel off designated routes is prohibited unless a minimum of 12 inches of snow cover exists and no resource damage will occur from over-snow travel.
11. In areas with limited travel designations, mechanized travel is limited to designated routes.
12. In areas with limited travel designations, motorized and mechanized travel (bicycles) are allowed up to 300 feet from designated motorized or mechanized transport routes for direct access to dispersed campsites or parking provided that: (a) no resource damage occurs; (b) no new routes are created; and (c) such access is not otherwise prohibited.
13. In the Wolford Mountain Travel Management Area, motorized and mechanized travel (bicycles) is allowed up to 50 feet from designated motorized or mechanized routes for direct access to dispersed campsites or parking provided that: (a) no resource damage occurs; (b) no new routes are created; and (c) such access is not otherwise prohibited.
14. In the North Sand Hills SRMA,
(a) You must not park a vehicle in such a manner as to impede or obstruct the normal flow of traffic or create a hazardous condition.
(b) You must obey posted parking closures or restrictions.
(c) You must not operate a motor vehicle or OHV in excess of the posted speed limit, or in excess of 15 mph around camping areas, 50 feet from any campsite, parked vehicle(s), person(s), or animal(s).
(d) You must not possess or use any glass container on the open sand dunes or trails. Persons may possess glass containers within the confines of their camping area.
(e) You must not cut, collect, or use live, dead, or down wood.
15. In the Wolford Mountain SRMA,
(a) You must possess and use a hazardous materials spill kit if necessary during travel on the Sidewinder Extreme 4x4 trail.
(b) Travel is allowed on the Sidewinder Extreme 4x4 trail only when the top 1 inch of soil is dry and there is no rutting.
16. In the Upper Colorado River SRMA,
(a) You must not camp, or display intent to camp overnight, without an approved portable toilet.
(b) You must carry and use an approved portable toilet when on an overnight trip. The system must be adequate for the size of the group and length of the trip. The toilet system must be a reusable, washable, leak-proof toilet system that allows for the carry-out and disposal of solid human body waste in a responsible and lawful manner and must be accessible during the trip.
(c) All solid human waste, including WAG bags, must be contained in a leak-proof, animal-proof, hard-sided container with a screw-on or ratchet-locking lid.
(d) You must set up an approved portable toilet, ready for use, as soon as practical upon arriving at the campsite to be occupied on an overnight trip. You must not empty an approved portable toilet into a developed toilet facility, or any other facility not developed and identified especially for that purpose. Leaving solid human waste on public lands or dumping it into vault toilets or trash receptacles at BLM-managed facilities is prohibited.
(e) You must not camp or display intent to camp during an overnight river trip without an approved fire pan.
(f) You must not build, ignite, maintain, or use a campfire not contained in an approved fire pan.
(g) You must not leave fresh fire ash produced from a campfire in a fire pan or in a constructed, permanently installed metal fire pit provided by the BLM outside of the Pumphouse, Radium, and State Bridge Recreation Sites. Fire blankets under fire pans to facilitate total ash removal are recommended but are not required.
(h) You must remove and properly dispose of all pet waste from developed recreation sites/areas.
(i) You must not launch or take out a vessel in areas signed as prohibiting those activities.
(j) You must not cut, collect, or use live, dead, or down wood except driftwood.
1. You must not install permanent climbing anchors in outstanding geologic features identified on a BLM sign or map.
2. You must not place or maintain permanent climbing anchors inside the Dominguez Canyon Wilderness Area without a permit from the BLM.
3. You must not install permanent climbing anchors that do not match the color of the rock surface (fixtures, hardware, and webbing, etc.).
4. You must not collect or harvest firewood or native species in riparian and wetland areas, except for driftwood.
5. You must not possess domestic goats.
6. You must keep all domestic dogs on leashes, except those actively working on a livestock operation in Wilderness Zone 1 and in the Escalante Triangle RMZ in the Sawmill Mesa ERMA (after the loop trail system is constructed).
7. You must not exceed group-size limit of 25 people in Wilderness Zone 1.
8. You must not exceed a group-size limit of 12 people in Wilderness Zones 2 and 3.
9. You must pack out all solid human waste in Wilderness Zone 2.
10. You must pack out solid human waste or bury solid human waste in a cathole more than 100 meters (approximately 383 feet) from natural water sources (rivers, creeks, springs, and seeps) in Wilderness Zone 3.
11. You must not place recreational geocaches without BLM authorization prior to placement.
12. You must not use a metal detector.
13. You must not use a paintball gun.
14. You must not use glass containers in the Potholes Recreation Site (Escalante Canyon) and Gunnison River SRMA.
15. Consistent with Public Law 111-11, you must not remove minerals from the NCA.
16. You must pack out solid human waste and fire ash. You must use portable toilet systems and fire pans for all overnight camping in undeveloped camp sites in the following RMAs: Gunnison River, Cactus Park, Escalante Canyon.
17. You must not rock climb (
18. You must not ride a horse, donkey, mule, or burro in Wilderness Zone 1 except on existing routes identified on a BLM sign or map.
19. In the Gunnison River RMA,
(a) Motorized boat use is prohibited at BLM boat ramps and at campsites from May 1 through Labor Day Weekend.
(b) You must not have your dog off leash at boat ramps and the mouth of Dominguez Canyon.
(c) Exceeding a group size of 25 on the river (including guides and dogs) is prohibited.
(d) You must not camp outside of designated campsites.
(e) Non-boating overnight camping is prohibited at the mouth of Dominguez Canyon from May 1 through Labor Day Weekend.
(f) You must not camp more than 7 consecutive nights, unless otherwise authorized in writing by the BLM.
20. In the Ninemile Hill Recreation Management Area (RMA),
(a) You must not camp outside of designated campsites. Dispersed camping is allowed outside of designated campsites, so long as such camping takes place at least a
(b) You must not camp for more than 7 consecutive days, unless otherwise authorized in writing by the BLM.
21. In the Cactus Park RMA,
(a) You must not camp outside of designated campsites.
(b) You must not camp for more than 7 consecutive days from April 1 through Labor Day Weekend unless otherwise authorized by the BLM.
22. In the Hunting Ground RMA
(a) You must not camp for more than 7 consecutive days, unless otherwise authorized in writing by the BLM.
The following persons are exempt from this proposed supplementary rule: any Federal, State, local, and/or military employees acting within the scope of their official duties; members of any organized rescue or fire fighting force performing an official duty; and persons who are expressly authorized or approved by the BLM.
Any person who violates any part of this supplementary rule may be tried before a United States Magistrate and fined in accordance with 18 U.S.C. 3571, imprisoned no more than 12 months under 43 U.S.C. 1733(a) and 43 CFR 8360.0-7, or both. In accordance with 43 CFR 8365.1-7, State or local officials may also impose penalties for violations of Colorado law.
Office of the Secretary of Transportation, Department of Transportation.
Notice of proposed rulemaking.
The Department of Transportation (“DOT” or “the Department”) proposes to implement provisions of the Infrastructure Investment and Jobs Act (the “IIJA”) that expand or modify the authorities applicable to the Railroad Rehabilitation and Improvement Financing (“RRIF”) and Transportation Infrastructure
Written comments will be accepted until February 26, 2024. We will consider late comments to the extent practicable.
Your comments may be submitted by one of the following methods:
•
•
•
For technical questions concerning this proposed rule, contact Tanya Langman of the National Surface Transportation and Innovative Finance Bureau at 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 366-2300, email at
The National Surface Transportation and Innovative Finance Bureau, also known as the Build America Bureau (the “Bureau”), administers certain Department of Transportation lending programs, including under Title V of the Railroad Revitalization and Regulatory Reform Act of 1976, as amended (the “RRIF Act”),
The IIJA
The IIJA amends both Acts to allow obligations with long tenors. Section 21301(d)(6) of the IIJA amends Section 22402(g)(1) of the RRIF Act to allow the Secretary to issue direct loans or loan guarantees with a term that is not longer than the shorter of:
(A) 75 years after the date of substantial completion of the project;
(B) the estimated useful life of the rail equipment or facilities to be acquired, rehabilitated, improved, developed, or established, subject to an adequate determination of long-term risk; or
(C) for projects determined to have an estimated useful life that is longer than 35 years, the period that is equal to the sum of—
(i) 35 years; and
(ii) the product of—
(I) the difference between the estimated useful life and 35 years; multiplied by
(II) 75 percent.
Similarly, capital assets with an estimated life of more than 50 years may be issued a TIFIA secured loan or loan guarantee with a final maturity date that is the lesser of:
(i) 75 years after the date of substantial completion of the project; or
(ii) 75 percent of the estimated useful life of the capital asset.
The RRIF Act, and the TIFIA Act, except as provided in 23 U.S.C. 603(b)(4)(B)-(C), require that the interest rate on a loan be not less than the yield on United States Treasury securities of a similar maturity.
The Bureau proposes to amend the Rules to address compliance with these interest rate requirements for RRIF or TIFIA obligations if the United States Treasury does not post the yield for securities of a similar maturity. The amended Rules will require an interest rate spread on any RRIF or TIFIA loan with both: (1) a final maturity date that is more than 35 years after the date of substantial completion of the project; and (2) a loan term—the period beginning on the date of execution of the loan agreement and ending on the final maturity date—that is more than 40 years. The interest rate will be equal to not less than the rate on thirty-to-forty-year SLGS securities plus an annual interest rate adjustment for any period of the loan term after year 40
The conceptual framework and methodology for the interest rate adjustment on loans with long tenors is in large part based on results from a working paper out of the San Francisco Federal Reserve Bank.
Consistent with financial theory and historic tendencies, both the High Quality Market Corporate Bond Par Yield and the Treasury Nominal Coupon anticipate milder increases in interest rates after year 50 than before. Accordingly, the Bureau does not expect that the interest rates on hypothetical Treasury securities would grow linearly from year 51. Instead, the rates for such maturities would be expected to flatten out in the outyears. To reflect this expectation, the Bureau proposes to lower the interest rate adjustment in the outyears. Specifically, the Bureau proposes to add 0.4 basis points for each year between years 51 and 70, and 0.2 basis points for each year between years 71 and 100. This tapering is consistent with the projected flattening of the Treasury Nominal Coupon and High Quality Market Corporate Bond yield curves beyond 2050.
The Federal Credit Reform Act of 1990, as amended (“FCRA”),
Section 21301(d)(5)(B) of the IIJA amends Section 22402(f)(7) of the RRIF Act to require the Secretary to “return credit risk premiums paid, and interest accrued on such premiums, to the original source when all obligations of a loan or loan guarantee have been satisfied.”
The TIFIA Act requires a project to “satisfy the applicable planning and programming requirements of sections 134 and 135 at such time as an agreement to make available a Federal credit instrument is entered into under the TIFIA program.”
(A) shall be included in the State transportation plan required under section 135; and
(B) at such time as an agreement to make available a Federal credit instrument is entered into under this subchapter, shall be included in the approved State transportation improvement program required under section 134.”
The TIFIA Rule was published in 1998
Interested persons are invited to participate in this proposed rulemaking by submitting data, views, and comments. Written comments must include the agency name and docket number or Regulation Identifier Number (“RIN”), RIN 2105-AE69, and should be submitted to one of the addresses indicated in the
The Bureau will consider all comments received before the close of business on the comment closing date indicated above under
Background documents or comments received may be read at
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
This proposed rule has been determined to not be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs within the Office of Management and Budget.
As required by 5 U.S.C. 553(b)(4), a summary of this rule can be found in the Abstract section of the Department's Unified Agenda entry for this rulemaking at
According to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Regulatory Flexibility Act (5 U.S.C. 601
The Bureau has evaluated the effects of this proposed action on small entities and has determined that the proposed rule would not have a significant economic impact on a substantial number of small entities. First, the Bureau does not expect to enter into loans with a substantial number of small entities. In the last five years, the Bureau has obligated almost 40 loans under both the RRIF and TIFIA programs, and no borrowers have been small entities. Given that zero percent of borrowers were small entities in the time period sampled, the Bureau does not expect that a substantial percentage of borrowers will be small entities in the future. Second, the Bureau doesn't believe that this action would have a significant economic impact. The changes to the TIFIA Rule related to inclusion in the transportation plans and programs will not have any economic impact. While the changes to the Rules related to long-tenored obligations will raise interest rates for borrowers of long-tenored obligations, this impact can be avoided by a borrower opting for a loan term that is less than 40 years. A RRIF loan with a positive CRP will similarly have a higher interest rate, but the Bureau believes this economic impact is preferable to a CRP payment that is so large it is cost prohibitive. For those reasons, the Bureau certifies that this action would not have a significant economic impact on a substantial number of small entities.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), requires that Federal agencies promulgating new regulations or reviewing existing regulations take steps to minimize litigation, eliminate ambiguity and to reduce burdens on the regulated public. The Bureau has reviewed this rulemaking and has determined that this rulemaking action conforms to the applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988.
Consistent with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments, 65 FR 67249 (Nov. 6, 2000), DOT ensures that Federally Recognized Tribes (Tribes) are given the opportunity to provide meaningful and timely input regarding proposed Federal actions that have the potential to affect uniquely or significantly their respective Tribes. The Bureau has not identified any unique or significant effects, environmental or otherwise, on Tribes resulting from this proposed rule.
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOT has examined this proposed rule and has determined that it would not preempt State law and 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. No further action is required by Executive Order 13132.
Credit, Highways and roads, Loan programs—transportation, Mass transportation, Railroads.
Loan programs—transportation, Railroads.
In consideration of the foregoing, the Bureau proposes to amend Subtitle B of title 49 of the Code of Regulations, to read as follows:
Secs. 1501
(a) The interest rate on a secured loan will be not less than the rate on United States Treasury securities of a similar maturity to the maturity of the secured loan on the date of the execution of the loan agreement, except as provided in paragraph (b) of this section and chapter 6 of title 23 of the United States Code.
(b) If, on the date of the execution of the loan agreement, the United States Treasury does not post the rate of securities of a similar maturity to the maturity of the secured loan, the interest rate on any secured loan with both a final maturity date that is more than 35 years after the date of substantial completion of the project, and a loan term that is more than 40 years, will be equal to not less than the rate on thirty-to-forty year Treasury securities plus an annual interest rate adjustment. The annual interest rate adjustment will be, cumulatively:
(i) 1.4 basis points for each year of the loan term after year 40 to, but not including, year 51;
(ii) 0.4 basis points for each year of the loan term from year 51 to, but not including, year 71; and
(iii) 0.2 basis points for each year of the loan term from year 71 to year 100.
(c) For purposes of this section, “loan term” means the period beginning on the date of the execution of the loan agreement and ending on the final maturity date.
49 U.S.C. 22401, 22402, 22403, 22404, 22405, 22406; 49 CFR 1.49.
(a) The interest rate on a direct loan will be not less than the rate on United States Treasury securities of a similar maturity of the direct loan on the date of the execution of the loan agreement, except as described in paragraph (b) of this section and in § 260.17(d).
(b) If, on the date of the execution of the loan agreement, the United States Treasury does not post the rate of securities of a similar maturity of the direct loan, the interest rate on any direct loan with both a final maturity date that is more than 35 years after the date of substantial completion of the project, and a loan term that is more than 40 years, will be equal to not less than the rate on thirty-to-forty year Treasury securities plus an annual interest rate adjustment. The annual interest rate adjustment will be, cumulatively:
(i) 1.4 basis points for each year of the loan term after year 40 to, but not including, year 51;
(ii) 0.4 basis points for each year of the loan term from year 51 to, but not including, year 71; and
(iii) 0.2 basis points for each year of the loan term from year 71 to year 100.
(c) For purposes of this section, “loan term” means the period beginning on the date of the execution of the loan agreement and ending on the final maturity date.
(d) Positive Credit Risk Premium.
(1) Where the Credit Risk Premium determined pursuant to paragraph (a) of this section is a positive amount, the interest rate on the direct loan will be equal to not less than the rate set pursuant to section 260.9 plus an interest rate adjustment sufficient to result in a Credit Risk Premium of zero dollars.
(2) Paragraph (d)(1) of this section shall apply to a direct loan or loan guarantee only so long as the Act requires the Secretary to return Credit Risk Premiums paid on that loan or loan guarantee to the original source.
Fish and Wildlife Service, Interior.
Notification of petition findings and initiation of status reviews.
We, the U.S. Fish and Wildlife Service (Service), announce 90-day findings on 10 petitions to add species to the Lists of Endangered and Threatened Wildlife and Plants under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that the petitions to list
These findings were made on January 25, 2024. As we commence our status reviews, we seek any new information concerning the status of, or threats to,
(1)
(2)
We request that you send information only by the methods described above. We will post all information we receive on
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.
You may submit your comments and materials concerning the status of, or threats to,
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing these findings, will be
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations in title 50 of the Code of Federal Regulations (50 CFR part 424) set forth the procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants (Lists or List) in 50 CFR part 17. Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to add a species to the List (
Our regulations establish that substantial scientific or commercial information with regard to a 90-day petition finding refers to credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted (50 CFR 424.14(h)(1)(i)). A positive 90-day petition finding does not indicate that the petitioned action is warranted; the finding indicates only that the petitioned action may be warranted and that a full review should occur.
A species may be determined to be an endangered species or a threatened species because of one or more of the five factors described in section 4(a)(1) of the Act (16 U.S.C. 1533(a)(1)). The five factors are:
(a) The present or threatened destruction, modification, or curtailment of its habitat or range (Factor A);
(b) Overutilization for commercial, recreational, scientific, or educational purposes (Factor B);
(c) Disease or predation (Factor C);
(d) The inadequacy of existing regulatory mechanisms (Factor D); and
(e) Other natural or manmade factors affecting its continued existence (Factor E).
These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.
We use the term “threat” to refer in general to actions or conditions that are known to, or are reasonably likely to, affect individuals of a species negatively. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition, or the action or condition itself. However, the mere identification of any threat(s) may not be sufficient to compel a finding that the information in the petition is substantial information indicating that the petitioned action may be warranted. The information presented in the petition must include evidence sufficient to suggest that these threats may be affecting the species to the point that the species may meet the definition of an endangered species or threatened species under the Act.
If we find that a petition presents such information, our subsequent status review will evaluate all identified threats by considering the individual-, population-, and species-level effects and the expected response by the species. We will evaluate individual threats and their expected effects on the species, then analyze the cumulative effect of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that are expected to have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts that may ameliorate threats. It is only after conducting this cumulative analysis of threats and the actions that may ameliorate them, and the expected effect on the species now and in the foreseeable future, that we can determine whether the species meets the definition of an endangered species or threatened species under the Act.
If we find that a petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, the Act requires that we promptly commence a review of the status of the species, and we will subsequently complete a status review in accordance with our prioritization methodology for 12-month findings (81 FR 49248; July 27, 2016).
We note that designating critical habitat is not a petitionable action under the Act. Petitions to designate critical habitat (for species without existing critical habitat) are reviewed under the Administrative Procedure Act (5 U.S.C. 551
The petition findings contained in this document are listed in the tables below, and the basis for each finding, along with supporting information, is available on
On July 6, 2023, we received a petition dated July 5, 2023, from the Center for Biological Diversity and Monitor Conservation Research Society, requesting that
We reviewed the petition, sources cited in the petition, and other readily available information (within the constraints of the Act and 50 CFR 424.14(h)(1)). We considered the credible information that the petition provided regarding effects of the threats that fall within factors under the Act's section 4(a)(1) as potentially ameliorated or exacerbated by any existing regulatory mechanisms or conservation efforts. Based on our review of the petition and readily available information regarding habitat loss and degradation (Factor A), we find that the petition presents substantial scientific or commercial information indicating that listing
The basis for our finding on this petition and other information regarding our review of the petition can be found at
On July 6, 2023, we received a petition dated July 5, 2023, from the Center for Biological Diversity and Monitor Conservation Research Society, requesting that
We reviewed the petition, sources cited in the petition, and other readily available information (within the constraints of the Act and 50 CFR 424.14(h)(1)). We considered the credible information that the petition provided regarding effects of the threats that fall within factors under the Act's section 4(a)(1) as potentially ameliorated or exacerbated by any existing regulatory mechanisms or conservation efforts. Based on our review of the petition and readily available information regarding habitat loss and degradation (Factor A), we find that the petition presents substantial scientific or commercial information indicating that listing
The basis for our finding on this petition and other information regarding our review of the petition can be found at
Hickory Nut Gorge green salamander (
On July 13, 2022, we received a petition from the Center for Biological Diversity and Defenders of Wildlife requesting that the Hickory Nut Gorge green salamander (
We reviewed the petition, sources cited in the petition, and other readily available information. We considered the credible information that the petition provided regarding effects of the threats that fall within factors under the Act's section 4(a)(1) as potentially ameliorated or exacerbated by any existing regulatory mechanisms or conservation efforts. Based on our review of the petition and readily available information regarding development, including recreation and roads (Factor A), we find that the petition presents substantial scientific
The basis for our finding on this petition and other information regarding our review of the petition can be found at
Pygmy rabbit (
On March 6, 2023, we received a petition from the Western Watersheds Project, Center for Biological Diversity, WildEarth Guardians, and the Defenders of Wildlife requesting that the pygmy rabbit (
We reviewed the petition, sources cited in the petition, our 2010 not warranted 12-month finding (75 FR 60516; September 30, 2010), and other readily available information. The Columbia basin DPS of the pygmy rabbit has been listed as endangered since 2003. We considered the credible information that the petition provided regarding effects of the threats that fall within factors under the Act's section 4(a)(1) as potentially ameliorated or exacerbated by any existing regulatory mechanisms or conservation efforts. Based on our review of the petition and readily available information regarding the compound effects of fire, cheatgrass, and climate change (Factors A and E), we find that the petition presents substantial scientific or commercial information indicating that listing the pygmy rabbit rangewide, as a threatened species or an endangered species, may be warranted. The petitioners also presented information suggesting livestock grazing, oil and gas development, and disease may be threats to the pygmy rabbit. We will fully evaluate these potential threats during our 12-month status review, pursuant to the Act's requirement to review the best scientific and commercial information available when making that finding.
The basis for our finding on this petition and other information regarding our review of the petition can be found at
Railroad Valley toad (
On May 5, 2022, we received a petition from the Center for Biological Diversity requesting that the Railroad Valley toad (
We reviewed the petition, sources cited in the petition, and other readily available information. We considered the credible information that the petition provided regarding effects of the threats that fall within factors under the Act's section 4(a)(1) as potentially ameliorated or exacerbated by any existing regulatory mechanisms or conservation efforts. Based on our review of the petition and readily available information regarding oil and gas extraction via hydraulic fracturing (Factor A) and lithium production (Factor A), we find that the petition presents substantial scientific or commercial information indicating that listing the Railroad Valley toad as a threatened species or an endangered species may be warranted. The petitioners also presented information suggesting livestock grazing, infrastructure, mining, disease, nonnative vegetation, climate change, and stochastic events may be threats to the Railroad Valley toad. We will fully evaluate these potential threats during our 12-month status review, pursuant to the Act's requirement to review the best scientific and commercial information available when making that finding.
The basis for our finding on this petition and other information regarding our review of the petition can be found at
Southern Plains bumble bee (
On July 27, 2022, we received a petition from the Center for Biological Diversity requesting that the Southern Plains bumble bee (
We reviewed the petition, sources cited in the petition, and other readily available information. We considered the credible information that the petition provided regarding effects of the threats that fall within factors under the Act's section 4(a)(1) as potentially ameliorated or exacerbated by any existing regulatory mechanisms or conservation efforts. Based on our review of the petition and readily available information regarding agriculture practices (Factor A) and pesticide use (Factor E), we find that the petition presents substantial scientific or commercial information indicating that listing the Southern Plains bumble bee as a threatened species or endangered species may be warranted. The petitioners also presented information suggesting nonnative
The basis for our finding on this petition and other information regarding our review of the petition can be found at
Southwest spring firefly (
On March 30, 2023, we received a petition from The Xerces Society for Invertebrate Conservation and the New Mexico BioPark Society requesting that the Southwest spring firefly (
We reviewed the petition, sources cited in the petition, and other readily available information. We considered the credible information that the petition provided regarding effects of the threats that fall within factors under the Act's section 4(a)(1) as potentially ameliorated or exacerbated by any existing regulatory mechanisms or conservation efforts. Based on our review of the petition and readily available information regarding loss and degradation of wetland habitats (Factor A), livestock grazing (Factor A), mining (Factor A), climate change (Factor E), and light pollution (Factor E), we find that the petition presents substantial scientific or commercial information indicating that listing the Southwest spring firefly as an endangered species may be warranted. We will fully evaluate these potential threats during our 12-month status review, pursuant to the Act's requirement to review the best scientific and commercial information available when making that finding.
The basis for our finding on this petition, and other information regarding our review of the petition, can be found at
White-margined penstemon (
On March 16, 2023, we received a petition from the Center for Biological Diversity requesting that white-margined penstemon (
We reviewed the petition, sources cited in the petition, and other readily available information. We considered the credible information that the petition provided regarding effects of the threats that fall within factors under the Act's section 4(a)(1) as potentially ameliorated or exacerbated by any existing regulatory mechanisms or conservation efforts. Based on our review of the petition, sources cited in the petition, and readily available information regarding habitat loss and degradation due to land development and off-highway vehicle use (Factor A) and effects of climate change (Factor E), we find that the petition presents substantial scientific or commercial information indicating that listing the white-margined penstemon as a threatened species or endangered species may be warranted. The petitioners also presented information suggesting cattle grazing (Factor A), insect and mammalian predation (Factor C), invasive plant species (Factor E), and pollinator limitation (Factor E) may be threats to the white-margined penstemon. We will fully evaluate these potential threats during our 12-month status review, pursuant to the Act's requirement to review the best scientific and commercial information available when making that finding.
The basis for our finding on this petition, and other information regarding our review of the petition, can be found at
Yellow-spotted woodland salamander (
On August 24, 2022, we received a petition from the Center for Biological Diversity, Appalachian Mountain Advocates, Appalachian Voices, Citizens Coal Council, The Clinch Coalition, Coal River Mountain Watch, Dogwood Alliance, Forest Keeper, Heartwood, Kentucky Heartwood, and Kentucky Waterways Alliance requesting that yellow-spotted woodland salamander (
We reviewed the petition, sources cited in the petition, and other readily available information. We considered the credible information that the petition provided regarding effects of the threats that fall within factors under section 4(a)(1) as potentially ameliorated or exacerbated by any existing regulatory mechanisms or conservation efforts. Based on our review of the petition and readily available information regarding mining operations (Factor A), land clearing (Factor A) and climate change (Factor E), we find that the petition presents substantial scientific or commercial information indicating that listing the yellow-spotted woodland salamander as a threatened species or an endangered species may be warranted. The petitioners also presented information suggesting that collection, predation, disease, invasive species, pollution, and recreation may be threats to the yellow-spotted woodland salamander. We will
The basis for our finding on this petition and other information regarding our review of the petition can be found at
Eastern hellbender (
On March 31, 2022, we received a petition from Jenna M. Hauck requesting that the eastern hellbender (
We reviewed the petition, sources cited in the petition, and other readily available information (within the constraints of the Act and 50 CFR 424.14(h)(1)). We considered the credible information that the petition provided regarding the individual and cumulative effects of threats that fall within factors under the Act's section 4(a)(1) as potentially ameliorated or exacerbated by any existing regulatory mechanisms or conservation efforts. Based on our review of the petition, sources cited in the petition, and other readily available information, we find that the petition does not provide substantial scientific or commercial information indicating that listing the eastern hellbender as a threatened species may be warranted. All of the information provided by the petitioner was already considered in our 2019 12-month finding for the species in which we determined that listing is not warranted (84 FR 13223; April 4, 2019). We are not initiating a status review of this species in response to this petition. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see
The basis for our finding on this petition, and other information regarding our review of the petition can be found at
On the basis of our evaluation of the information presented in the petitions under sections 4(b)(3)(A) of the Act, we have determined that the petitions summarized above for
The primary authors of this document are staff members of the Ecological Services Program, U.S. Fish and Wildlife Service.
The authority for these actions is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Agency for International for Development (USAID).
Notice of new privacy act system of records.
Pursuant to the provisions of the Privacy Act of 1974 (section 522a of title 5 of the United States Code [U.S.C.]), the United States Agency for International Development (USAID) proposes to establish a new System of Records titled, “USAID 36: Private Sector Engagement Records.” The purpose of the system is to administer USAID's Private Sector Engagement Policy and enhance the risk management activities in support of its trade and investment support services. This System of Records includes a Customer Relationship Management (CRM) tool that will function as a data warehouse that maintains information on business entities and their representatives that express interest in supporting or potentially supporting USAID's mission in foreign development. This information will be used by USAID to enhance transparency, improve coordination, as well as for monitoring and evaluation by USAID program offices.
Submit comments on or before February 26, 2024. This modified system of records will be effective February 26, 2024 upon publication. The Routine Uses are effective at the close of the comment period.
You may submit comments:
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Ms. Celida A. Malone, USAID Privacy Program at United States Agency for International Development, Bureau for Management, Office of the Chief Information Officer, Information Assurance Division: ATTN: USAID Privacy Program, 1300 Pennsylvania Avenue NW, Washington, DC 20523, or by phone number at 202-916-4605.
The Private Sector Engagement (PSE) System of Records collects information on businesses, vendors, foundations and philanthropies, business associations, labor organizations, investment entities, and other private sector entities and their representatives that express interest in doing business in USAID-supported countries. USAID uses this information to improve collaboration and increase two-way trade and investment between the United States and USAID-supported countries, and to catalyze private sector resources to advance, sustain, and support U.S. global development and humanitarian assistance objectives.
USAID engages private sector entities in a variety of ways including, but not limited to: facilitating investment and transactions in beneficiary countries; co-funding public-private partnership programs and activities; reducing investment and programmatic risks; connecting businesses with U.S. government trade and investment support services; collaborating on public policy issues of mutual interest in USAID presence countries; exchanging information, perspectives, and analysis on issues of mutual interest; and advancing U.S. global development and humanitarian assistance objectives through private-sector investment and partnership.
This System of Records is designed to improve this engagement and enhance USAID's ability to manage its relationships with companies and other private sector entities interested in supporting U.S. global development and humanitarian assistance objectives in USAID supported countries.
USAID-36, Private Sector Engagement Records.
Sensitive But Unclassified.
United States Agency for International Development (USAID), 1300 Pennsylvania Avenue NW, Washington, DC 20523; Salesforce, 7600 Doane Drive, Manassas, VA 20109; and other USAID facilities in the United States and throughout the world.
Managing Director, Relationship Management Systems, USAID Private Sector Engagement Hub, Bureau for Inclusive Growth, Partnerships, and Innovation (IPI/PSE), United States Agency for International Development (USAID), 1300 Pennsylvania Avenue NW, Washington, DC 20004. Email:
The Foreign Assistance Act of 1961 (FAA), as amended; and African Growth and Opportunity Act (AGOA) and Millennium Challenge Act Modernization Act (MCA Modernization Act), Public Law 115-167 Title II (2018).
The purpose of the system is to administer USAID's Private Sector Engagement Policy and enhance the risk management activities in support of its trade and investment support services. This System of Records includes a Customer Relationship Management (CRM) tool that will function as a data warehouse that maintains information on the directors, officers and employees of business entities that express interest in supporting or potentially supporting USAID's mission in foreign development. This information will be used by USAID to enhance transparency, improve coordination, as well as for monitoring and evaluation by USAID program offices.
This System of Records contains information about representatives of
The system maintains personal and commercial information, which includes:
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Information in this system is obtained from: authorized representatives of participating businesses and entities; employees of participating Federal agencies; existing USAID information systems; commercially licensed, publicly-available sources of business information; and U.S. Federal government data sources, registries, and listings, such as but not limited to the U.S. Department of Commerce Consolidated Screening List.
This information may be collected through a variety of electronic and non-electronic means, including: meetings and information that have been volunteered by the organization and individual (
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the information contained in this system may be disclosed to authorized entities, as is determined to be relevant and necessary, outside USAID as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
(1) To third-party service providers contracted by USAID to facilitate and/or coordinate public-private collaboration and cooperation events and activities on behalf of USAID, such as but not limited to training, outreach, marketing, and matchmaking activities.
(2) To an agency or organization, including the USAID's Office of Inspector General, for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
(3) To the Department of Justice or other appropriate United States Government Agency when the records are arguably relevant to a proceeding in a court or other tribunal in which USAID or a USAID official, in his or her official capacity, is a party or has an interest, or when the litigation is likely to affect USAID.
(4) In the event of an indication of a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by statute or particular program pursuant thereto, to the appropriate agency, whether federal, state, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation or order involved.
(5) To appropriate officials and employees of a federal agency or entity when the information is relevant and necessary to a decision concerning the hiring or retention of an employee; the issuance of a security clearance; the reporting of an investigation of an employee; the assignment, detail, or deployment of an employee; the letting of a contract; or the approval of a grant or other benefits.
(6) To provide information to a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
(7) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, or in connection with criminal proceedings, when the USAID is a party to the proceeding or has a significant interest in the proceeding.
(8) To the National Archives and Records Administration for the purposes of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
(9) To disclose information to the Equal Employment Opportunity Commission when requested in connection with investigations into alleged or possible discrimination practices in the Federal sector, compliance by Federal agencies with the Uniform Guidelines on Employee Selection Procedures or other functions vested in the Commission and to otherwise ensure compliance with the provisions of 5 U.S.C. 7201.
(10) To appropriate agencies, entities, and persons when: (a) USAID suspects or has confirmed that there has been a breach of the system of records; (b) USAID has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, USAID (including its information systems, programs, and operations), the Federal Government, or national security; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with USAID's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
(11) To another Federal Department or Agency or Federal entity, when USAID determines information from this system of records is reasonably necessary to assist the recipient Department or Agency or entity in: (a) responding to a suspected or confirmed breach; or (b) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs and operations), the Federal Government, or national security, that might result from a suspected or confirmed breach.
(12) To another agency or agent of a Government jurisdiction within or under the control of the U.S. lawfully engaged in national security or homeland defense when disclosure is undertaken for intelligence, counterintelligence activities (as defined by 50 U.S.C. 3003(3)), counterterrorism, homeland security, or related law enforcement purposes, as authorized by U.S. law or Executive Order.
(13) To either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint
All information contained in the System of Records is stored in electronic format. The data is encrypted at rest and in transit using Agency-approved, Federal Information Processing Standards (FIPS) compliant encryption mechanisms consistent with policy directives in USAID Automated Directive System 545,
USAID's staff retrieves Private Sector Engagement records by entity name, affiliate/representative name, USAID assigned identifiers, and any other identifying data specified in the “Categories of Records.”
Private Sector Engagement records are retained, retired, and destroyed in accordance with the USAID Automated Directive System, Chapter 502, The USAID Records Management Program, and the USAID Records Disposition Schedules as approved by the National Archives and Records Administration (NARA). More specific information may be obtained by emailing USAID's Records Office at
Safeguards are implemented in accordance with the Privacy Act and the Federal Information Security Modernization Act of 2014 (FISMA), as well as the applicable system and business policies and procedures. These safeguards are evaluated on a recurring basis to ensure continued effective protections of the information contained within this System of Records.
To minimize the risk of unauthorized access, the System of Records employs various security controls, including explicit user access approval, multi-factor authentication, role-based access controls, data encryption, and routine monitoring of system and user activity used to maintain administrative records and perform other functions inherent in the administration and security of these records.
USAID has implemented controls to minimize the risk of compromising the information that is being processed, collected, transmitted and stored. Safeguards for systems, data, facilities, and storage containers/media include, but are not limited to the following administrative, technical and physical safeguards:
• Administrative—Security and Privacy program management functions including trained staff, implemented risk management frameworks and strategies, policies and procedures; security and privacy awareness and training; incident response and contingency plans; periodic privacy and security assessments; user agreements and access rules; and personnel security clearances and/or background checks as required.
• Technical—Access controls to limit access to only authorized personnel and to allow access only to the information required to perform official duties as assigned; audit controls to monitor activities on systems containing PII or other sensitive information; data protection which includes encryption of data-at-rest and in-transit; and person and/or entity identification and authentication to prevent unauthorized access to information or information systems.
• Physical Controls—Facility access controls include one or more of the following: guards and locked gates, doors, cabinets, etc. to limit physical access to systems, facilities, rooms, or other areas where sensitive data is stored.
Under the Privacy Act, individuals may request access to records about themselves. These individuals must be limited to citizens of the United States or aliens lawfully admitted for permanent residence. If a Federal department or agency, or a person who is not the individual who is the subject of the records, requests access to records about an individual, the written consent of the individual who is the subject of the records is required.
Individuals seeking access to information about themselves contained in this system of records should address inquiries to the Bureau for Management, Office of Management Services, Information and Records Division (M/MS/IRD), USAID Annex—Room 2.4.0C, 1300 Pennsylvania Avenue NW, Washington, DC 20523. The requester may complete and sign a USAID Form 507-1, Certification of Identity Form, or submit signed, written requests that should include the individual's full name, current address, telephone number, and this System of Records Notice number. In addition, the requester must provide either a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
The USAID rules for accessing records, contesting contents, and appealing initial agency determinations are contained in 22 CFR 212 or may be obtained from the program manager or system owner.
Individuals seeking to determine if information about themselves is contained in this System of Records should address inquiries to the Bureau for Management, Office of Management Services, Information and Records Division (M/MS/IRD), USAID Annex—Room 2.4.0C, 1300 Pennsylvania Avenue NW, Washington, DC 20523. Individuals may complete and sign a USAID Form 507-1, Certification of Identity Form, or submit signed, written requests that should include the individual's full name, current address, and telephone number. In addition, the requester must provide either a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
None.
None.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding; whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by February 26, 2024 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number, and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Without these activities, P. ramorum would potentially spread spread to unaffected forests, adversely impacting the ecosystem balances, foreign/domestic nursery stocks, and lumber markets.
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Missouri Advisory Committee (Committee) will hold a meeting on Thursday, February 8, 2024, at 3:00 p.m. Central time. The purpose of the meeting is for the Committee to evaluate testimony gathered during their current study and decide if more is needed.
The meeting will take place on Thursday, February 8, 2024, at 3:00 p.m. Central Time.
David Barreras, DFO, at
Members of the public may listen to this discussion through the above call in number. An open comment period will be provided to allow members of the public to make a statement as time allows. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Individual who is deaf, deafblind and hard of hear hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and confirmation code.
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 230 S Dearborn, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324, or emailed to Corrine Sanders at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via
I. Welcome and Roll Call
II. Chair's Comments
III. Discuss Curriculum Testimony
IV. Public Comment
V. Next Steps
VI. Adjournment
U.S. Commission on Civil Rights.
Notice of meetings.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the Ohio Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a series of public meetings via Zoom. The purpose of these meetings is discuss, revise, and vote, as needed, on matters related to the Committee's project on the source of income discrmination in Ohio housing.
• Monday, February 5, 2024, from 3:00 p.m.-4:00 p.m. Eastern Time.
• Friday, March 8, 2024, from 12:00 p.m.-1:00 p.m. Eastern Time.
• Thursday, April 18, 2024, from 12:00 p.m.-1:00 p.m. Eastern Time.
These meetings will be held via Zoom.
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Melissa Wojnaroski, Designated Federal Officer, at
These Committee meetings are available to the public through the registration links above. Any interested members of the public may attend these meetings. An open comment period will be provided to allow members of the public to make oral statements as time allows. Pursuant to the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at these meetings. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning is available by selecting “CC” in the meeting platform. To request additional accommodations, please email
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the scheduled meeting. Written comments may be emailed to Melissa Wojnaroski at
Records generated from these meetings may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after each meeting. Records of the meetings will be available via
Commission on Civil Rights.
Notice; update webinar registration links.
The Commission on Civil Rights published a notice in the
Brooke Peery, (202) 701-1376,
In the
U.S. Commission on Civil Rights.
Notice of public meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the North Carolina Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a public meeting via Zoom at 12 p.m. ET on Wednesday, March 20, 2024. The purpose of this meeting is to discuss the Committee's project,
Wednesday, March 20, 2024, from 12:00 p.m.—1:30 p.m. eastern time.
The meeting will be held via Zoom Webinar.
Victoria Moreno, Designated Federal Officer, at
This committee meeting is available to the public through the registration link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email Liliana Schiller, Support Services Specialist, at
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to Victoria Moreno at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
U.S. Commission on Civil Rights.
Notice of public meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the North Carolina Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a public meeting via Zoom at 12 p.m. ET on Wednesday, May 29, 2024. The purpose of this meeting is to discuss the Committee's project,
Wednesday, May 29, 2024, from 12 p.m.-1:30 p.m. eastern time.
The meeting will be held via Zoom Webinar.
Victoria Moreno, Designated Federal Officer, at
This committee meeting is available to the public through the registration link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email Liliana Schiller, Support Services Specialist, at
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to Victoria Moreno at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
U.S. Commission on Civil Rights.
Notice of public meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Colorado Advisory Committee (Committee) to the U.S. Commission on Civil Rights will convene a monthly virtual business meeting on Wednesday, February 21, 2024, at 3 p.m. Mountain Time. The purpose of the meeting is to continue working on its project on public school attendance zones in Colorado.
Wednesday, February 21, 2024, at 3 p.m. Mountain Time.
The meeting will be held via Zoom.
Barbara Delaviez, Designated Federal Official at
These committee meeting is available to the public through the meeting link above. Any interested member of the public may listen to the meeting. At the meeting, an open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meetings. Written comments may be emailed to Barbara Delaviez at
Records generated from these meetings may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meetings. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Notice of public meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the North Carolina Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a public meeting via Zoom at 12:00 p.m. ET on Tuesday, April 23, 2024. The purpose of this meeting is to discuss the Committee's project,
Tuesday, April 23, 2024, from 12:00 p.m.-1:30 p.m. eastern time.
The meeting will be held via Zoom Webinar.
Victoria Moreno, Designated Federal Officer, at
This committee meeting is available to the public through the registration link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email Liliana Schiller, Support Services Specialist, at
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to Victoria Moreno at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
Commission on Civil Rights.
Announcement of briefing.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Mississippi Advisory Committee (Committee) will hold a briefing on Wednesday, February 21, 2024 at 1:00 p.m. Central time. The Committee will host a virtual briefing on education funding in the state of Mississippi.
The briefing will take place on Wednesday February 21, 2024, at 1:00 p.m. Central Time.
David Barreras, DFO, at
Members of the public may listen to this discussion through the above call-in number. An open comment period will be provided to allow members of the public to make a statement as time allows. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Individuals who are deaf, deafblind and hard of hear hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and confirmation code.
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 230 S Dearborn, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324 or emailed to Corrine Sanders at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a briefing of the Arizona Advisory Committee (Committee) to the U.S. Commission on Civil Right will convene via ZoomGov on Friday, February 2, 2024, from 3:00 p.m.-4:30 p.m. Arizona Time. The purpose of the briefing is to collect testimony related to racial and ethnic disparities in pediatric healthcare in the state.
The briefing will take place on:
• Friday, February 2, 2024, from 3:00 p.m.-4:30 p.m. Arizona Time.
Ana Fortes, DFO, at
Committee meetings are available to the public through the videoconference link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email Angelica Trevino, Support Services Specialist, at
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments can be sent via email to Ana Fortes (DFO) at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
U.S. Commission on Civil Rights.
Notice of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the North Carolina Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a public meeting via Zoom at 12:00 p.m. ET on Tuesday, February 20, 2024. The purpose of this meeting is to discuss the Committee's project,
Tuesday, February 20, 2024, from 12:00 p.m.-1:30 p.m. Eastern Time.
The meeting will be held via Zoom Webinar.
Victoria Moreno, Designated Federal Officer, at
This committee meeting is available to the public through the registration link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email Liliana Schiller, Support Services Specialist, at
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to Victoria Moreno at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
U.S. Commission on Civil Rights.
Notice of public meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the North Carolina Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a public meeting via Zoom at 12 p.m. ET on Tuesday, February 20, 2024. The purpose of this meeting is to discuss the Committee's project,
Tuesday, February 20, 2024, from 12 p.m.-1:30 p.m. eastern time.
The meeting will be held via Zoom Webinar.
Victoria Moreno, Designated Federal Officer, at
This committee meeting is available to the public through the registration link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email Liliana Schiller, Support Services Specialist, at
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to Victoria Moreno at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
First Responder Network Authority (FirstNet Authority), National Telecommunications and Information Administration (NTIA), U.S. Department of Commerce.
Announcement of meeting.
The FirstNet Authority Board and Board Finance and Investment Committee will convene a virtual meeting on January 29, 2024.
January 29, 2024; 3 p.m. to 4 p.m. Eastern Daylight Time (EDT).
The meeting will be held virtually. Members of the public are not able to attend in-person but may listen to the meeting and view the presentation by visiting the URL:
If you experience technical difficulty, please contact the FirstNet Authority Customer Support Service Desk at
Pursuant to section 766.24 of the Export Administration Regulations, 15 CFR parts 730 through 774 (2023) (“EAR” or “the Regulations”),
On August 2, 2022, I signed an order denying the export privileges of Venezuela-based cargo airline Empresa de Transporte Aéreocargo del Sur, S.A., a/k/a Aerocargo del Sur Transportation Company, a/k/a EMTRASUR (“EMTRASUR”) for a period of 180 days on the ground that issuance of the order was necessary in the public interest to prevent an imminent violation of the Regulations. The order was issued
On December 22, 2023, BIS, through OEE, submitted a written request for renewal of the TDO that issued on July 25, 2023. The written request was made more than 20 days before the TDO's scheduled expiration. A copy of the renewal request was sent to EMTRASUR in accordance with sections 766.5 and 766.24(d) of the Regulations. No opposition to the renewal of the TDO has been received.
Pursuant to section 766.24, BIS may issue an order temporarily denying a respondent's export privileges upon a showing that the order is necessary in the public interest to prevent an “imminent violation” of the Regulations, or any order, license or authorization issued thereunder. 15 CFR 766.24(b)(1) and 766.24(d). “A violation may be `imminent' either in time or degree of likelihood.” 15 CFR 766.24(b)(3). BIS may show “either that a violation is about to occur, or that the general circumstances of the matter under investigation or case under criminal or administrative charges demonstrate a likelihood of future violations.”
OEE's request for renewal is based upon the facts underlying the issuance of the initial TDO and evidence developed during this investigation, which demonstrate continued disregard for U.S. export controls and the terms of a preexisting TDO. As noted in OEE's initial request for a temporary denial order, EMTRASUR is a subsidiary of Consorcio Venezolano de Industrias Aeronauticas Y Servicios Aereos, S.A., a/k/a CONVIASA (“CONVIASA”), a Venezuelan state-owned airline. On or about February 7, 2020, U.S. Department of the Treasury's Office of Foreign Assets Control (“OFAC”) added CONVIASA to the list of Specially Designated Nationals (“SDN”) pursuant to Executive Order (E.O.) 13884.
The initial TDO, issued on August 2, 2022, was based on evidence that EMTRASUR engaged in conduct prohibited by a TDO that had been previously issued against Iranian airline Mahan Air a/k/a Mahan Airlines a/k/a Mahan Airways (“Mahan Air”) and the Regulations when EMTRASUR, through its parent company, acquired custody and/or control from Mahan Air of a U.S-origin Boeing 747 aircraft bearing manufacturer's serial number 23413 (“MSN 23413”), an item subject to the EAR and classified under ECCN 9A991, in or around October 2021.
Moreover, the initial TDO, issued on August 2, 2022, was also based on evidence that EMTRASUR had continued to use MSN 23413 on flights into Iran and Russia in violation of General Prohibition 10, which (among other restrictions) prohibits the continued use of an item that was known to have been exported or reexported in violation of the EAR.
The January 26, 2023 and July 2023 renewal orders outlined evidence demonstrating that EMTRASUR's acquisition of MSN 23413 from Mahan Air was in violation of the TDO previously issued against Mahan Air as well as evidence that certain of MSN 23413's parts, including spare parts which appear to be U.S-origin, bear the markings and logos of Mahan and/or CONVIASA. Accordingly, any attempts by EMTRASUR to operate the aircraft or to return it to Venezuela, as well as any efforts EMTRASUR may take to maintain it, would violate General Prohibition 10.
Moreover, as detailed in the January 26, 2023 and July 25, 2023 renewal orders, BIS's investigation indicates that Venezuelan parties took affirmative actions to secure the release of the aircraft from its detention in Argentina, even after the issuance of the August 2, 2022, TDO against EMTRASUR. BIS also offered evidence that on May 3, 2023, United States District Judge Randolph D. Moss of the United States District Court for the District of Columbia issued a final order of forfeiture as to the aircraft, vesting all rights to MSN 23413 with the United States.
Based upon the violations by EMTRASUR, its disregard for the Regulations and the previously issued TDO against Mahan Air, and the attempts by the Venezuelan government to reacquire control of MSN 23413, there are concerns of future violations of the EAR. These concerns are heightened because any subsequent actions taken with regard to MSN 23413 for or on behalf of EMTRASUR would violate the EAR, including, but not limited to, its refueling, maintenance, repair, or the provision of spare parts or services.
Under the applicable standard set forth in section 766.24 of the Regulations and my review of the entire record, I find that the evidence presented by BIS convincingly demonstrates that EMTRASUR has acted in violation of the Regulations and the TDO; that such violations have been significant, deliberate and covert; and that given the foregoing and the nature of the matters under investigation, there is a likelihood of imminent violations. Therefore, renewal of the TDO is necessary in the public interest to prevent imminent violation of the Regulations and to give notice to companies and individuals in the United States and abroad that they should avoid dealing with EMTRASUR in connection with export and reexport transactions involving items subject to the Regulations and in connection with any other activity subject to the Regulations.
A. Applying for, obtaining, or using any license (except directly related to safety of flight), license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR except directly related to safety of flight and authorized by BIS pursuant to section 764.3(a)(2) of the Regulations, or engaging in any other activity subject to the EAR except directly related to safety of flight and authorized by BIS pursuant to section 764.3(a)(2) of the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or from any other activity subject to the EAR except directly related to safety of flight and authorized by BIS pursuant to section 764.3(a)(2) of the Regulations.
A. Export, reexport, or transfer (in-country) to or on behalf of EMTRASUR any item subject to the EAR except directly related to safety of flight and authorized by BIS pursuant to section 764.3(a)(2) of the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by EMTRASUR of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby EMTRASUR acquires or attempts to acquire such ownership, possession or control except directly related to safety of flight and authorized by BIS pursuant to section 764.3(a)(2) of the Regulations;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from EMTRASUR of any item subject to the EAR that has been exported from the United States except directly related to safety of flight and authorized by BIS pursuant to section 764.3(a)(2) of the Regulations;
D. Obtain from EMTRASUR in the United States any item subject to the EAR with knowledge or reason to know that the item will be, or is intended to be, exported from the United States except directly related to safety of flight and authorized by BIS pursuant to section 764.3(a)(2) of the Regulations; or
E. Engage in any transaction to service any item subject to the EAR that has been or will be exported from the United States and which is owned, possessed or controlled by EMTRASUR, or service any item, of whatever origin, that is owned, possessed or controlled by EMTRASUR if such service involves the use of any item subject to the EAR that has been or will be exported from the United States except directly related to safety of flight and authorized by BIS pursuant to section 764.3(a)(2) of the Regulations. For purposes of this paragraph, servicing means installation, maintenance, repair, modification, or testing.
In accordance with the provisions of sections 766.24(e) of the EAR, EMTRASUR may, at any time, appeal this Order by filing a full written statement in support of the appeal with the Office of the Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 South Gay Street, Baltimore, Maryland 21202-4022.
In accordance with the provisions of section 766.24(d) of the EAR, BIS may seek renewal of this Order by filing a written request not later than 20 days before the expiration date. A renewal request may be opposed by EMTRASUR as provided in section 766.24(d), by filing a written submission with the Assistant Secretary of Commerce for Export Enforcement, which must be received not later than seven days before the expiration date of the Order.
A copy of this Order shall be provided to EMTRASUR and shall be published in the
This Order is effective immediately and shall remain in effect for 180 days.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that polyester textured yarn (yarn) from India was not sold in the United States at less than normal value (NV) during the period of review (POR) January 1, 2022, through December 31, 2022. We invite interested parties to comment on these preliminary results of review.
Applicable January 25, 2024.
Samantha Kinney, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2285.
On January 10, 2020, Commerce published in the
Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), on September 11, 2023, Commerce extended the deadline for the preliminary results of this review until January 31, 2024.
The merchandise covered by the
Commerce is conducting this administrative review in accordance with section 751(a) of the Act. Export price is calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act.
For a full description of the methodology underlying these preliminary results,
We preliminarily determine that the following estimated weighted-average dumping margin exists for the period January 1, 2022, through December 31, 2022:
Commerce intends to disclose the calculations and analysis performed to interested parties for these preliminary results within five days of any public announcement or if there is no public announcement, within five days after the date of publication of this notice in the
As provided under 19 CFR 351.309(c)(2) and (d)(2), in prior proceedings we have encouraged interested parties to provide an executive summary of their brief that should be limited to five pages total, including footnotes. In this review, we instead request that interested parties provide at the beginning of their briefs a public, executive summary for each issue raised in their briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in the respective case briefs. An electronically filed hearing request must be received successfully in its entirety by Commerce's electronic records system, ACCESS, by 5:00 p.m. Eastern Time within 30 days after the date of publication of this notice. If a request for a hearing is made, Commerce intends to hold a hearing at a time and date to be determined.
Pursuant to section 751(a)(2)(A) of the Act, upon completion of the final results of this administrative review, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise covered by this review.
Where we do not have entered values for all U.S. sales to a particular importer, we will calculate a per-unit assessment rate by aggregating the antidumping duties due for all U.S. sales to that importer and dividing this amount by the total quantity sold to that importer.
For entries of subject merchandise during the POR produced by Reliance/AIL for which it did not know that the merchandise was destined for the United States, we intend to instruct CBP to liquidate unreviewed entries at the all-others rate (
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this administrative review in the
The following cash deposit requirements will be effective upon publication in the
Unless the deadline is otherwise extended, Commerce intends to issue the final results of this administrative review, including the results of its analysis of issues raised by interested parties in any case and rebuttal briefs, within 120 days after the date of publication of these preliminary results in the
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of doubled antidumping duties, and/or an increase in the amount of antidumping duties by the amount of the countervailing duties.
We are issuing and publishing these preliminary results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable January 18, 2024.
Preston Cox, Scarlet Jaldin, or Theodora Mattei, AD/CVD Operations Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5041, 202-482-4275, or (202) 482-4834, respectively.
On December 29, 2023, the U.S. Department of Commerce (Commerce) received a countervailing duty (CVD) petition concerning imports of certain glass wine bottles (wine bottles) from the People's Republic of China (China) filed in proper form on behalf of the U.S. Glass Producers Coalition (the petitioner).
Between January 3 and 11, 2024, Commerce requested supplemental information pertaining to certain aspects of the Petition.
In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (the Act), the petitioner alleges that the Government of China (GOC) is providing countervailable subsidies, within the meaning of sections 701 and 771(5) of the Act, to producers of wine bottles from China, and that such imports are materially injuring, or threatening material injury to, the domestic industry producing wine bottles in the United States. Consistent with section 702(b)(1) of the Act and 19 CFR 351.202(b), for the alleged programs on which we are initiating a CVD investigation, the Petition is supported by information reasonably available to the petitioner.
Commerce finds that the petitioner filed the Petition on behalf of the domestic industry, because the petitioner is an interested party, as
Because the Petition was filed on December 29, 2023, the period of investigation (POI) is January 1, 2022, through December 31, 2022.
The products covered by this investigation are wine bottles from China. For a full description of the scope of this investigation,
On January 3 and 10, 2024, Commerce requested information and clarification from the petitioner regarding the proposed scope to ensure that the scope language in the Petition is an accurate reflection of the products for which the domestic industry is seeking relief.
As discussed in the
Commerce requests that any factual information that the parties consider relevant to the scope of the investigation be submitted during that period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigation may be relevant, the party may contact Commerce and request permission to submit the additional information. All scope comments must also be filed on the record of each of the concurrent AD investigations.
All submissions to Commerce must be filed electronically via Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS), unless an exception applies.
Pursuant to sections 702(b)(4)(A)(i) and (ii) of the Act, Commerce notified the GOC of the receipt of the Petition and provided it an opportunity for consultations with respect to the Petition.
Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) at least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, Commerce shall: (i) poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs Commerce to look to producers and workers who produce the domestic like product. The U.S. International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both Commerce and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, the petitioner does not offer a definition of the domestic like product distinct from the scope of the investigation.
In determining whether the petitioner has standing under section 702(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in the appendix to this notice. To establish industry support, the petitioner provided the 2022 production of the domestic like product for the U.S. producers that support the Petition and compared this to the estimated total 2022 production of the domestic like product for the entire domestic industry.
Our review of the data provided in the Petition, the First General Issues Supplement, the Second General Issues Supplement, and other information readily available to Commerce indicates that the petitioner has established industry support for the Petition.
Because China is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to this investigation. Accordingly, the ITC must determine whether imports of the subject merchandise from materially injure, or threaten material injury to, a U.S. industry.
The petitioner alleges that imports of the subject merchandise are benefiting from countervailable subsidies and that such imports are causing, or threaten to cause, material injury to the U.S. industry producing the domestic like product. In addition, the petitioner alleges that subject imports from China exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The petitioner contends that the industry's injured condition is illustrated by the significant volume and market share of subject imports; underselling and price depression and/or suppression; lost sales and revenues; negative impact on the domestic industry's production and shipments; layoffs; and declining financial performance.
Based upon the examination of the Petition and supplemental responses, we find that they meet the requirements of section 702 of the Act. Therefore, we are initiating a CVD investigation to determine whether imports of wine bottles from China benefit from countervailable subsidies conferred by the GOC. Based on our review of the Petition, we find that there is sufficient information to initiate a CVD investigation on 37 of 38 programs alleged by the petitioner. For a full discussion of the basis for our decision to initiate an investigation of each program,
The petitioner identified 36 companies in China as producers and/or exporters of wine bottles.
On January 16, 2024, Commerce released CBP data on U.S. imports of wine bottles from China, under administrative protective order (APO), to all parties with access to information protected by APO, and indicated that
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on Commerce's website at
In accordance with section 702(b)(4)(A) of the Act and 19 CFR 351.202(f), a copy of the public version of the Petition has been provided to the GOC via ACCESS. To the extent practicable, Commerce will attempt to provide a copy of the public version of the Petition to each exporter named in the Petition, as provided under 19 CFR 351.203(c)(2).
Commerce will notify the ITC of its initiation, as required by section 702(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that imports of wine bottles from China are materially injuring, or threatening material injury to, a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). Section 351.301(b) of Commerce's regulations requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by Commerce. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301.
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. Parties wishing to participate in this investigation should ensure that they meet the requirements of 19 CFR 351.103(d) (
This notice is issued and published pursuant to sections 702 and 777(i) of the Act, and 19 CFR 351.203(c).
The merchandise covered by the investigation is certain narrow neck glass bottles, with a nominal capacity of 740 milliliters (25.02 ounces) to 760 milliliters (25.70 ounces); a nominal total height between 24.8 centimeters (9.75 inches) to 35.6 centimeters (14 inches); a nominal base diameter between 4.6 centimeters (1.8 inches) to 11.4 centimeters (4.5 inches); and a mouth with an outer diameter of between 25 millimeters (.98 inches) to 37.9 millimeters (1.5 inches); frequently referred to as a “wine bottle.” In scope merchandise may include but is not limited to the following shapes: Bordeaux (also known as “Claret”), Burgundy, Hock, Champagne, Sparkling, Port, Provence, or Alsace (also known as “Germanic”). In scope glass bottles generally have an approximately round base and have shapes including but not limited to, straight-sided, a tapered slope from shoulder (
Excluded from the scope of the investigation are: (1) glass containers made of borosilicate glass, meeting United States Pharmacopeia requirements for Type 1 pharmaceutical containers; and (2) glass containers without a “finish” (
Glass bottles subject to the investigation are specified within the Harmonized Tariff Schedule of the United States (HTSUS) under subheading 7010.90.5019. The HTSUS subheading is provided for convenience and customs purposes only. The written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that certain companies subject to the administrative review of the antidumping duty (AD) order on 1,1,1,2-Tetrafluoroethane (R-134a) from the People's Republic of China (China) remain part of the China-wide entity during the period of review (POR) April 1, 2022, through March 31, 2023. In addition, Commerce is rescinding this review in part with respect to certain companies that did not ship subject merchandise during the POR. Interested parties are invited to comment on these preliminary results of review.
Applicable January 25, 2024.
John Conniff, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1009.
On April 19, 2017, Commerce published in the
On July 20, 2023, we placed on the record U.S. Customs and Border Protection (CBP) data for entries of R-134a from China, and invited interested parties to comment.
The merchandise covered by the
Merchandise subject to the
Pursuant to 19 CFR 351.213(d)(3), it is Commerce's practice to rescind an administrative review of an antidumping duty order where it concludes that there were no suspended entries of subject merchandise during the POR.
Commerce considers all other companies for which a review was requested (
Pursuant to 19 CFR 351.309(c), interested parties may submit case briefs to Commerce no later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs.
As provided under 19 CFR 351.309(c)(2) and (d)(2), in prior proceedings we have encouraged interested parties to provide an executive summary of their brief that should be limited to five pages total, including footnotes. In this review, we instead request that interested parties provide at the beginning of their briefs a public, executive summary for each issue raised in their briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via Enforcement and Compliance's Antidumping and CVD Centralized Electronic Service System (ACCESS). Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in the respective case briefs. An electronically filed hearing request must be received successfully in its entirety by Commerce's electronic records system, ACCESS, by 5:00 p.m. Eastern Time within 30 days after the date of publication of this notice.
Unless extended, we intend to issue the final results of this administrative review, which will include the results of our analysis of all issues raised in the case and rebuttal briefs, within 120 days of publication of these preliminary results in the
For the companies listed in Appendix I for which we are rescinding the review, Commerce will instruct CBP to assess antidumping duties on all appropriate entries. Antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of this rescission notice in the
For the companies listed in Appendix II, upon issuance of the final results of this review, Commerce will determine, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise covered by this review.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable January 18, 2024.
Dusten Hom (Chile) at (202) 482-5075; Frank Schmitt (the People's Republic of China (China)) at (202) 482-4880; and Elizabeth Bremer (Mexico) at (202) 482-4987, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
On December 29, 2023, the U.S. Department of Commerce (Commerce) received antidumping duty (AD) petitions concerning imports of certain glass wine bottles (wine bottles) from Chile, China, and Mexico filed in proper form on behalf of the U.S. Glass Producers Coalition (the petitioner).
Between January 3 and 11, 2024, Commerce requested supplemental information pertaining to certain aspects of the Petitions in separate supplemental questionnaires.
In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), the petitioner alleges that imports of wine bottles from Chile, China, and Mexico are being, or are likely to be, sold in the United States at less than fair value (LTFV) within the meaning of section 731 of the Act, and that imports of such products are materially injuring, or threatening material injury to, the wine bottles industry in the United States. Consistent with section 732(b)(1) of the Act, the Petitions are accompanied by information reasonably available to the petitioner supporting its allegations.
Commerce finds that the petitioner filed the Petitions on behalf of the domestic industry, because the petitioner is an interested party, as defined in section 771(9)(F) of the Act.
Because the Petitions were filed on December 29, 2023, pursuant to 19 CFR 351.204(b)(1), the period of investigation (POI) for the Chile and Mexico LTFV investigations is October 1, 2022, through September 30, 2023. Because China is a non-market economy (NME) country, pursuant to 19 CFR 351.204(b)(1), the POI for the China LTFV investigation is April 1, 2023, through September 30, 2023.
The products covered by these investigations are wine bottles from Chile, China, and Mexico. For a full description of the scope of these investigations,
On January 3 and 10, 2024, Commerce requested information and clarification from the petitioner regarding the proposed scope to ensure that the scope language in the Petitions is an accurate reflection of the products for which the domestic industry is seeking relief.
As discussed in the
Commerce requests that any factual information that parties consider relevant to the scope of these investigations be submitted during that period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party must contact Commerce and request permission to submit the additional information. All such submissions must be filed on the records of each of the concurrent LTFV and CVD investigations.
All submissions to Commerce must be filed electronically using Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS), unless an exception applies.
Commerce is providing interested parties an opportunity to comment on the appropriate physical characteristics of wine bottles to be reported in response to Commerce's AD questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to report the relevant factors of production (FOP) or costs of production (COP) accurately, as well as to develop appropriate product comparison criteria.
Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) general product characteristics; and (2) product comparison criteria. We note that it is not always appropriate to use all product characteristics as product comparison criteria. We base product comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe wine bottles, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, Commerce attempts to list the most important physical characteristics first and the least important characteristics last.
In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, all product characteristics comments must be filed by 5 p.m. ET on February 7, 2024, which is 20 calendar days from the signature date of this notice.
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) at least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, Commerce shall: (i) poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs Commerce to look to producers and workers who produce the domestic like product. The U.S. International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both Commerce and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the
With regard to the domestic like product, the petitioner does not offer a definition of the domestic like product distinct from the scope of the investigations.
In determining whether the petitioner has standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in the appendix to this notice. To establish industry support, the petitioner provided the total 2022 production of the domestic like product for the U.S. producers that support the Petitions and compared this to the estimated total 2022 production of the domestic like product for the entire domestic industry.
Our review of the data provided in the Petitions, the First General Issues Supplement, the Second General Issues Supplement, and other information readily available to Commerce indicates that the petitioner has established industry support for the Petitions.
The petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at LTFV. In addition, the petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The petitioner contends that the industry's injured condition is illustrated by the significant volume and market share of subject imports; underselling and price depression and/or suppression; lost sales and revenues; negative impact on the domestic industry's production and shipments; layoffs; and declining financial performance.
The following is a description of the allegations of sales at LTFV upon which Commerce based its decision to initiate LTFV investigations of imports of wine bottles from Chile, China, and Mexico. The sources of data for the deductions and adjustments relating to U.S. price and normal value (NV) are discussed in greater detail in the Country-Specific AD Initiation Checklists.
For Chile, China, and Mexico, the petitioner based export price (EP) on pricing information for sales of, or offers for sale of, wine bottles produced in and exported from each country.
For Chile and Mexico, the petitioner stated that it was unable to obtain home market or third country pricing information for wine bottles to use as a basis for NV.
Commerce considers China to be an NME county.
The petitioner claims that Chile is an appropriate surrogate country for China because it is a market economy that is at a level of economic development comparable to that of China and is a significant producer of identical and comparable merchandise.
Interested parties will have the opportunity to submit comments regarding surrogate country selection and, pursuant to 19 CFR 351.301(c)(3)(i), will be provided an opportunity to submit publicly available information to value FOPs within 30 days before the scheduled date of the preliminary determination.
Because information regarding the volume of inputs consumed by Chinese producers/exporters was not reasonably available, the petitioner used product-specific consumption rates from a U.S. producer of wine bottles as a surrogate to value Chinese manufacturers' FOPs.
As noted above for Chile and Mexico, the petitioner stated that it was unable to obtain home market or third-country prices for wine bottles to use as a basis for NV. Therefore, for these countries, the petitioner calculated NV based on CV.
Pursuant to section 773(e) of the Act, the petitioner calculated CV as the sum of the cost of manufacturing, SG&A, financial expenses, and profit.
Based on the data provided by the petitioner, there is reason to believe that imports of wine bottles from Chile, China, and Mexico are being, or are likely to be, sold in the United States at LTFV. Based on comparisons of EP to NV in accordance with sections 772 and 773 of the Act, the estimated dumping margins for wine bottles for each of the countries covered by this initiation are as follows: (1) Chile—609.71 percent; (2) China—284.53 to 301.12 percent; and (3) Mexico—79.83 to 96.95 percent.
Based upon the examination of the Petitions and supplemental responses, we find that they meet the requirements of section 732 of the Act. Therefore, we are initiating LTFV investigations to determine whether imports of wine bottles from Chile, China, and Mexico are being, or are likely to be, sold in the United States at LTFV. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 140 days after the date of these initiations.
In the Petitions, the petitioner identified three companies in Chile and seven companies in Mexico as producers/exporters of wine bottles.
On January 16, 2024, Commerce released CBP data on imports of wine bottles from Chile and Mexico under administrative protective order (APO) to all parties with access to information protected by APO and indicated that interested parties wishing to comment on CBP data and/or respondent selection must do so within three business days of the publication date of the notice of initiation of these investigations.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on Commerce's website at
In the Petitions, the petitioner named 36 companies in China as producers and/or exporters of wine bottles.
Commerce will post the Q&V questionnaires along with filing
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). As stated above, instructions for filing such applications may be found on Commerce's website at
In order to obtain separate rate status in an NME investigation, exporters and producers must submit a separate rate application. The specific requirements for submitting a separate rate application in an NME investigation are outlined in detail in the application itself, which is available on Commerce's website at
Commerce will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:
{w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that {Commerce} will now assign in its NME Investigation will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the {weighted average} of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question
In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the Petitions have been provided to the governments of Chile, China, and Mexico via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petitions to each exporter named in the Petitions, as provided under 19 CFR 351.203(c)(2).
Commerce will notify the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of wine bottles from Chile, China, and/or Mexico are materially injuring, or threatening material injury to, a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). Section 351.301(b) of Commerce's regulations requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted
Section 773(e) of the Act addresses the concept of particular market situation (PMS) for purposes of CV, stating that “if a particular market situation exists such that the cost of materials and fabrication or other processing of any kind does not accurately reflect the cost of production in the ordinary course of trade, the administering authority may use another calculation methodology under this subtitle or any other calculation methodology.” When an interested party submits a PMS allegation pursuant to section 773(e) of the Act, Commerce will respond to such a submission consistent with 19 CFR 351.301(c)(2)(v). If Commerce finds that a PMS exists under section 773(e) of the Act, then it will modify its dumping calculations appropriately.
Neither section 773(e) of the Act, nor 19 CFR 351.301(c)(2)(v), set a deadline for the submission of PMS allegations and supporting factual information. However, in order to administer section 773(e) of the Act, Commerce must receive PMS allegations and supporting factual information with enough time to consider the submission. Thus, should an interested party wish to submit a PMS allegation and supporting new factual information pursuant to section 773(e) of the Act, it must do so no later than 20 days after submission of a
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by Commerce. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301.
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. Parties wishing to participate in these investigations should ensure that they meet the requirements of 19 CFR 351.103(d) (
This notice is issued and published pursuant to sections 732(c)(2) and 777(i) of the Act, and 19 CFR 351.203(c).
The merchandise covered by the investigations is certain narrow neck glass bottles, with a nominal capacity of 740 milliliters (25.02 ounces) to 760 milliliters (25.70 ounces); a nominal total height between 24.8 centimeters (9.75 inches) to 35.6 centimeters (14 inches); a nominal base diameter between 4.6 centimeters (1.8 inches) to 11.4 centimeters (4.5 inches); and a mouth with an outer diameter of between 25 millimeters (.98 inches) to 37.9 millimeters (1.5 inches); frequently referred to as a “wine bottle.” In scope merchandise may include but is not limited to the following shapes: Bordeaux (also known as “Claret”), Burgundy, Hock, Champagne, Sparkling, Port, Provence, or Alsace (also known as “Germanic”). In scope glass bottles generally have an approximately round base and have shapes including but not limited to, straight-sided, a tapered slope from shoulder (
Excluded from the scope of the investigations are: (1) glass containers made of borosilicate glass, meeting United States Pharmacopeia requirements for Type 1 pharmaceutical containers; and (2) glass containers without a “finish” (
Glass bottles subject to the investigations are specified within the Harmonized Tariff Schedule of the United States (HTSUS) under subheading 7010.90.5019. The HTSUS subheading is provided for convenience and customs purposes only. The written description of the scope of the investigations is dispositive.
Office for Coastal Management (OCM), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), U.S. Department of Commerce.
Notice of intent to prepare a draft environmental impact statement and hold public scoping meetings; request for comments.
In accordance with Section 315 of the Coastal Zone Management Act of 1972, as amended, and the National Environmental Policy Act of 1969, as amended, NOAA and the State of Wisconsin intend to prepare a draft environmental impact statement and draft management plan for the proposed Bay of Green Bay National Estuarine Research Reserve. NOAA and the State are also announcing two public scoping meetings to solicit comments on significant issues related to the development of a draft environmental impact statement for the proposed Bay of Green Bay National Estuarine Research Reserve.
Both an in-person meeting and a virtual meeting will be held on Tuesday, March 19, 2024. The virtual meeting will be held at 10 a.m. Central Time (CT). The in-person meeting will be held at 1:30 p.m. CT. Written comments provided electronically must be submitted no later than Friday, April 19, 2024; written comments submitted by mail must be postmarked by Friday, April 19, 2024.
The virtual public scoping meeting will be held on Zoom at the following link:
The in-person public scoping meeting will be conducted in the S.T.E.M. Innovation Center at the University of Wisconsin Green Bay campus, located at 2019 Technology Way, Green Bay, Wisconsin 54311 at 1:30 p.m. Central Time. This meeting will be in-person only and not broadcast.
Participants will be able to provide comments during both meetings. Both public meetings will present the same information. Meeting documents will be available on the University of Wisconsin-Green Bay's national estuarine research reserve website,
Written comments may be submitted using the following methods:
•
•
Bridget Faust-Accola, Office for Coastal Management, 1735 Lake Drive West, Chanhassen, Minnesota 55317; ATTN: Bay of Green Bay NERR. Phone: 612-564-0323; or email:
In accordance with section 315 of the Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1461), and its implementing regulations (15 CFR part 921), and the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321), and its implementing regulations (40 CFR part 1500), NOAA and the State intend to prepare a draft environmental impact statement for the proposed Bay of Green Bay National Estuarine Research Reserve. Early in the development of this document, NOAA and the State are required to hold a scoping meeting to solicit public and government comments on significant issues related to this proposed action. (15 CFR 921.13(c)).
NOAA received the State's nomination of the proposed multicomponent site on December 29, 2022. NOAA evaluated the nomination package and found that the proposed site met the research reserve system's requirements. NOAA informed the State in early 2024 that it was approving the nomination and that the next step would be to prepare a draft environmental impact statement and draft management plan. The draft environmental impact statement will assess the potential environmental and socioeconomic impacts of designating the State's proposed site as a National Estuarine Research Reserve System site, and identify and assess the impacts of boundary alternatives. The draft management plan will set a course for operating the Bay of Green Bay National Estuarine Research Reserve once approved, and will include plans for administration, research, education, and facilities for the proposed site. (
The State's proposed site consists of three components, including all or portions of the following State, university, county, local government, or land trust-owned properties: the Peshtigo Harbor State Wildlife Area, Bloch Oxbow State Natural Area, and Badger Gift Lands; the Peats Lake, Sensiba, Tibbet-Suamico, and Long Tail Units within the Green Bay West Shores Wildlife Area; the Suamico River State Habitat Area; Barkhausen Waterfowl Preserve; Fort Howard Wildlife Area; Gordon Nauman Conservation Area; Ken Euers Nature Area; Point au Sable and Wequiock Creek Natural Areas; Crossroads at Big Creek; the Strawberry Creek Chinook Facility, and Sturgeon Bay Ship Canal Nature Preserve.
The proposed site resulted from the State's comprehensive evaluation process that sought input from the public, affected landowners, and other interested parties. The State held public kickoff meetings in April 2021 to describe the research reserve system, explain the rationale for establishing a reserve in the Bay of Green Bay, and outline a process for selecting and nominating a site to NOAA. The State assembled committees composed of State and Federal agency representatives, Tribal Nations, academia, non-governmental organizations, members of the public, and local units of government. These committees conducted preliminary screening, developed and applied site selection criteria, scored those sites that showed the most potential, and ultimately recommended a site for the future reserve. The State and NOAA held public hearings on September 7 and 8, 2022, to solicit comments on the proposed site. For more detailed information on the site selection process and the proposed site, see the University of Wisconsin-Green Bay's research reserve website:
Consumer Product Safety Commission.
Notice of information collection; request for comment.
As required by the Paperwork Reduction Act of 1995, the Consumer Product Safety Commission (CPSC or Commission) announces that the Commission has submitted to the Office of Management and Budget (OMB) a request for extension of approval of a collection of information regarding the Safety Standard for Multi-Purpose Lighters. OMB previously approved the collection of information under Control Number 3041-0130. OMB's most recent extension of approval will expire on January 31, 2024. On November 15, 2023, CPSC published a notice in the
Submit comments on the collection of information by February 26, 2024.
Submit comments about this request by email:
Cynthia Gillham, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; (301) 504-7791, or by email to:
CPSC seeks to renew the following currently approved collection of information:
Consumer Product Safety Commission.
Notice of information collection; request for comment.
As required by the Paperwork Reduction Act of 1995, the Consumer Product Safety Commission (CPSC or Commission) announces that the Commission has submitted to the Office of Management and Budget (OMB) a request for extension of approval of a collection of information relating to the procedures for the export of noncomplying products. OMB previously approved the collection of information under Control Number 3041-0003. OMB's most recent extension of approval will expire on January 31, 2024. On November 15, 2023, CPSC published a notice in the
Submit comments on the collection of information by February 26, 2024.
Submit comments about this request by email:
Cynthia Gillham, Consumer Product
CPSC seeks to renew the following currently approved collection of information:
Consumer Product Safety Commission.
Notice of information collection; request for comment.
As required by the Paperwork Reduction Act of 1995, the Consumer Product Safety Commission (CPSC or Commission) announces that the Commission has submitted to the Office of Management and Budget (OMB) a request for extension of approval for a collection of information relating to the Safety Standard for Bicycle Helmets. OMB previously approved the collection of information under Control Number 3041-0127. OMB's most recent extension of approval will expire on January 31, 2024. On November 15, 2023, CPSC published a notice in the
Submit comments on the collection of information by February 26, 2024.
Submit comments about this request by email:
Cynthia Gillham, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; (301) 504-7791, or by email to:
CPSC seeks to extend the following collection of information:
Corporation for National and Community Service.
Notice of information collection; request for comment.
The Corporation for National and Community Service, operating as AmeriCorps, has submitted a public information collection request (ICR) entitled AmeriCorps External Reviewer Survey for review and approval in accordance with the Paperwork Reduction Act.
Written comments must be submitted to the individual and office listed in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of this ICR, with applicable supporting documentation, may be obtained by contacting Patti Stengel, (202) 815-5791, or by email at
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
General Counsel of the Department of Defense, Department of Defense (DoD).
Notice of Federal Advisory Committee meeting.
The DoD is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) will take place.
Wednesday, February 21, 2024—Open to the public from 12:30 p.m. to 1:30 p.m. EST.
This meeting will be held virtually. The meeting can be accessed virtually via the following dial-in number and links: Dial-in: (669) 254-5252/(646) 828-7666, Meeting ID: 161 327 2379, Passcode: 615243. Link:
Dwight Sullivan, 703-695-1055 (Voice),
This meeting is being held under the provisions of chapter 10 of title 5 United States Code (U.S.C.) (formerly the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., App.)), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150.
Defense Human Resources Activity, Department of Defense (DoD).
Notice of revised per diem rates in non-foreign areas Outside the Continental United States (OCONUS).
Defense Human Resources Activity publishes this Civilian Personnel Per Diem Bulletin Number 325. Bulletin Number 325 lists current per diem rates prescribed for reimbursement of subsistence expenses while on official Government travel to Alaska, Hawaii, the Commonwealth of Puerto Rico, and the possessions of the United States. The Fiscal Year (FY) 2024 lodging rate review for Alaska resulted in rate changes for multiple locations.
The updated rates take effect February 1, 2024.
Mr. David Maly, 571-372-1316,
This document notifies the public of revisions in per diem rates prescribed by the Per Diem, Travel, and Transportation Allowance Committee for travel to non-foreign areas OCONUS. The FY 2024 lodging rate review for Alaska resulted in lodging rate increases for multiple locations. Bulletin Number 325 is published in the
If you believe the lodging, meal or incidental allowance rate for a locality listed in the following table is insufficient, you may request a rate review for that location. For more information about how to request a review, please see the Defense Travel Management Office's Per Diem Rate Review Frequently Asked Questions (FAQ) page at
Under Secretary of Defense for Research and Engineering, Department of Defense (DoD).
Notice of Federal Advisory Committee meeting; cancellation.
On January 18, 2024, the DoD published a notice announcing a Federal Advisory Committee meeting of the Defense Science Board (DSB) that was to take place on January 18, 2024. The meeting has been cancelled.
Cancelled; open to the public Thursday, January 18, 2024, from 3 p.m. to 3:45 p.m.
Ms. Elizabeth J. Kowalski, Designated Federal Officer (DFO): (703) 571-0081 (Voice), (703) 697-1860 (Facsimile),
Due to circumstances beyond the control of the Designated Federal Officer and the Department of Defense, the Defense Science Board was unable to provide public notification required by 41 CFR 102-3.150(a) concerning the cancellation of its January 18, 2024 meeting. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.
On January 18, 2024 (89 FR 3386), the DoD published a notice announcing a Federal Advisory Committee meeting of the Defense Science Board (DSB) that was to take place on January 18, 2024. The meeting has been cancelled. The meeting will be re-scheduled for a later date and an updated notice published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for new awards for fiscal year (FY) 2024 for Personnel Development to Improve Services and Results for Children with Disabilities Program—Preservice Development Grants at Historically Black Colleges and Universities, Tribally Controlled Colleges and Universities, and Other Minority Serving Institutions to Diversify Personnel Serving Children with Disabilities, Assistance Listing Number 84.325X. This notice relates to the approved information collection under OMB control number 1820-0028.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Tracie Dickson, U.S. Department of Education, 400 Maryland Avenue SW, Room 4A10 Washington, DC 20202. Telephone: (202) 245-7844. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
This priority is:
Special education and related services personnel are at the top of the critical shortage list in educational systems in nearly every State, especially in urban areas (U.S. Department of Education, 2023b; American Speech Language Hearing Association, n.d.; National Coalition on Personnel Shortages in Special Education and Related Services, n.d.). In a national survey of Part C State coordinators, 98 percent of respondents indicated that they had shortages of personnel to work in their early intervention system (IDEA Infant and Toddler Coordinators Association, 2021). These shortages impede the ability of children with disabilities to reach their full potential (Center on Great Teachers and Leaders, 2023a). Compounding the issue is the critical shortage of early intervention, special
Enhancing equity within early intervention and special education systems requires a specific focus on preservice preparation so that the future workforce has the competencies to support the developmental and learning needs of children with disabilities, including the increasing population of children with disabilities who are multilingual and racially, ethnically, and culturally diverse (Center on Great Teachers and Leaders, 2023b). Diversifying the workforce can have positive impacts on all children. All children, and particularly multilingual children and children from racially and ethnically diverse backgrounds, with and without disabilities, demonstrate improved academic achievement and behavioral and social and emotional development when they receive services from personnel who are multilingual and from racially, ethnically, and culturally diverse backgrounds (Kunemund et al., 2020).
Historically Black Colleges and Universities (HBCUs), Tribally Controlled Colleges and Universities (TCCUs), and other Minority Serving Institutions (MSIs) have the experience and expertise to recruit, prepare, and graduate students who are multilingual and racially, ethnically, and culturally diverse. However, there are currently a limited number of HBCUs, TCCUs, and other MSIs that operate the programs required to train the number of students needed to address the critical shortage. Therefore, there is a need to increase the number of early intervention, early childhood special education, special education, and related services programs in HBCUs, TCCUs, and other MSIs. For example, of all Black teachers nationwide, nearly half are graduates of HBCUs (U.S. Department of Education, 2023a). Yet, of the 103 HBCUs, only 27 offer a special education preparation program (Patterson et al., 2022). There are currently 32 fully accredited TCCUs (National Indian Education Association, n.d.), with nine offering bachelor's degrees in early childhood education, eight offering bachelor's degrees in general education, and only one offering a bachelor's degree in special education. Additionally, many special education programs at HBCUs and MSIs focus on high-incidence disabilities and do not offer degree programs that prepare graduates to serve children with high-intensity needs, such as sensory disabilities. As an example, since 2006, OSEP has only awarded two grants to HBCUs to prepare teachers of students with visual impairments (TVIs) and only five grants to MSIs to prepare TVIs. Additionally, only one HBCU currently offers a degree preparing teachers of students who are deaf or hard of hearing and teachers of students who are DeafBlind.
To address shortages and diversify the workforce in early intervention, early childhood special education, special education, and related services personnel, HBCUs, TCCUs, and MSIs need support to develop associate's, bachelor's, certificate, master's, educational specialist, and clinical doctoral degree level programs (Escobar et al., 2021; Murray et al., 2022; Lamb, 2016). To increase the number of personnel who are fully credentialed and licensed to enter the field to serve children with disabilities and their families, including multilingual personnel and personnel from racially and ethnically diverse backgrounds, this grant competition plans to award grants to HBCUs, TCCUs, and MSIs to develop new degree and certification programs in early intervention, early childhood special education, special education, and related services. This priority aligns with the Secretary's Supplemental Priority 3—Supporting a Diverse Educator Workforce and Professional Growth to Strengthen Student Learning, published in the
The purpose of this priority is to fund Preservice Development Grants at HBCUs,
(a) Increased number of early intervention, early childhood special education, special education, or related services
(b) Increased variety of degrees, including associate degrees, bachelor's degrees, master's degrees, educational specialist degrees, and clinical doctorate degrees, and certifications
(c) Increased faculty capacity at HBCUs, TCCUs, and MSIs to design and deliver programs of study in early intervention, early childhood special education, special education, and related services.
In addition to these programmatic requirements, to be considered for funding under this priority, applicants must meet the application and administrative requirements in this priority, which are:
(a) Demonstrate, in the narrative section of the application under “Significance,” how—
(1) The proposed project will address the need in the field to increase the number of personnel in the proposed
To meet this requirement, the applicant must provide information demonstrating that it has successfully graduated students from an education or related services program that is related to the degree or certification being proposed, including data on the number of students who have graduated in the last five years disaggregated by race, national origin, disability status, and primary language(s).
(b) Demonstrate, in the narrative section of the application under “Quality of project services,” how the project will—
(1) Develop a plan to create a new associate degree, bachelor's degree, certification, master's degree, educational specialist degree, or clinical doctoral degree program in early intervention, early childhood special education, special education, or related services during the first 24 months of the project. To address this requirement, the applicant must describe the approach that will be used to—-
(i) Develop a curriculum, including coursework and field or clinical practicum experiences, and academic requirements for the proposed degree or certification to prepare early intervention, early childhood special education, special education, or related services personnel to provide effective and equitable, evidence-based, culturally and linguistically responsive instruction, interventions, and services, that improve outcomes for children with disabilities, including those who are multilingual and from racially and ethnically diverse backgrounds. The applicant must describe—
(A) The components of the proposed curriculum such as coursework, field or practicum experience, and other requirements; and the anticipated time to complete the degree or certification program;
(B) How it will identify and incorporate current research, evidence-based practices, and State and national professional organization personnel standards in the development and delivery of the curriculum;
(ii) Determine the knowledge and competencies students will acquire in the proposed program, including knowledge and competencies necessary to provide effective and equitable, evidence-based, culturally and linguistically responsive instruction, interventions, and services, that improve outcomes for children with disabilities, including children with disabilities who are multilingual and from racially and ethnically diverse backgrounds;
(iii) Develop partnerships with field placement and clinical practicum sites to prepare early intervention, early childhood special education, special education, or related services personnel to provide effective and equitable, evidence-based, culturally and linguistically responsive instruction, interventions, and services in inclusive setting, that improve outcomes for children with disabilities, including children with disabilities who are multilingual and from racially and ethnically diverse backgrounds;
(iv) Establish admission and enrollment plans, including setting first-year enrollment targets and overall steady-state program enrollment; setting admission requirements and the admissions process; and developing recruitment and retention plans to attract students, including those who are multilingual and from racially and ethnically diverse backgrounds;
(v) Advise and mentor students, including those who are multilingual and those from racially and ethnically diverse backgrounds to support their successful completion of the degree or certification program; and
(vi) Develop the capacity of faculty and staff to develop a new degree or certification program; and
(2) Have the structures in place to implement the new degree or certification program by year four of the project. To meet this requirement, the applicant must describe the proposed approach to—
(i) Ensuring that faculty and staff have the capacity to implement the new degree or certification program;
(ii) Developing a leadership plan that describes the role of faculty, including the department chair or director, in implementing the new degree or certification program, including implementation of the admissions process, recruitment strategies, degree requirements, and advising and mentoring; and
(iii) Ensuring the sustainability of the project once Federal funding ends.
(c) Demonstrate, in the narrative section of the application under “Quality of the project personnel and quality of management plan,” how—
(1) The proposed project will encourage applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability, as appropriate;
(2) The project director and key project personnel have the qualifications and experience to carry out the proposed activities and achieve the project's intended outcomes;
(3) The proposed project will approach identifying a sufficient number of faculty with active records of content expertise, research, and teaching experience, including faculty who are multilingual and from racially and ethnically diverse backgrounds, aligned to the new degree or certification program;
(4) The project director and other key project personnel will manage the components of the project;
(5) The time commitments of the project director and other key project personnel are adequate to meet the objectives of the proposed project;
(6) The proposed management plan will ensure that the project will meet the proposed objectives and the degree or certification program will be of high quality; and
(7) The proposed project will benefit from a diversity of perspectives, including faculty, community partners, current and prospective students, families of children with disabilities, and early intervention, early childhood and school personnel, among others, in its development and operation.
(d) Demonstrate, in the narrative section of the application under “Adequacy of resources,” how—
(1) The applicant and any key partners have adequate resources to carry out the proposed activities; and
(2) The budget is adequate for meeting the project objectives.
(e) Demonstrate, in the narrative section of the application under “Quality of the project evaluation,” how the applicant will—
(1) Evaluate how well the goals or objectives of the proposed project have been met. To meet this requirement the applicant must provide—
(i) Measurable intended project outcomes;
(ii) In Appendix A, the logic model by which the proposed project will achieve its intended project outcomes that depicts, at minimum, the goals, activities, outputs, and outcomes;
(iii) In Appendix A, the conceptual framework underlying the new degree or certification program, project plans and activities, describing any underlying concepts, assumptions, expectations, beliefs, or theories, as well as the presumed relationships or linkages among these variables, and any empirical support for this framework; and
(iv) The evaluation methodologies, data collection methods, and data analyses that will be used.
(f) In the appendices or narrative under “Required project assurances” the applicant must—
(1) Include in Appendix A, charts, tables, figures, graphs, screen shots and visuals that provide information directly relating to the application requirements for the narrative. Appendix A should not be used for supplementary information. Please note that charts, tables, figures, graphs, or screen shots, can be single-spaced when placed in Appendix A;
(2) Include in Appendix B any letters of commitment or support. The applicant must include a letter of commitment from the dean or designee of the school or college where the program will be administratively located affirming support for the proposal. In addition, deans or designees, chairs, and directors of academic units contributing courses, faculty effort, funding, space, or other resources for the proposed program must provide letters of support that confirm these commitments;
(3) Ensure that if the project maintains a website, it will be of high quality, with an easy-to-navigate design that meets or exceeds government or industry-recognized standards for accessibility;
(4) Include in the budget, attendance at a three-day project directors' conference in Washington, DC, during each year of the project period. The project must reallocate funds for travel to the project directors' meeting no later than the end of the third quarter of each budget period if the meeting is conducted virtually; and
(5) Provide an assurance that the project—
(i) Will submit the curriculum and syllabi for courses in the new degree or certification program, the admissions plan, the student recruitment plan, the plan for advising and mentoring students, and the roles of faculty and staff in the program when requested by OSEP; and
(2) Will participate in collaboration meetings with other grantees funded under ALN 84.325X and will engage with OSEP-funded TA centers as appropriate.
The Secretary may extend a project three years beyond the initial two years of the project if the grantee is achieving the intended outcomes of the project. By the end of the second year of the project, the grantee must have a new degree or certification plan approved by the university. By the end of the third year of the project, the grantee must have the infrastructure in place to begin recruiting students for the program. By the end of the fourth year of the project, the grantee must admit students and begin delivering the new degree or certification program. Each applicant must include in its application a plan and a budget for the full 60-month period. In deciding whether to extend funding for years three, four, and five of the project, the Secretary will consider the requirements of 34 CFR 75.253(a) and will consider the success and timeliness with which the intended outcomes of the project requirements have been, or are being, met by the project.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2025 from the list of unfunded applications from this competition.
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(a) Recipients of funding under this competition must make positive efforts to employ and advance in employment qualified individuals with disabilities (see section 606 of IDEA).
(b) Applicants for, and recipients of, funding must, with respect to the aspects of their proposed project relating to the absolute priority, involve individuals with disabilities, or parents of individuals with disabilities ages birth through 26, in planning, implementing, and evaluating the project (see section 682(a)(1)(A) of IDEA).
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• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, reference citations, and captions, as well as all text in charts, tables, figures, graphs, and screen shots.
• Use a font that is 12 point or larger.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; or the abstract (follow the guidance provided in the application package for completing the abstract), the table of contents, the list of priority
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(1) The Secretary considers the significance of the proposed project.
(2) In determining the significance of the proposed project, the Secretary considers the following factors:
(i) The extent to which the proposed project will prepare personnel for fields in which shortages have been demonstrated; and
(ii) The importance or magnitude of the results or outcomes likely to be attained by the proposed project, especially improvements in teaching and student achievement.
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(1) The Secretary considers the quality of the services to be provided by the proposed project.
(2) In determining the quality of the services to be provided by the proposed project, the Secretary considers the quality and sufficiency of strategies for ensuring equal access and treatment for eligible project participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In addition, the Secretary considers the following factors:
(i) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable;
(ii) The extent to which the services to be provided by the proposed project reflect up-to-date knowledge from research and effective practice; and
(iii) The extent to which the training or professional development services to be provided by the proposed project are of sufficient quality, intensity, and duration to lead to improvements in practice among the recipients of those services.
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(1) The Secretary considers the quality of the personnel who will carry out the proposed project and the quality of the management plan for the proposed project.
(2) In determining the quality of project personnel, the Secretary considers the extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In addition, the Secretary considers the following factors:
(i) The qualifications, including relevant training and experience, of key project personnel;
(ii) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks;
(iii) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project; and
(iv) The adequacy of mechanisms for ensuring high-quality products and services from the proposed project.
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(1) The Secretary considers the adequacy of resources for the proposed project.
(2) In determining the adequacy of resources for the proposed project, the Secretary considers the following factors:
(i) The adequacy of support, including facilities, equipment, supplies, and other resources, from the applicant organization or the lead applicant organization; and
(ii) The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project.
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(1) The Secretary considers the quality of the evaluation to be conducted of the proposed project.
(2) In determining the quality of the evaluation, the Secretary considers the following factors:
(i) The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project; and
(ii) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes.
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In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
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(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);
(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115-232) (2 CFR 200.216);
(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and
(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).
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We reference the regulations outlining the terms and conditions of an award in the
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Additionally, a grantee or subgrantee that is awarded competitive grant funds must have a plan to disseminate these public grant deliverables. This dissemination plan can be developed and submitted after your application has been reviewed and selected for funding. For additional information on the open licensing requirements please refer to 2 CFR 3474.20.
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
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The measures apply to projects funded under this competition, and grantees are required to submit data on these measures as directed by OSEP.
Grantees will be required to report information on their project's performance in annual and final performance reports to the Department (34 CFR 75.590).
The Department will also closely monitor the extent to which the products and services provided by the project meet needs identified by stakeholders and may require the project to report on such alignment in its annual and final performance reports.
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In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
Office of Finance and Operations (OFO), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing a new information collection request (ICR).
Interested persons are invited to submit comments on or before March 25, 2024.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Pedro Romero, 202-453-7886.
The Department, in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Department is soliciting comments on the proposed information collection request (ICR) that is described below. The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
1. All iron and steel used in the infrastructure project or activity are produced in the United States.
2. All manufactured products used in the infrastructure project or activity are produced in the United States.
3. All construction materials are manufactured in the United States.
The Department may, in accordance with sections 70914(b) and (d), 70921(b), 70935, and 70937 of BABAA, and the Office of Management and Budget Memorandum M 24-02, Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure, approve waivers to BABAA sourcing requirements under programs it has identified as infrastructure programs when it determines that exceptions to these requirements apply. The Department may approve these waivers, subject to notice and comment requirements and the Office of Management and Budget Made in America Office (MIAO) review.
The information submitted by grantees using the BABAA Data Collection Form will be used by the Department to track the type of waivers (
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing an extension without change of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before February 26, 2024.
Written comments and recommendations for proposed information collection requests should be submitted within 30 days of publication of this notice. Click on this link
For specific questions related to collection activities, please contact Andrew Brake, 202-453-6136.
The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office for Finance and Operations (OFO), Department of Education (ED).
Notice; correction.
On January 22, 2024, the U.S. Department of Education published a 30-day comment period notice in the
The PRA Coordinator, Strategic Collections and Clearance, Office of the Chief Data Officer, Office of Planning, Evaluation and Policy Development, hereby issues a correction notice as required by the Paperwork Reduction Act of 1995.
On January 18, 2024, the Commission issued an order in Docket No. EL24-52-000 pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e, instituting an investigation to determine whether Lyons Solar, LLC's proposed rate schedule
The refund effective date in Docket No. EL24-52-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL24-52-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2022), within 21 days of the date of issuance of the order.
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 “eFile” link at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
This is a supplemental notice in the above-referenced proceeding of Keenesburg Energy Storage LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 8, 2024.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202)502-6595 or
On January 18, 2024, the Commission issued an order in Docket No. EL24-51-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e, instituting an investigation to determine whether Nestlewood Solar 1 LLC's Rate Schedule is unjust, unreasonable, unduly discriminatory or
The refund effective date in Docket No. EL24-51-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL24-51-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2022), within 21 days of the date of issuance of the order.
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 “eFile” link at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Federal Energy Regulatory Commission, DOE.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection FERC-598 (Self-Certification for Entities Seeking Exempt Wholesale Generator or Foreign Utility Company Status).
Comments on the collection of information are due March 25, 2024.
You may submit comments (identified by Docket No. IC24-8-000) by any of the following methods:
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• Effective July 1, 2020, delivery of filings other than by eFiling or the U.S. Postal Service should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
Jean Sonneman may be reached by email at
Public utility holding companies and their associates may seek exemption from this requirement. The pertinent statutory and regulatory provisions, 42 U.S.C. 16454 and 18 CFR 366.7, authorize such entities to file with the Commission a notice of self-certification demonstrating that they are “exempt wholesale generators” (EWGs) or “foreign utility companies” (FUCOs). If the Commission takes no action on a good-faith self-certification filing within 60 days after the date of filing, the applicant is exempt from the requirements of 42 U.S.C. 16452(a).
An EWG is defined as “any person engaged directly, or indirectly through one or more affiliates . . . and exclusively in the business of owning or operating, or both owning and operating, all or part of one or more eligible facilities and selling electric energy at wholesale.”
In the case of EWGs, the person filing a notice of self-certification must also file a copy of the notice of self-certification with the state regulatory authority of the state in which the facility is located. In addition, that person must represent to the Commission in its submission that it has filed a copy of the notice with the appropriate state regulatory authority.
On November 28, 2023, Briar Hydro Associates, LLC submitted to the Federal Energy Regulatory Commission (Commission) a copy of its applications for Clean Water Act section 401(a)(1) water quality certifications filed with the New Hampshire Department of Environmental Services, in conjunction with the above captioned projects. Pursuant to 40 CFR 121.6 and section [4.34(b)(5), 5.23(b), 153.4, or 157.22] of the Commission's regulations,
If the New Hampshire Department of Environmental Services fails or refuses to act on the water quality certification requests on or before the above date, then the agency certifying authority is deemed waived pursuant to section 401(a)(1) of the Clean Water Act, 33 U.S.C. 1341(a)(1).
This is a supplemental notice in the above-referenced proceeding of Frederick Energy Storage LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 8, 2024.
The Commission encourages electronic submission of protests and
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email 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
This is a supplemental notice in the above-referenced proceeding of Rattlesnake Ridge Energy Storage LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 8, 2024.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email 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
This is a supplemental notice in the above-referenced proceeding of Bristol BESS, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 7, 2024.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email 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
This is a supplemental notice in the above-referenced proceeding of Platte Valley Energy Storage LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 8, 2024.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene, 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
This is a supplemental notice in the above-referenced proceeding of Mead Energy Storage LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 8, 2024.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email 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
This is a supplemental notice in the above-referenced proceeding of Bromley Energy Storage LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 8, 2024.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email 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 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
This is a supplemental notice in the above-referenced proceeding of Parkway Energy Storage LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 8, 2024.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email 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
This is a supplemental notice in the above-referenced proceeding of Davis UP Energy Storage LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 8, 2024.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email 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
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 new license to continue to operate and maintain the Tallassee Shoals Hydroelectric Project (project). The project is located on the Middle Oconee River, in Athens-Clarke and Jackson Counties, Georgia. Commission staff has prepared an Environmental Assessment (EA) for the project.
The EA contains the staff's analysis of the potential environmental impacts of
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 Michael Spencer at 202-502-6093 or
Environmental Protection Agency (EPA).
Notice of availability.
This notice announces the broadly applicable alternative test method approval decisions that the Environmental Protection Agency (EPA) made under and in support of New Source Performance Standards (NSPS) and the National Emission Standards for Hazardous Air Pollutants (NESHAP) between January 1, 2023, and December 31, 2023.
An electronic copy of each alternative test method approval document is available at
This notice will be of interest to entities regulated under 40 Code of Federal Regulations (CFR) parts 59, 60, 61, 63 and 65; state, local, and tribal agencies; and the EPA Regional offices responsible for implementation and enforcement of regulations under 40 CFR parts 59, 60, 61, 63, and 65.
You may access copies of the broadly applicable alternative test method approval documents at
This notice identifies broadly applicable alternative test methods that the EPA approved in 2023 under the NSPS, 40 CFR part 60, and the NESHAP and 40 CFR part 63 programs. See Table 1 of this notice for the summary of these test methods. Source owners and operators may voluntarily use these broadly applicable alternative test methods in lieu of otherwise required test methods or related testing procedures. Use of these broadly applicable alternative test methods are not intended to, and should not, change the applicable emission standards.
The Administrator has the authority to approve the use of alternative test methods for compliance with requirements under 40 CFR parts 59, 60, 61, 63, and 65. This authority is found in 40 CFR 60.8(b)(3), 61.13(h)(1)(ii), and 63.7(e)(2)(ii). Additional and similar authority can be found in 40 CFR 59.104(f) and 65.158(a)(2). The criteria for approval and procedures for submission and review of broadly applicable alternative test methods are explained in a previous
As also explained in the January 30, 2007 notice, our approval decisions involve thorough technical reviews of numerous source-specific requests for alternatives and modifications to test methods and procedures. Based on these reviews, we have often found that these modifications or alternatives would be equally valid and appropriate to apply to other sources within a particular class, category, or subcategory. Consequently, we have concluded that where either a method modification or an alternative method is clearly broadly applicable to a class, category, or subcategory of sources, it is both equitable and efficient to
Use of approved alternative test methods is not mandatory but rather permissive. Sources are not required to employ such a method but may choose to do so in appropriate circumstances. As specified in 40 CFR 63.7(f)(5), however, a source owner or operator electing to use an alternative method for 40 CFR part 63 standards must continue to use the alternative method until otherwise authorized. Source owners or operators should, therefore, review the specific broadly applicable alternative method approval decision at
This notice specifies five broadly applicable alternative test methods that the EPA approved between January 1, 2023, and December 31, 2023. The alternative method decision letter/memo designation numbers, test methods affected, sources allowed to use this alternative, and method modifications or alternative methods allowed are summarized in Table 1 of this notice. A summary of approval documents was previously made available on our Technology Transfer Network between January 1, 2023, and December 31, 2023. For more detailed information, please refer to the complete copies of these approval documents available at
As also explained in our January 30, 2007 notice, we will revisit approvals of alternative test methods in response to written requests or objections indicating that a particular approved alternative test method either should not be broadly applicable or that its use is not appropriate or should be limited in some way. Any objection to a broadly applicable alternative test method, as well as the resolution of that objection, will be announced at
Environmental Protection Agency (EPA).
Notice.
EPA is announcing the availability of a Request for Information (RFI) that seeks public comment to inform the design of its National Farmworker Training and Education Program (NFTEP). The NFTEP will be a series of assistance agreements to conduct pesticide safety trainings for farmworkers and farmworker communities, create pesticide safety educational and training materials, and develop innovative outreach and delivery strategies. The Pesticide Registration Improvement Act of 2022 (PRIA 5) included set-asides of up to $7.5 million in total for fiscal years 2023-2027 to fund the NFTEP. PRIA 5 also requires EPA to seek input from persons who conduct farmworker education and training to inform the program's Notices of Funding Opportunities (NOFOs), formerly called Requests for Applications (RFAs). EPA has previously solicited input on its PRIA-funded worker protection activities, including cooperative agreements, through the Pesticide Program Dialogue Committee (PPDC), which includes representatives of farmworker-serving organizations.
Submit your comments on or before March 25, 2024.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2023-0643, through the Federal eRulemaking Portal at
Isabel Gross, Office of Chemical Safety and Pollution Prevention, Pesticide Re-evaluation Division (7508M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 566-1741; email address:
This notice is directed to the general public and may be of specific interest to entities that conduct education and training of farmworkers (
The Pesticide Registration Improvement Act of 2022 (referred to as PRIA 5), Public Law 117-328, amended the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136
Under PRIA section 703(a)(1)(G)(i), the NFTEP should provide assistance agreements to facilitate training and education for farmworkers and farmworker communities on pesticide safety, rights related to pesticide safety, and the Worker Protection Standard; to develop educational and training materials; and to develop and test innovative outreach and delivery strategies to better reach farmworkers and farmworker communities with these trainings and materials.
PRIA section 703(a)(1)(G)(iii), specifies that only community-based nonprofit farmworker organizations are eligible to receive this funding. Section 703(a)(1)(G)(ii) of PRIA 5 further states that, in order to be eligible to receive this funding, the community-based nonprofit farmworker organizations must also have experience providing training and education services for farmworkers or pesticide handlers, or experience developing informational materials for farmworkers or pesticide handlers.
The purpose of the RFI is to solicit additional feedback from a broad array of individuals and organizations with applicable knowledge and expertise. Additional public input, including environmental justice perspectives, will help the Agency refine the NOFOs and more effectively address the disproportionate impact of pesticide illness and injury on farmworker communities. This action satisfies PRIA section 703(a)(1)(K)(iv) which requires that EPA seek, in an open and transparent manner that does not provide a competitive advantage to any person or persons, input from persons who conduct farmworker education and training.
Do not submit CBI to EPA through
When preparing and submitting your comments, see Tips for Effective Comments at
EPA previously solicited feedback on its PRIA-funded worker protection activities, including cooperative agreements, from the Pesticide Programs Dialogue Committee (PPDC), a Federal Advisory Committee group. The PPDC's Farmworker and Clinician Workgroup met monthly for most of a year and included representatives of many different stakeholders, such as community-based farmworker nonprofit organizations, community-based organizations that serve Indian Tribes, university extension programs, industry, State regulators, farm bureaus, other federal agencies, and current EPA grantees. The workgroup formulated a series of recommendations, which the full PPDC then adopted and sent for EPA's consideration. The recommendations can be found at
In the RFI, the Agency has proposed elements of program designs and activities to be funded under the NFTEP; it has also posed a series of related questions, though commenters may address aspects of the program not discussed in the questions. Generally, EPA is interested in comments about how to meaningfully involve farmworker communities in the NFTEP assistance agreements, farmworker communities' specific language and training needs, successful outreach and delivery strategies, and priority areas for assistance agreements. For the specific elements of the proposed program designs, please consult the RFI document available in the docket. EPA's questions are as follows:
• How can EPA support meaningful, consistent involvement of farmworker communities in the design and implementation of these programs, understanding that they face many barriers to involvement?
• Are there others who could be considered part of farmworker communities who are not captured in the “Definitions” section of the RFI?
• What are the barriers to applying for and successfully managing these agreements, for the organizations described in the “Eligibility” section of the RFI?
• What specific languages (besides Spanish) should these agreements prioritize for trainings, materials development, and translations?
• How can EPA support translations that are both technically accurate and appropriate to farmworker communities' literacy levels and cultural context?
• What trainings are needed to reinforce and supplement the required annual WPS pesticide safety trainings for workers and handlers?
• What educational gaps exist for pesticide handlers (see the “Definitions” section of the RFI), specifically, who may be considered part of farmworker communities but have additional responsibilities under the WPS?
• What are examples of successful outreach strategies to ensure that farmworker communities have access to pesticide safety information and trainings?
• Should EPA select awards based in part on geographic areas and crops (use sites)?
In addition to soliciting comment on the questions posed in Unit III.A. of this document, EPA is seeking stakeholder input on the RFI document. EPA is interested in comments about how to meaningfully involve farmworker communities in the NFTEP assistance agreements, farmworker communities' specific language and training needs, successful outreach and delivery strategies, and priority areas for assistance agreements.
EPA encourages all potentially interested parties, including individuals, governmental and non-governmental organizations, non-profit organizations, community-based organizations, labor organizations, academic institutions, research institutions, community health centers and clinics, public health administration and environmental health administration programs, and private sector entities to comment on the RFI and to answer any of the questions posed. To the extent possible, the Agency asks commenters to please cite any public data related to or that supports the responses, and to the extent permissible, describe any supporting data that is not publicly available.
Federal Communications Commission.
Notice.
In this document, the Commission released a public notice announcing two meetings of the North American Numbering Council (NANC).
March 1, 2024 and June 25, 2024. The meeting on March 1, 2024, will come to order at 10:00 a.m. ET and the meeting on June 25, 2024, will come to order at 2:00 p.m. ET.
The meetings will be conducted in person in the Commission Meeting Room of the Federal Communications Commission, 45 L Street NE, Washington, DC and via the internet at
You may also contact Christi Shewman, Designated Federal Officer, at
The NANC meetings will be held Friday, March 1, 2024 at 10:00 a.m. ET and Tuesday, June 25 at 2:00 p.m. ET in person in the Commission Meeting Room of the Federal Communications Commission, 45 L Street NE, Washington, DC and via the internet at
This is a summary of the Commission's document in WC Docket No. 23-1, DA 24-50, released January 17, 2024.
At the June 25, 2024 meeting, the NANC will consider and vote on recommendations from the following Working Groups:
• The T-FUN Working Group regarding 800 toll free numbers;
• The Call Authentication Trust Anchor Working Group regarding the regulatory treatment of international cellular roaming traffic;
• The Internet of Things Numbering Usage Working Group regarding the use of North American Numbering Plan numbers for the routing and addressing of Internet of Things communications; and
• The NAOWG regarding (1) the Numbering Administration Performance Review; and (2) the North American Numbering Plan Fund Size Projections and Contribution Factor.
The NANC will also hear a report from the Billing & Collection Agent, Welch LLP. Either of these agendas may be modified at the discretion of the NANC Chairwoman and the Designated Federal Officer.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before March 25, 2024. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
On December 11, 2023, the Commission adopted a Report and Order, FCC 23-112, to implement the Low Power Protection Act (LPPA or Act), which was enacted on January 5, 2023. The LPPA provides certain low power television (LPTV) stations with a limited window of opportunity to apply for primary spectrum use status as Class A television stations. The Report and Order establishes the period during which eligible stations may file applications for Class A status, eligibility and interference requirements, and the process for submitting applications.
The Report and Order adopts new rules 47 CFR 73.6030(c) and (d) which contain information collections. Section 73.6030(c) provides that applications for conversion to Class A status must be submitted using FCC Form 2100, Schedule F within one year beginning on the date on which the Commission issues notice that the rules implementing the Low Power Protection Act take effect. The licensee will be required to submit, as part of its application, a statement concerning the station's operating schedule during the 90 days preceding January 5, 2023 and a list of locally produced programs aired during that time period. The applicant may also submit other documentation, or may be requested by Commission staff to submit other documentation, to support its certification that the licensee meets the eligibility requirements for a Class A license under the Low Power Protection Act. Section 73.6030(d) provides that A Class A television broadcast license will only be issued under the Low Power Protection Act to a low power television licensee that files an application for a Class A Television license (FCC Form 2100, Schedule F), which is granted by the Commission.
Under this new information collection, the Commission will collect the information, disclosures, and certifications required by sections 73.6030(c) and (d) of the Commission's rules from each applicant seeking to convert to Class A status and will use the information, disclosures, and certifications to determine whether an applicant is qualified to convert to a Class A station. Without the information
Statutory authority for the collection of information associated with the CBPA is contained in Sections 154(i), 307, 308, 309, and 319 of the Communications Act of 1934, as amended, the Community Broadcasters Protection Act of 1999, and the Middle Class Tax Relief and Job Creation Act of 2012.
On December 11, 2023, the Commission adopted a
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
Written PRA comments should be submitted on or before March 25, 2024. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Section 9.10(i)(4)(iv) requires all CMRS providers to certify “that neither they nor any third party they rely on to obtain dispatchable location information will use dispatchable location information or associated data for any non-911 purpose, except with prior express consent or as otherwise required by law.” In addition, “[t]he certification must state that CMRS providers and any third party they rely on to obtain dispatchable location information will implement measures sufficient to safeguard the privacy and security of dispatchable location information.” Under 47 CFR 9.10(i)(4)(v), all CMRS providers must certify “that neither they nor any third party they rely on to obtain z-axis information will use z-axis information or associated data for any non-911 purpose, except with prior express consent or as otherwise required by law.” Further, “[t]he certification must state that CMRS providers and any third party they rely on to obtain z-axis information will implement measures sufficient to safeguard the privacy and security of z-axis location information.” The Commission obtained OMB approval for the information collections contained in these certifications after adopting the Fourth Report and Order, Fifth Report and Sixth Report and Order under OMB Control No. 3060-1210. The Sixth Report and Order modified these information collections slightly by deleting references to the National Emergency Address Database (NEAD), which has been discontinued and will not be available to CMRS providers.
Section 9.10(i)(3)(ii) requires CMRS providers that serve any of the six Test Cities identified by ATIS (Atlanta, Denver/Front Range, San Francisco, Philadelphia, Chicago, and Manhattan Borough of New York City) or portions thereof to collect and report aggregate data on the location technologies used for live 911 calls. As discussed below, in 2018, the Commission developed a reporting template to assist CMRS providers in collecting, formatting, and submitting aggregate live 911 call data in accordance with the requirements in the rules. After adopting the Fifth Report and Order, the Commission indicated that it would modify the live call template to include vertical location. We have since modified the form to include z-axis (vertical) location information from live calls in addition to horizontal location information. Specifically, the template includes fields for reporting the percentage of total 911 calls that result in dispatchable location or z-axis location information by morphology and position technology and for reporting z-axis deployment options used for 911 calls, and OMB approved that modification.
Section 9.10(j)(4) requires CMRS providers to supply confidence and uncertainty (C/U) information with wireless E911 calls that have dispatchable location or z-axis information and to do so in accordance with the timelines for vertical location accuracy compliance. As noted below, OMB previously approved and renewed a C/U data requirement for horizontal location information under OMB Control No. 3060-1204. (
Under Section 9.10(k), CMRS providers must record information on all live 911 calls, including the C/U data that they provide to PSAPs under Section 9.10(j) of the rules. In addition, Section 9.10(k) requires CMRS providers to make this information available to PSAPs upon request and to retain it for a period of two years. The Commission obtained OMB approval for the information collections contained in Section 9.10(k) after adopting the Fourth Report and Order. The Sixth Report and Order amended Section 9.10(k) to make explicit that the requirements in the rule extend to C/U data for dispatchable location and floor-level information, as well as for z-axis information. This eliminated a potential gap in the rule, which previously referred only to z-axis information.
Section 9.10(i)(2)(ii)(J)(
Section 9.10(i)(2)(ii)(A) requires that within three years of the effective date of the rule, CMRS providers shall deliver uncompensated barometric pressure data from any device capable of delivering such data to PSAPs. This requirement is necessary to ensure that PSAPs are receiving all location information possible to be used for dispatch. This requirement is also necessary to ensure that CMRS providers implement a vertical location solution in the event that the proposed “dispatchable location” solution does not function as intended by the three-year mark and beyond.
Section 9.10(i)(2)(ii)(B) requires that the four nationwide providers submit to the Commission for review and approval a reasonable metric for z-axis (vertical) location accuracy no later than 3 years from the effective date of rules. This requirement is critical to ensure that the vertical location framework adopted in the Fourth Report and Order is effectively implemented.
Section 9.10(i)(2)(iii) requires CMRS providers to certify compliance with the Commission's rules at various benchmarks throughout implementation of improved location accuracy. This requirement is necessary to ensure that CMRS providers remain “on track” to reach the location accuracy benchmarks.
Section 9.10(i)(2)(iv) provides that PSAPs may seek Commission enforcement of the location accuracy requirements within their geographic service area, but only so long as they have implemented policies that are designed to obtain all location information made available by CMRS providers when initiating and delivering 911 calls to the PSAP. Prior to seeking Commission enforcement, a PSAP must provide the CMRS provider with 30 days written notice, and the CMRS provider shall have an opportunity to address the issue informally. If the issue has not been addressed to the PSAP's satisfaction within 90 days, the PSAP may seek enforcement relief.
Section 9.10(i)(3)(i) requires that within 12 months of the effective date, the four nationwide CMRS providers must establish the test bed described in
Section 9.10(i)(3)(ii) requires that beginning 18 months from the effective date of the rules, CMRS providers providing service in any of the six Test Cities identified by ATIS (Atlanta, Denver/Front Range, San Francisco, Philadelphia, Chicago, and Manhattan Borough of New York City) or portions thereof must collect and report aggregate data on the location technologies used for live 911 calls. Nationwide CMRS providers must submit call data on a quarterly basis; non-nationwide CMRS providers need only submit this data every six months. Non-nationwide providers that do not provide service in any of the Test Cities may satisfy this requirement by collecting and reporting data based on the largest county within the carrier's footprint. This reporting requirement is necessary to validate and verify the compliance certifications made by CMRS providers.
The Commission developed a reporting template to assist CMRS providers in collecting, formatting, and submitting aggregate live 911 call data in accordance with the requirements in the rules. The template will also assist the Commission in evaluating the progress CMRS providers have made toward meeting the 911 location accuracy benchmarks. The template is an Excel spreadsheet and will be available for downloading on the Commission's website. The Commission may also develop an online filing mechanism for these reports in the future.
Section 9.10(i)(3)(iii) requires CMRS providers to retain testing and live call data gathered pursuant to this section for a period of 2 years.
Section 9.10(i)(4)(i) provides that no later than 18 months from the effective date of the adoption of the rule, nationwide CMRS providers shall report to the Commission their initial plans for meeting the indoor location accuracy requirements of paragraph (i)(2) of Section 9.10. Non-nationwide CMRS providers will have an additional 6 months to submit their implementation plan.
Section 9.10(i)(4)(ii) requires that no later than 18 months from the effective date, each CMRS provider shall submit to the Commission a report on its progress toward implementing improved indoor location accuracy. Non-nationwide CMRS providers will have an additional 6 months to submit their progress reports. All CMRS providers shall provide an additional progress report no later than 36 months from the effective date of the adoption of this rule. The 36-month reports shall indicate what progress the provider has made consistent with its implementation plan.
Section 9.10(i)(4)(iii) requires that prior to activation of the NEAD but no later than 18 months from the effective date of the adoption of this rule, the nationwide CMRS providers shall file with the Commission and request approval for a security and privacy plan for the administration and operation of the NEAD.
Section 9.10(i)(4)(iv) requires CMRS providers to certify “that neither they nor any third party they rely on to obtain dispatchable location information will use dispatchable location information or associated data for any non-911 purpose, except with prior express consent or as otherwise required by law.” In addition, “[t]he certification must state that CMRS providers and any third party they rely on to obtain dispatchable location information will implement measures sufficient to safeguard the privacy and security of dispatchable location information.” As noted above, the Commission has revised this requirement to account for the fact that the NEAD has been discontinued.
Section 9.10(i)(4)(v) requires that prior to use of z-axis information to meet the Commission's location accuracy requirements, CMRS providers must certify “that neither they nor any third party they rely on to obtain z-axis information will use z-axis information or associated data for any non-911 purpose, except with prior express consent or as otherwise required by law.” Further, “[t]he certification must state that CMRS providers and any third party they rely on to obtain z-axis information will implement measures sufficient to safeguard the privacy and security of z-axis location information.” This requirement is necessary to ensure the privacy and security of any personally identifiable information that may be collected by the CMRS provider. As noted above, the Commission has revised this requirement to account for the fact that the NEAD has been discontinued.
Section 9.10(j) requires CMRS providers to provide standardized confidence and uncertainty (C/U) data for all wireless 911 calls, whether from outdoor or indoor locations, on a per-call basis upon the request of a PSAP. This requirement makes the use of C/U data easier for PSAPs.
Section 9.10(j)(4) also requires that upon meeting the timeframes pursuant to paragraphs (i)(2)(ii)(C) and (D) of this section, CMRS providers shall provide with wireless 911 calls that have dispatchable location or z-axis (vertical) information the C/U data required under paragraph (j)(1) of this section. Where available to the CMRS provider, floor level information must be provided with associated C/U data in addition to z-axis location information.
Section 9.10(k) requires CMRS providers to record information on all live 911 calls, including but not limited to the positioning source method used to provide a location fix associated with the call, as well as confidence and uncertainty data. This information must be made available to PSAPs upon request, as a measure to promote transparency and accountability for this set of rules.
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), Federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by February 26, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, please access the CMS PRA website by copying and pasting the following web address into your web browser:
William Parham at (410) 786-4669.
Under the Paperwork Reduction Act of 1995 (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. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to publish a 30-day notice in the
1.
CMS requires that MA and PDP organizations submit a completed PBP and formulary as part of the annual bidding process. During this process, organizations prepare their proposed plan benefit packages for the upcoming contract year and submit them to CMS for review and approval. CMS uses this data to review and approve the benefit packages that the plans will offer to Medicare beneficiaries. This allows CMS to review the benefit packages in a consistent way across all submitted bids during with incredibly tight timeframes. This data is also used to populate data on Medicare Plan Finder, which allows beneficiaries to access and compare Medicare Advantage and Prescription Drug plans.
2.
This revision package supports evaluation of the technical assistance provided by the QINQIO Program to nursing homes and outpatient clinicians in community settings, and Hospital Quality Improvement Contractors (HQIC) Program activities to support hospitals. This ICR is part of a larger evaluation of the overall impact of the NQIIC Program.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for a limited number of establishments to participate in a voluntary Quality Management Maturity Prototype Assessment Protocol Evaluation Program involving the use of a prototype assessment protocol to evaluate quality management maturity (QMM). The Center for Drug Evaluation and Research (CDER) is implementing this voluntary program for manufacturers of CDER-regulated drug products to gain experience with the prototype assessment protocol and to evaluate whether use of the protocol, as designed, will enable a meaningful assessment of the establishment's
FDA intends to accept requests to participate in the voluntary QMM Prototype Assessment Protocol Evaluation Program through March 25, 2024. See the “Participation” section of this document for instructions on submitting a request to participate and the selection process.
QMM refers to the extent to which drug manufacturing establishments implement quality management practices that prioritize patients, drive continual improvement, and enhance supply chain reliability through the strategic integration of business decisions and manufacturing operations with quality practices and technological advancements. CDER is in the process of developing a voluntary program to promote QMM at drug manufacturing establishments, which would encourage drug manufacturers to implement quality management practices that go beyond current good manufacturing practice (CGMP) requirements.
As part of the QMM program initiative, CDER is developing a QMM Assessment Tool (including both a protocol and rubric) to evaluate how effectively establishments monitor and manage quality and quality systems.
Between October 2020 and March 2022, CDER conducted under contract two pilot programs to assess the QMM of drug manufacturing establishments. The first pilot program evaluated the maturity of seven domestic manufacturers of finished dosage forms for the U.S. market (Ref. 1). The second pilot program evaluated the maturity of eight foreign manufacturers of active pharmaceutical ingredients (APIs) (Ref. 2). Each pilot program was conducted by a different contractor. These pilot programs provided valuable insights to CDER for developing a protocol to assess establishments' QMM, understanding assessor behaviors during interviews of establishment personnel, and gathering participant feedback on assessment questions, reports, and outcomes (Ref. 3).
Using findings from these two pilot programs, a review of the quality management maturity literature, evaluations of existing external programs assessing elements of quality culture or pharmaceutical quality, surveys of external stakeholders, and feedback from partner offices and centers within FDA, CDER has developed a prototype assessment protocol to evaluate an establishment's QMM. The prototype assessment protocol includes a series of questions in five practice areas: leadership, business continuity, technical excellence, advanced pharmaceutical quality system, and employee empowerment and engagement. Within each practice area, the prototype assessment protocol explores key elements of the establishment's QMM. Examples of some topics that may be covered under the practice areas include: management review and resource management (management commitment to quality), supply planning and demand forecasting (business continuity), corrective action and preventive action process (advanced pharmaceutical quality system), data governance and process optimization (technical excellence), and rewards and recognition (employee engagement and empowerment). CDER will use the standardized prototype assessment protocol to collect information on an establishment's executed practices, behaviors, and responses to specific questions, and will evaluate this information using an objective rubric to help identify areas of strength and potential areas with opportunities for improvement.
Prototype assessment protocols will be conducted by trained assessors who will engage directly with establishments, either onsite or in a hybrid (both virtual and onsite) environment. Assessments are anticipated to take up to five business days and are distinct from FDA's regulatory inspections.
CDER will consider the following establishment characteristics when identifying potential participants for this QMM Prototype Assessment Protocol Evaluation Program:
• The potential participant is an establishment as defined in 21 CFR 207.1 that registers with FDA under section 510 (21 U.S.C. 360) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) and manufactures, prepares, propagates, compounds, or processes drugs, or APIs used in such drugs, subject to approval or licensure under section 505 (21 U.S.C. 355) of the FD&C Act or section 351 of the Public Health Service Act (42 U.S.C. 262), or that are marketed pursuant to section 505G of the FD&C Act without an approved application under section 505 of the FD&C Act (often referred to as over-the-counter (OTC) monograph drug products).
• The establishment received at least one human drug surveillance inspection
• The current inspection classification for the establishment at the time of the request to participate is No Action Indicated or Voluntary Action Indicated.
• The establishment manufactures, prepares, propagates, compounds, or processes at least one CDER-regulated drug (API or finished drug product) that
• The establishment is willing to participate in an onsite or hybrid assessment.
Drug product manufacturers that are eligible and interested in participating in the voluntary QMM Prototype Assessment Protocol Evaluation Program should submit a request directly to Conchetta Newton (see
FDA intends to select participants that reasonably reflect the diversity of the industry. FDA intends to notify each establishment of FDA's decision on their request to participate in the voluntary QMM Prototype Assessment Protocol Evaluation Program within 90 days of receipt. FDA intends to select up to nine volunteer participants for this program.
FDA intends to notify selected participants of their selection and confirm participation. This notification will include more information about engagement with the Agency, including an orientation and a pre-assessment questionnaire to assist the establishment in preparing for the assessment, logistical information such as options for dates and times to schedule the assessment, and recommendations for establishment personnel that should be available during the assessment. Teams of three assessors will conduct the prototype assessment protocol over a period that is expected to be up to five business days. Each team will be composed of CDER staff, or a combination of CDER staff and contractors. Following completion of the assessment, each participating establishment will receive a report summarizing areas of strength and growth opportunities. In addition, approximately 6 months after the assessment, FDA will followup with a virtual meeting to get feedback on the prototype assessment protocol, the report, and any limitations encountered. This will help the Agency evaluate use of the protocol, including whether it enables meaningful assessment of the establishment's quality management practices and if feedback for the establishment is actionable.
The following references marked with an asterisk (*) are on display at the Dockets Management Staff (see
* 1. Quality Management Maturity for Finished Dosage Forms Pilot Program for Domestic Drug Product Manufacturers; Program Announcement,” 85 FR 65824, October 16, 2020,
* 2. “Quality Management Maturity for Active Pharmaceutical Ingredients Pilot Program for Foreign Facilities; Program Announcement,” 85 FR 65828, October 16, 2020,
3. J. Maguire, A. Fisher, D. Harouaka, N. Rakala, et al., 2023, “Lessons from CDER's Quality Management Maturity Pilot Programs,”
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing the issuance of Emergency Use Authorizations (EUAs) (the Authorizations) for certain medical devices related to Coronavirus Disease 2019 (COVID-19). FDA has issued the Authorizations listed in this document under the Federal Food, Drug, and Cosmetic Act (FD&C Act). These Authorizations contain, among other things, conditions on the emergency use of the authorized products. The Authorization follows the February 4, 2020, determination by the Secretary of Health and Human Services (HHS), as amended on March 15, 2023, that there is a public health emergency, or a significant potential for a public health emergency, that affects, or has a significant potential to affect, national security or the health and security of U.S. citizens living abroad and that involves the virus that causes COVID-19, and the subsequent declarations on February 4, 2020, March 2, 2020, and March 24, 2020, that circumstances exist justifying the authorization of emergency use of in vitro diagnostics for detection and/or diagnosis of the virus that causes COVID-19, personal respiratory protective devices, and medical devices, including alternative products used as medical devices, respectively, subject to the terms of any authorization issued under the FD&C Act. These Authorizations, which include an explanation of the reasons for issuance, are listed in this document, and can be accessed on FDA's website from the links indicated.
These Authorizations are effective on their date of issuance.
Submit written requests for single copies of an EUA to the Office of Policy, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5431, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request or include a fax number to which the Authorization may be sent. See the
Kim Sapsford-Medintz, Office of Product Evaluation and Quality, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3216, Silver Spring, MD 20993-0002, 301-796-0311 (this is not a toll-free number).
Section 564 of the FD&C Act (21 U.S.C. 360bbb-3) allows FDA to strengthen the public health protections against biological, chemical, radiological, or nuclear agent or agents. Among other things, section 564 of the FD&C Act allows FDA to authorize the use of an unapproved medical product or an unapproved use of an approved medical product in certain situations. With this EUA authority, FDA can help ensure that medical countermeasures may be used in emergencies to diagnose, treat, or prevent serious or life-threatening diseases or conditions caused by a biological, chemical, radiological, or nuclear agent or agents when there are no adequate, approved, and available alternatives.
Section 564(b)(1) of the FD&C Act provides that, before an EUA may be issued, the Secretary of HHS must declare that circumstances exist justifying the authorization based on one of the following grounds: (1) a determination by the Secretary of Homeland Security that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a biological, chemical, radiological, or nuclear agent or agents; (2) a determination by the Secretary of Defense that there is a military emergency, or a significant potential for a military emergency, involving a heightened risk to U.S. military forces, including personnel operating under the authority of title 10 or title 50 of the U.S. Code, of attack with (A) a biological, chemical, radiological, or nuclear agent or agents; or (B) an agent or agents that may cause, or are otherwise associated with, an imminently life-threatening and specific risk to U.S. military forces;
Once the Secretary of HHS has declared that circumstances exist justifying an authorization under section 564 of the FD&C Act, FDA may authorize the emergency use of a drug, device, or biological product if the Agency concludes that the statutory criteria are satisfied. Under section 564(h)(1) of the FD&C Act, FDA is required to publish in the
An electronic version of this document and the full text of the Authorizations are available on the internet and can be accessed from
Having concluded that the criteria for the issuance of the following Authorizations under section 564(c) of the FD&C Act are met, FDA has authorized the emergency use of the following products for diagnosing, treating, or preventing COVID-19 subject to the terms of each Authorization. The Authorizations in their entirety, including any authorized fact sheets and other written materials, can be accessed from the FDA web page entitled “Emergency Use Authorization,” available at
FDA is hereby announcing the following Authorizations for molecular
• Azure Biotech, Inc.'s Azure Fatep COVID-19 Antigen Pen Home Test, issued April 14, 2023;
• MedArbor, LLC dba MedArbor Diagnostics' MedArbor Diagnostics SARS-CoV-2 Assay, issued April 19, 2023;
• Princeton BioMeditech Corp's Status COVID-19 Antigen Rapid Test for Home Use, issued April 24, 2023;
• University of Massachusetts' ICTC SARS-CoV-2 RT-PCR Assay, issued April 26, 2023;
• Drexel University College of Medicine's SARS-CoV-2 DUCoM-PDL Modified Tetracore Assay, issued on April 28, 2023;
• Access Medical Laboratories, Inc.'s Global Direct RT-PCR Test, issued on May 3, 2023;
• Nano-Ditech Corporation's Nano-Check COVID-19 Antigen At-Home Test, issued on May 12, 2023;
• BioTeke USA, LLC's Bio-Self COVID-19 Antigen Home Test, issued on May 22, 2023;
• Acutis Diagnostics' SARS-CoV-2 Acutis Multiplex Assay, issued on June 06, 2023;
• Michigan State University laboratories, Department of Medicine Olin Student Health Center's In-Dx SARS-CoV-2 RT-LAMP Assay, issued on June 08, 2023;
• Discover Labs' Discover Labs COVID-19 Assay, issued on June 30, 2023;
• Immunostics Inc.'s Swab-N-Go Home Test COVID-19 Ag, issued on July 17, 2023;
• Alphadera Labs, LLC's ALPHADx SARS-COV-2RT-PCR Test, issued on July 20, 2023;
• Laboratory Corporation of America's Clear Dx SARS-CoV-2 WGS v3.0 Test, issued on August 1, 2023; and
• 3EO Health, Inc.'s 3EO Health COVID-19 Test, issued on September 19, 2023.
• Tangen Biosciences, Inc.'s TangenDx SARS-CoV-2 Molecular Test, issued September 29, 2023;
• SD Biosensor, Inc.'s STANDARD Q COVID-19 Ag Test 2.0, issued September 29, 2023;
• MAWD Laboratories' MAWD Laboratories SARS-CoV-2 Dual Target by RT-PCR, issued on October 13, 2023;
• RCA Laboratory Services LLC dba GENETWORx's Gx HTIQ SARS-CoV-2 Test, issued December 08, 2023; and
• RCA Laboratory Services LLC dba GENETWORx's Gx HTKB SARS-CoV-2 Test, issued on December 08, 2023.
FDA is hereby announcing the following Authorizations for multianalyte tests:
• Princeton BioMeditech Corp's ViraDx SARS-CoV-2/Flu A+B Rapid Antigen Test, issued on September 8, 2023.
• Roche Molecular Systems's cobas SARS-CoV-2 & Influenza A/B v2, issued on November 16, 2023.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for CABENUVA and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that human drug product.
Anyone with knowledge that any of the dates as published (see
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the
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
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6250, Silver Spring, MD 20993, 301-796-3600.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug or biologic product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: a testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA has approved for marketing the human drug product CABENUVA (cabotegravir and rilpivirine). CABENUVA is indicated as a complete regimen for the treatment of HIV-1 infection in adults to replace the current antiretroviral regimen in those who are virologically suppressed (HIV-1 RNA less than 50 copies per mL) on a stable antiretroviral regimen with no history of treatment failure and with no known or suspected resistance to either cabotegravir or rilpivirine. Subsequent to this approval, the USPTO received a patent term restoration application for CABENUVA (U.S. Patent No. 8,410,103) from ViiV Healthcare Company and Shionogi & Co., Ltd. and the USPTO requested FDA's assistance in determining the patent's eligibility for patent term restoration. In a letter dated September 28, 2022, FDA advised the USPTO that this human drug product had undergone a regulatory review period and that the approval of CABENUVA represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for CABENUVA is 4,719 days. Of this time, 4,085 days occurred during the testing phase of the regulatory review period, while 634 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,742 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit either electronic or written
Submit petitions electronically to
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry (GFI) #286 (VICH GL60) entitled “Good Manufacturing Practice for Active Pharmaceutical Ingredients Used in Veterinary Medicinal Products.” This draft guidance has been developed for veterinary use by the International Cooperation on Harmonisation of Technical Requirements for Registration of Veterinary Medicinal Products (VICH). The objective of this draft guidance is to provide recommendations regarding good manufacturing practice (GMP) for the manufacturing of active pharmaceutical ingredients (APIs) under an appropriate system for managing quality. It is also intended to help ensure that APIs meet the requirements for quality and purity that they purport or are represented to possess.
Submit either electronic or written comments on the draft guidance by March 25, 2024 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the guidance to the Policy and Regulations Staff (HFV-6), Center for Veterinary Medicine, Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See
Mai Huynh, Center for Veterinary Medicine (HFV-140), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-0669,
FDA is announcing the availability of a draft guidance for industry GFI #286 (VICH GL60) entitled “Good Manufacturing Practice for Active Pharmaceutical Ingredients Used in Veterinary Medicinal Products.” The objective of this guidance is to provide recommendations regarding GMP for the manufacturing of APIs under an appropriate system for managing quality. It is also intended to help ensure that APIs meet the requirements for quality and purity that they purport or are represented to possess.
FDA has participated in efforts to enhance international harmonization and is committed to seeking scientifically based harmonized technical procedures for pharmaceutical development. One of the goals of harmonization is to identify, and then reduce, differences in technical requirements for drug development among regulatory agencies in different countries. FDA has actively participated in the International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use to develop harmonized technical requirements for the approval of human pharmaceutical and biological products among the European Union, Japan, and the United States. The VICH is a parallel initiative for veterinary medicinal products. The VICH is concerned with developing harmonized technical requirements for the approval of veterinary medicinal products in the European Union, Japan, and the United States, and includes input from both regulatory and industry representatives.
The VICH Steering Committee is composed of member representatives from the European Commission and European Medicines Agency; AnimalhealthEurope; FDA—Center for Veterinary Medicine and U.S. Department of Agriculture—Center for Veterinary Biologics; the U.S. Animal Health Institute; the Japanese Ministry of Agriculture, Forestry and Fisheries; and the Japanese Veterinary Products Association. There are 10 observers to the VICH Steering Committee: one representative from government and one representative from industry of Australia, New Zealand, Canada, South Africa, and the United Kingdom. The World Organisation for Animal Health is an associate member of the VICH. The VICH Secretariat, which coordinates the preparation of documentation, is provided by HealthforAnimals.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Good Manufacturing Practice for Active Ingredients Used in Veterinary Medicinal Products.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. The previously approved collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in 21 CFR part 514 have been approved under OMB control number 0910-0032; and the collections of information in section 512(n)(1) of the FD&C Act (21 U.S.C. 360b(n)(1)) have been approved under OMB control number 0910-0669.
Persons with access to the internet may obtain the draft guidance at
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 “Revising ANDA Labeling Following Revision of the RLD Labeling.” This guidance provides recommendations for updating labeling for abbreviated new drug applications (ANDAs) following revisions to the labeling of a reference listed drug (RLD), including information on how to identify RLD labeling updates and how to submit labeling updates to both unapproved and approved ANDAs to conform to RLD labeling updates. This guidance finalizes the draft guidance for industry of the same title issued on January 27, 2022.
The announcement of the guidance is published in the
You may submit electronic or written comments on Agency guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the 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. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Jonathan Hughes, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 75, Rm. 1688, Silver Spring, MD 20993-0002, 301-796-9291,
FDA is announcing the availability of a guidance for industry entitled “Revising ANDA Labeling Following Revision of the RLD Labeling.” This guidance provides recommendations for updating labeling for ANDAs following revisions to the labeling of an RLD, including information on how to identify RLD labeling updates and how to submit labeling updates to both unapproved and approved ANDAs to conform to RLD labeling updates.
A generic drug is generally required to have the same labeling as the RLD, except for changes required because of differences approved under a suitability petition (see section 505(j)(2)(C) of the Federal Food, Drug, and Cosmetic Act (FD&C Act)) (21 U.S.C. 355(j)(2)(C) and 21 CFR 314.93) or because the generic drug and the RLD are produced or distributed by different manufacturers (see
An ANDA holder is expected to update its labeling after FDA has approved relevant changes to the labeling for the corresponding RLD. Prompt revision, submission to the Agency, and implementation of revised labeling are important to ensure that the generic drug continues to be as safe and effective as the corresponding RLD. Because the labeling of a generic drug must be the same as the labeling for the RLD, except for permissible differences, the revision should be made at the earliest time possible.
In this guidance, FDA is providing information on how ANDA applicants and holders should monitor for changes to RLD labeling, procedures for the electronic submission of labeling updates, information describing the type of submission that should be made to FDA, as well as other considerations for submitting a labeling update to FDA.
This guidance finalizes the draft guidance for industry of the same title issued on January 27, 2022 (87 FR 4252). The January 2022 draft guidance revised the final guidance for industry entitled “Revising ANDA Labeling Following Revision of the RLD Labeling” issued in April 2000. FDA considered comments received on the January 2022 draft guidance as the guidance was finalized. Minor revisions from the draft to the final guidance were made 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 “Revising ANDA Labeling Following Revision of the RLD Labeling.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. The previously approved collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521).
The collections of information in part 314 (21 CFR part 314) for the submission of ANDAs (including the content and format of ANDAs and supplements and amendments) have been approved under OMB control number 0910-0001 and in part 314 (included under the 21 CFR parts 10 through 16 hearing regulations) under OMB control number 0910-0191.
The collections of information pertaining to the electronic submission of labeling changes have been approved under OMB control number 0910-0045. The collections of information pertaining to the content and format requirements for human prescription
Persons with access to the internet may obtain the guidance at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for VOCABRIA and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that human drug product.
Anyone with knowledge that any of the dates as published (see
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6250, Silver Spring, MD 20993, 301-796-3600.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug or biologic product, animal drug product, medical device, food additive, or color additive) was subject to
A regulatory review period consists of two periods of time: a testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA has approved for marketing the human drug product, VOCABRIA (cabotegravir sodium) indicated in combination with EDURANT (rilpivirine) for short-term treatment of Human Immunodeficiency Virus-1 (HIV-1) infection in adults who are virologically suppressed (HIV-1 RNA less than 50 copies/mL) on a stable antiretroviral regimen with no history of treatment failure and with no known or suspected resistance to either cabotegravir or rilpivirine, for use as:
• oral lead-in to assess the tolerability of cabotegravir prior to administration of CABENUVA (cabotegravir; rilpivirine) extended-release injectable suspensions and
• oral therapy for patients who will miss planned injection dosing with CABENUVA.
Subsequent to this approval, the USPTO received a patent term restoration application for VOCABRIA (U.S. Patent No. 8,410,103) from ViiV Healthcare Company and the USPTO requested FDA's assistance in determining the patent's eligibility for patent term restoration. In a letter September 28, 2022, FDA advised the USPTO that this human drug product had undergone a regulatory review period and that the approval of VOCABRIA represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for VOCABRIA is 4,719 days. Of this time, 4,085 days occurred during the testing phase of the regulatory review period, while 634 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,742 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit either electronic or written comments and, under 21 CFR 60.24, ask for a redetermination (see
Submit petitions electronically to
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Request for nominations.
HRSA is seeking nominations of qualified candidates to consider for appointment as members of the National Advisory Council on Nurse Education and Practice (NACNEP). NACNEP provides advice and recommendations to the Secretary of HHS (Secretary) on policy, program development, and other matters of significance concerning the activities under Title VIII of the Public Health Service (PHS) Act, including the range of issues relating to the nurse workforce, education, and practice improvement. NACNEP also prepares and submits an annual report to the Secretary and Congress describing its activities, including NACNEP's findings and recommendations concerning activities under Title VIII, as required by the PHS Act. HRSA is seeking nominations of qualified candidates to fill up to 11 open positions on NACNEP.
HRSA will accept nominations for membership on NACNEP on a continuous basis.
Nomination packages may be submitted electronically by email to
Dr. Justin Bala-Hampton, Designated Federal Officer, NACNEP, by phone at (301) 443-2866, or by email at
NACNEP advises and makes recommendations to the Secretary and Congress on policy matters arising in the administration of Title VIII of the PHS Act, including the range of issues relating to the nurse workforce, nursing education, and nursing practice improvement, as a means of enhancing the health of the public through the development of the nurse workforce. NACNEP meets at least twice each calendar year or may meet more frequently at the discretion of the Designated Federal Officer in consultation with the Chair.
Nominees sought are individuals representing leading authorities in the various fields of nursing, higher and secondary education, and associate degree schools of nursing; representatives of advanced education nursing groups (such as nurse practitioners, nurse midwives, clinical nurse specialists, and nurse anesthetists); hospitals and other institutions and organizations which provide nursing services; practicing professional nurses; the general public; and full-time students enrolled in schools of nursing. In making such appointments, the Secretary shall ensure a fair balance between the nursing specialties, a broad geographic representation of members, and a balance between urban and rural members. Members shall be appointed based on their competence, interest, and knowledge of the mission of the profession involved. As required by PHS Act section 851(b)(3), the Secretary shall ensure the adequate representation of minorities. HRSA is particularly interested in seeking nominations from individuals who can represent underrepresented groups in the nursing profession.
The majority of NACNEP members shall be nurses. Interested applicants may self-nominate or be nominated by another individual or organization.
Individuals selected for appointment to NACNEP will be invited to serve a term of 4 years. Members appointed as SGEs receive a stipend and reimbursement for per diem and travel expenses incurred for attending NACNEP meetings and/or conducting other business on behalf of NACNEP, as authorized by section 5 U.S.C. 5703 for persons employed intermittently in government service and PHS Act section 762(g).
The following information must be included in the package of materials submitted for each individual nominated for consideration: (1) if nominated by another individual or organization, a letter of nomination from the nominator stating the basis for the nomination (
HHS endeavors to ensure that the membership of NACNEP is balanced fairly in terms of points of view represented. Appointments shall be made without discrimination of age, race, ethnicity, gender, sexual orientation, or cultural, religious, or socioeconomic status.
Individuals who are selected to be considered for appointment will be required to provide detailed information regarding their financial holdings, consultancies, and research grants or contracts. Disclosure of this information is required for HRSA ethics officials to determine whether there is a potential conflict of interest between the SGE's public duties as a member of NACNEP and their private interests, including an appearance of a loss of impartiality as defined by federal laws and regulations, and to identify any required remedial action needed to address the potential conflict.
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
HRSA is publishing this notice of petitions received under the National Vaccine Injury Compensation Program (the Program), as required by the Public Health Service (PHS) Act, as amended. While the Secretary of HHS is named as the respondent in all proceedings brought by the filing of petitions for compensation under the Program, the United States Court of Federal Claims is charged by statute with responsibility for considering and acting upon the petitions.
For information about requirements for filing petitions, and the Program in general, contact Lisa L. Reyes, Clerk of Court, United States Court of Federal Claims, 717 Madison Place NW, Washington, DC 20005, (202) 357-6400. For information on HRSA's role in the Program, contact the Director, National Vaccine Injury Compensation Program, 5600 Fishers Lane, Room 08W-25A, Rockville, Maryland 20857; (301) 443-6593, or visit our website at:
The Program provides a system of no-fault compensation for certain individuals who have been injured by specified childhood vaccines. Subtitle 2 of Title XXI of the PHS Act, 42 U.S.C. 300aa-10
A petition may be filed with respect to injuries, disabilities, illnesses, conditions, and deaths resulting from vaccines described in the Vaccine Injury Table (the Table) set forth at 42 CFR 100.3. This Table lists for each covered childhood vaccine the conditions that may lead to compensation and, for each condition, the time period for occurrence of the first symptom or manifestation of onset or of significant aggravation after vaccine administration. Compensation may also be awarded for conditions not listed in the Table and for conditions that are manifested outside the time periods specified in the Table, but only if the petitioner shows that the condition was caused by one of the listed vaccines.
Section 2112(b)(2) of the PHS Act, 42 U.S.C. 300aa-12(b)(2), requires that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 2111 the Secretary shall publish notice of such petition in the
Section 2112(b)(2) also provides that the special master “shall afford all interested persons an opportunity to submit relevant, written information” relating to the following:
1. The existence of evidence “that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition,” and
2. Any allegation in a petition that the petitioner either:
a. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Vaccine Injury Table but which was caused by” one of the vaccines referred to in the Table, or
b. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table the first symptom or manifestation of the onset or significant aggravation of which did not occur within the time period set forth in the Table but which was caused by a vaccine” referred to in the Table.
In accordance with section 2112(b)(2), all interested persons may submit written information relevant to the issues described above in the case of the petitions listed below. Any person choosing to do so should file an original and three (3) copies of the information with the Clerk of the United States Court of Federal Claims at the address listed above (under the heading “For Further Information Contact”), with a copy to HRSA addressed to Director, Division of Injury Compensation Programs, Health Systems Bureau, 5600 Fishers Lane, 08W-25A, Rockville, Maryland 20857. The Court's caption (Petitioner's Name v. Secretary of HHS) and the docket number assigned to the petition should be used as the caption for the written submission. Chapter 35 of title 44, United States Code, related to paperwork reduction, does not apply to information required for purposes of carrying out the Program.
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.
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.
Advisory Council on Historic Preservation.
Notice of performance review board.
Appointment of individuals to serve as members of the Performance Review Board.
These appointments are applicable on January 22, 2024.
Javier E. Marqués, General Counsel, Advisory Council on Historic Preservation,
The Chair of the Advisory Council on Historic Preservation (ACHP) has appointed the following individuals to serve on the ACHP's Performance Review Board (PRB):
Fish and Wildlife Service, Interior.
Notice of initiation of reviews; request for information.
We, the U.S. Fish and Wildlife Service, are conducting 5-year status reviews under the Endangered Species Act, of 22 animal and plant species. A 5-year status review is based on the best scientific and commercial data available at the time of the review; therefore, we are requesting submission of any such information that has become available since the last reviews for the species.
To ensure consideration, we are requesting submission of new information no later than February 26, 2024. However, we will continue to accept new information about any listed species at any time.
For details on how to request or submit information, see Request for Information and How Do I Ask Questions or Provide Information? in the
For information on a particular species, contact the appropriate person or office listed in the table in the
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.
Under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
A 5-year status review considers all new information available at the time of the review. In conducting these reviews, we consider the best scientific and commercial data that have become available since the listing determination or most recent status review, such as:
(A) Species biology, including but not limited to population trends, distribution, abundance, demographics, and genetics;
(B) Habitat conditions, including but not limited to amount, distribution, and suitability;
(C) Conservation measures that have been implemented that benefit the species;
(D) Threat status and trends in relation to the five listing factors (as defined in section 4(a)(1) of the ESA); and
(E) Other new information, data, or corrections, including but not limited to taxonomic or nomenclatural changes, identification of erroneous information contained in the List, and improved analytical methods.
Any new information will be considered during the 5-year status review and will also be useful in evaluating the ongoing recovery programs for the species.
The species in the following table are under active 5-year status review.
To ensure that a 5-year status review is complete and based on the best available scientific and commercial information, we request new information from all sources. See What Information Do We Consider in Our Review? for specific criteria. If you submit information, please support it with documentation such as maps, bibliographic references, methods used to gather and analyze the data, and/or copies of any pertinent publications, reports, or letters by knowledgeable sources.
If you wish to provide information for any species listed above, please submit your comments and materials to the appropriate contact in the table above. You may also direct questions to those contacts (also see
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.
A list of all completed and currently active 5-year status reviews can be found at
This document is published under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service (Service), invite the public to comment on permit applications regarding foreign bird species covered under the Wild Bird
We must receive comments by February 26, 2024.
•
•
For more information, see Public Comment Procedures under
Timothy MacDonald, by phone at 703-358-2185 or via email at
We invite the public and local, State, Tribal, and Federal agencies to comment on these applications. Before issuing any of the requested permits, we will take into consideration any information that we receive during the public comment period.
You may submit your comments and materials by one of the methods in
When submitting comments, please specify the name of the applicant and the permit number at the beginning of your comment. Provide sufficient information to allow us to authenticate any scientific or commercial data you include. The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) those that include citations to, and analyses of, the applicable laws and regulations.
You may view and comment on others' public comments at
If you submit a comment at
To help us carry out our conservation responsibilities for affected species, and in consideration of section 112(4) of the Wild Bird Conservation Act of 1992 (WBCA; 16 U.S.C. 4901-4916), we invite public comments on permit applications before final action is taken. With some exceptions, the WBCA prohibits certain activities with listed species unless Federal authorization is issued that allows such activities. Service regulations regarding permits for any activity otherwise prohibited by the WBCA with respect to any wild birds are available in title 50 of the Code of Federal Regulations in part 15.
We invite comments on the following applications.
The applicant, along with member Dick Schroeder, and the Zoological Association of America as the oversight committee, wishes to establish a new Cooperative Breeding Program under 50 CFR 15.26 covering the species below. This notification covers activities to be conducted by the applicant over a 2-year period:
Stella's lorikeet (
The applicant, along with member Dallas World Aquarium, and the Zoological Association of America as the oversight committee, wishes to establish a new Cooperative Breeding Program under 50 CFR 15.26 covering the species below. This notification covers activities to be conducted by the applicant over a 2-year period:
Toco toucan (
The applicant wishes to establish a new Cooperative Breeding Program (CBP) under 50 CFR 15.26 covering the Taita falcon (
After the comment period closes, we will make decisions regarding permit issuance. If we issue permits to any of the applicants listed in this notice, we will publish a notice in the
We issue this notice under the authority of the implementing regulations and under the authority of the Wild Bird Conservation Act of 1992 (16 U.S.C. 4901-4916). This notice is provided pursuant to section 112(4) of the Wild Bird Conservation Act of 1992, 50 CFR 15.26(c).
Fish and Wildlife Service, Interior.
Notice of receipt of application; proposed incidental harassment authorization; draft environmental assessment; request for comments.
We, the U.S. Fish and Wildlife Service, in response to a request under the Marine Mammal Protection Act of 1972, as amended, from Trident Seafoods Corporation, propose to authorize nonlethal incidental take by harassment of small numbers of the Southwest Alaska stock of northern sea otters (
Comments on this proposed incidental harassment authorization and the accompanying draft environmental assessment must be received by February 26, 2024.
•
•
We will post all comments at
Charles Hamilton, by U.S. mail at the U.S. Fish and Wildlife Service, MS 341, 1011 East Tudor Road, Anchorage, AK 99503; by email at
Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972 (MMPA; 16 U.S.C. 1361
(1) is of small numbers of marine mammals of a species or stock;
(2) will have a negligible impact on such species or stocks; and
(3) will not have an unmitigable adverse impact on the availability of these species or stocks for taking for subsistence use by Alaska Natives.
If the requisite findings are made, we issue an authorization that sets forth the following, where applicable:
(a) permissible methods of taking;
(b) means of effecting the least practicable adverse impact on the species or stock and its habitat and the availability of the species or stock for subsistence uses; and
(c) requirements for monitoring and reporting of such taking by harassment, including, in certain circumstances, requirements for the independent peer review of proposed monitoring plans or other research proposals.
The term “take” means to harass, hunt, capture, or kill, or to attempt to harass, hunt, capture, or kill any marine mammal. “Harassment” means any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (the MMPA defines this as “Level A harassment”), or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (the MMPA defines this as “Level B harassment”).
The terms “negligible impact” and “unmitigable adverse impact” are defined in 50 CFR 18.27 (
The term “small numbers” is also defined in 50 CFR 18.27. However, we do not rely on that definition here as it conflates “small numbers” with “negligible impacts.” We recognize “small numbers” and “negligible impacts” as two separate and distinct considerations when reviewing requests for incidental harassment authorizations (IHA) under the MMPA (see
The term “least practicable adverse impact” is not defined in the MMPA or its enacting regulations. For this IHA, we ensure the least practicable adverse impact by requiring mitigation measures that are effective in reducing the impact of project activities, but they are not so restrictive as to make project activities unduly burdensome or impossible to undertake and complete.
If the requisite findings are made, we shall issue an IHA, which may set forth the following, where applicable: (i) permissible methods of taking; (ii) other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for subsistence uses by coastal-dwelling Alaska Natives (if applicable); and (iii) requirements for monitoring and reporting take by harassment.
On May 25, 2023, Trident Seafoods Corporation (hereafter “Trident” or “the applicant”) submitted a request to the Service for authorization to take by Level B harassment a small number of northern sea otters (
The specified activity (hereafter “project”) will include installation and removal of piles for the construction of a ~46-by-23-meter (m) (~150-by-75-foot (ft)) dock at Trident's crew bunkhouse in Kodiak, Alaska (see figure below), between March 2024 and March 2025. Trident will remove sixty 41-centimeter (cm) (16-inch (in)) diameter steel piles, seventy-five 36-cm (14-in) steel piles, and 100 36-cm (14-in) timber piles, and will permanently install the following types of piles: twenty-six 41-cm (16-in) and fifty-two 61-cm (24-in) diameter steel piles. Twenty 61-cm (24-in) diameter steel piles will be temporarily installed. Dock components that will be installed out of water include bull rail, fenders, mooring cleat, pre-cast concrete dock surface, and mast lights. Pile-driving activities will occur over 55 nonconsecutive days for approximately 94 hours during the course of 1 year from the date of issuance of the IHA. If the IHA is issued after Trident's intended start date in March 2024, the schedule for conducting the specified activities may be adjusted accordingly. Pile installation will be done with a combination of vibratory and down-the-hole (DTH) drilling. Temporary and extant piles will be removed by the deadpull method; it is anticipated that up to 10 percent of piles may require vibratory removal. Materials and equipment will be transported via barges, and workers will be transported to and from the barge work platform via skiff.
Additional project details may be reviewed in the application materials available as described under
Sea otters may be distributed anywhere within the specified project area other than upland areas; however, they generally occur in shallow water near the shoreline. They are most commonly observed within the 40-m (131-ft) depth contour (USFWS 2023), although they can be found in areas with deeper water. Ocean depth is generally correlated with distance to shore, and sea otters typically remain within 1 to 2 kilometers (km) (0.62 to 1.24 miles (mi)) of shore (Riedman and Estes 1990). They tend to be found closer to shore during storms but venture farther out during good weather and calm seas (Lensink 1962; Kenyon 1969).
Sea otters are nonmigratory and generally do not disperse over long distances (Garshelis and Garshelis 1984), usually remaining within a few kilometers of their established feeding grounds (Kenyon 1981). Breeding males stay for all or part of the year in a breeding territory covering up to 1 km (0.62 mi) of coastline, while adult females maintain home ranges of approximately 8 to 16 km (5 to 10 mi), which may include one or more male territories. Juveniles move greater distances between resting and foraging areas (Lensink 1962; Kenyon 1969; Riedman and Estes 1990; Tinker and Estes 1996). Although sea otters generally remain local to an area, they are capable of long-distance travel. Sea otters in Alaska have shown daily movement distances greater than 3 km (1.9 mi) at speeds up to 5.5 km per hour (3.4 mi per hour) (Garshelis and Garshelis 1984).
The Southwest Alaska sea otter stock occurs from western Cook Inlet to Attu Island in the Aleutian chain (USFWS 2023). On August 9, 2005, the Southwest Alaska sea otter stock was listed as threatened under the Endangered Species Act (ESA) as a distinct population segment (DPS) (70 FR 46366). This stock is divided into five management units: Western Aleutians; Eastern Aleutians; South Alaska Peninsula; Bristol Bay; and Kodiak, Kamishak, and Alaska Peninsula (USFWS 2013, 2023). The specified geographic region occurs within the ranges of the Kodiak, Kamishak, and Alaska Peninsula management units.
The range of the Kodiak, Kamishak, and Alaska Peninsula management unit extends from Castle Cape to Western Cook Inlet on the southern side of the Alaska Peninsula and also encompasses Kodiak Island (USFWS 2020). The specified geographic region is within
We characterized “noise” as sound released into the environment from human activities that exceeds ambient levels or interferes with normal sound production or reception by sea otters. The terms “acoustic disturbance” or “acoustic harassment” are disturbances or harassment events resulting from noise exposure. Potential effects of noise exposure are likely to depend on the distance of the sea otter from the sound source, the level and intensity of sound the sea otter receives, background noise levels, noise frequency, noise duration, and whether the noise is pulsed or continuous. The actual noise level perceived by individual sea otters will also depend on whether the sea otter is above or below water and atmospheric and environmental conditions. Temporary disturbance of sea otters or localized displacement reactions are the most likely effects to occur from noise exposure.
Pile driving and marine construction activities will fall within the hearing range of sea otters. Controlled sound exposure trials on southern sea otters (
Exposure to high levels of sound may cause changes in behavior, masking of communications, temporary or permanent changes in hearing sensitivity, discomfort, and injury to marine mammals. Unlike other marine mammals, sea otters do not rely on sound to orient themselves, locate prey, or communicate under water; therefore, masking of communications by anthropogenic sound is less of a concern than for other marine mammals. However, sea otters, especially mothers and pups, do use sound for communication in air (McShane et al. 1995), and sea otters may monitor underwater sound to avoid predators (Davis et al. 1987).
Noise exposure criteria for identifying underwater noise levels capable of causing Level A harassment to marine mammal species, including sea otters, have been established using the same methods as those used by the National Marine Fisheries Service (NMFS) (Southall et al. 2019). These criteria are based on estimated levels of sound exposure capable of causing a permanent shift in sensitivity of hearing (
Sound exposure thresholds incorporate two metrics of exposure: the peak level of instantaneous exposure likely to cause PTS and the cumulative sound exposure level (SEL
Thresholds based on TTS have been used as a proxy for Level B harassment (
The NMFS (2018) criteria do not identify thresholds for avoidance of Level B harassment. For pinnipeds (seals and sea lions), NMFS has adopted a 160-dB threshold for Level B harassment from exposure to impulsive noise and a 120-dB threshold for continuous noise (NMFS 1998, HESS 1999, NMFS 2018). These thresholds were developed from observations of mysticete (baleen) whales responding to airgun operations (
We have evaluated these thresholds and determined that the Level B threshold of 120 dB for non-impulsive noise is not applicable to sea otters. The 120-dB threshold is based on studies in which gray whales (
Based on the lack of sea otter disturbance response or any other reaction to the playback studies from the 1980s, as well as the absence of a clear pattern of disturbance or avoidance behaviors attributable to underwater sound levels up to about 160 dB resulting from low-frequency broadband noise, we assume 120 dB is not an appropriate behavioral response threshold for sea otters exposed to continuous underwater noise.
Based on the best available scientific information about sea otters, and closely related marine mammals when sea otter data are limited, the Service has set 160 dB of received underwater sound as a threshold for Level B harassment by disturbance for sea otters for this proposed IHA. Exposure to unmitigated in-water noise levels between 125 Hz and 38 kHz that are greater than 160 dB—for both impulsive and non-impulsive sound sources—will be considered by the Service as Level B harassment. Thresholds for Level A harassment (which entails the potential for injury) will be 232 dB peak or 203 dB SEL
The NMFS (2018) guidance neither addresses thresholds for preventing injury or disturbance from airborne noise, nor provides thresholds for avoidance of Level B harassment. Southall et al. (2007) suggested thresholds for PTS and TTS for sea lions exposed to nonpulsed airborne noise of 172.5 and 159 dB re (20 μPa)
Sea otters may be more resistant to the effects of sound disturbance and human activities than other marine mammals. For example, observers have noted no changes from southern sea otters in regard to their presence, density, or behavior in response to underwater sounds from industrial noise recordings at 110 dB and a frequency range of 50 Hz to 20 kHz and airguns, even at the closest distance of 0.5 nautical miles (<1 km or 0.6 mi) (Riedman 1983). Southern sea otters did not respond noticeably to noise from a single 1,638 cubic centimeters (cm
Northern sea otters were observed to exhibit a limited response to a variety of airborne and underwater sounds, including a warble tone, sea otter pup calls, calls from killer whales (
Noise exposure may be influenced by the amount of time sea otters spend at the water's surface. Noise at the water's surface can be attenuated by turbulence from wind and waves more quickly compared to deeper water, reducing potential noise exposure (Greene and Richardson 1988, Richardson et al. 1995). Additionally, turbulence at the water's surface limits the transference of sound from water to air. A sea otter with its head above water will be exposed to only a small fraction of the sound energy traveling through the water beneath it. The average amount of time that sea otters spend above the water each day while resting and grooming varies between males and females and across seasons (Esslinger et al. 2014, Zellmer et al. 2021). For example, female sea otters foraged for an average of 8.78 hours per day compared to male sea otters, which foraged for an average of 7.85 hours per day during the summer months (Esslinger et al. 2014). Male and female sea otters spend an average of 63 to 67 percent of their day at the surface resting and grooming during the summer months (Esslinger et al. 2014). Few studies have evaluated
Sea otter sensitivity to industrial activities may be influenced by the overall level of human activity within the sea otter population's range. In locations that lack frequent human activity, sea otters appear to have a lower threshold for disturbance. Sea otters in Alaska exhibited escape behaviors in response to the presence and approach of vessels (Udevitz et al. 1995). Behaviors included diving or actively swimming away from a vessel, entering the water from haulouts, and disbanding groups with sea otters swimming in multiple different directions (Udevitz et al. 1995). Sea otters in Alaska were also observed to avoid areas with heavy boat traffic in the summer and return to these areas during seasons with less vessel traffic (Garshelis and Garshelis 1984). In Cook Inlet, sea otters drifting on a tide trajectory that would have taken them within 500 m (0.3 mi) of an active offshore drilling rig were observed to swim in order to avoid a close approach of the drilling rig despite near-ambient noise levels (BlueCrest 2013).
Individual sea otters in Near Island Channel will likely show a range of responses to noise from pile-driving activities. Some sea otters will likely dive, show startle responses, change direction of travel, or prematurely surface. Sea otters reacting to pile-driving activities may divert time and attention from biologically important behaviors, such as feeding and nursing pups. Sea otter responses to disturbance can result in energetic costs, which increases the amount of prey required by sea otters (Barrett 2019). This increased prey consumption may impact sea otter prey availability and cause sea otters to spend more time foraging and less time resting (Barrett 2019). Some sea otters may abandon the project area and return when the disturbance has ceased. Based on the observed movement patterns of sea otters (
The reactions of wildlife to disturbance can range from short-term behavioral changes to long-term impacts that affect survival and reproduction. When disturbed by noise, animals may respond behaviorally (
These examples illustrate direct effects on survival and reproductive success, but disturbances can also have indirect effects. Response to noise disturbance is considered a nonlethal stimulus that is similar to an antipredator response (Frid and Dill 2002). Sea otters are susceptible to predation, particularly from killer whales and eagles, and have a well-developed antipredator response to perceived threats. For example, the presence of a harbor seal (
Although an increase in vigilance or a flight response is nonlethal, a tradeoff occurs between risk avoidance and energy conservation. An animal's reactions to noise disturbance may cause stress and direct an animal's energy away from fitness-enhancing activities such as feeding and mating (Frid and Dill 2002, Goudie and Jones 2004). For example, southern sea otters in areas with heavy recreational boat traffic demonstrated changes in behavioral time budgeting, showing decreased time resting and changes in haulout patterns and distribution (Benham 2006, Maldini et al. 2012). Chronic stress can also lead to weakened reflexes, lowered learning responses (Welch and Welch 1970, van Polanen Petel et al. 2006), compromised immune function, decreased body weight, and abnormal thyroid function (Selye 1979).
Changes in behavior resulting from anthropogenic disturbance can include increased agonistic interactions between individuals or temporary or permanent abandonment of an area (Barton et al. 1998). Additionally, the extent of previous exposure to humans (Holcomb et al. 2009), the type of disturbance (Andersen et al. 2012), and the age or sex of the individuals (Shaughnessy et al. 2008, Holcomb et al. 2009) may influence the type and extent of response in individual sea otters.
Vessel collisions with marine mammals can result in death or serious injury. Wounds resulting from vessel strike may include massive trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton and Kraus 2001). An animal may be harmed by a vessel when the vessel runs over the animal at the surface, the animal hits the bottom of a vessel while the animal is surfacing, or the animal is cut by a vessel's propeller.
Vessel strike has been documented as a cause of death across all three stocks of northern sea otters in Alaska. Since 2002, the Service has conducted 1,433 sea otter necropsies to determine cause of death, disease incidence, and the general health status of sea otters in Alaska. Vessel strike or blunt trauma was identified as a definitive or presumptive cause of death in 65 cases (4 percent) (USFWS 2020). In most of these cases, trauma was determined to be the ultimate cause of death; however, there was a contributing factor, such as disease or biotoxin exposure, which incapacitated the sea otter and made it more vulnerable to vessel strike (USFWS 2023).
Vessel speed influences the likelihood of vessel strikes involving sea otters. The probability of death or serious injury to a marine mammal increases as
Sea otters exhibit behavioral flexibility in response to vessels, and their responses may be influenced by the intensity and duration of the vessel's activity. As noted above, sea otter populations in Alaska were observed to avoid areas with heavy vessel traffic but return to those same areas during seasons with less vessel traffic (Garshelis and Garshelis 1984). Sea otters have also shown signs of disturbance or escape behaviors in response to the presence and approach of survey vessels, including sea otters diving and/or actively swimming away from a vessel, sea otters on haulouts entering the water, and groups of sea otters disbanding and swimming in multiple different directions (Udevitz et al. 1995).
Additionally, sea otter responses to vessels may be influenced by the sea otter's previous experience with vessels. Groups of southern sea otters in two locations in California showed markedly different responses to kayakers approaching to within specific distances, suggesting a different level of tolerance between the groups (Gunvalson 2011). Benham (2006) found evidence that the sea otters exposed to high levels of recreational activity may have become more tolerant than individuals in less-disturbed areas. Sea otters off the California coast showed only mild interest in vessels passing within hundreds of meters and appeared to have habituated to vessel traffic (Riedman 1983, Curland 1997). These findings indicate that sea otters may adjust their responses to vessel activities depending on the level of activity. Vessel activity during the project includes the transit of four barges for materials and construction, all of which will remain onsite, mostly stationary, to support the work; additionally, four skiffs will be used during the project for transporting workers short distances to the crane barges. Vessels will not be used extensively or over a long duration during the planned work; therefore, we do not anticipate that sea otters will experience changes in behavior indicative of tolerance or habituation.
Physical and biological features of habitat essential to the conservation of sea otters include the benthic invertebrates that sea otters eat and the shallow rocky areas and kelp beds that provide cover from predators. Sea otter habitat in the project area includes coastal areas within the 40-m (131-ft) depth contour where high densities of sea otters have been detected.
Industrial activities, such as pile driving, may generate in-water noise at levels that can temporarily displace sea otters from important habitat and impact sea otter prey species. The primary prey species for sea otters are sea urchins (
Several studies have addressed the effects of noise on invertebrates (Tidau and Briffa 2016, Carroll et al. 2017). Behavioral changes, such as an increase in lobster (
While these studies provide evidence of deleterious effects to invertebrates as a result of increased sound levels, Carroll et al. (2017) caution that there is a wide disparity between results obtained in field and laboratory settings. In experimental settings, changes were observed only when animals were housed in enclosed tanks, and many were exposed to prolonged bouts of continuous, pure tones. We would not expect similar results in open marine conditions. It is unlikely that noises generated by project activities will have any lasting effect on sea otter prey given the short-term duration of sounds produced by each component of the planned work.
Noise-generating activities that interact with the seabed can produce vibrations, resulting in the disturbance of sediment and increased turbidity in the water. Although turbidity is likely to have little impact on sea otters and prey species (Todd et al. 2015), there may be some impacts from vibrations and increased sedimentation. For example, mussels (
The planned specified activities will occur near marine subsistence harvest areas used by Alaska Native Peoples from Kodiak and the surrounding areas. Subsistence harvest of sea otters around Kodiak Island takes place primarily in Ouzinkie, Kodiak, and Port Lions with totals of 422, 192, and 130 sea otters taken, respectively, from 2017 through 2021.
The planned project would occur within the Kodiak city limits, where firearm use is prohibited. The area potentially affected by the planned project does not significantly overlap with current subsistence harvest areas. Construction activities will not preclude access to hunting areas or interfere in any way with individuals wishing to hunt. Despite no conflict with subsistence use being anticipated, the Service will conduct outreach with potentially affected communities to see whether there are any questions, concerns, or potential conflicts regarding subsistence use in those areas. If any conflicts are identified in the future, Trident will develop a plan of cooperation specifying the steps necessary to minimize any effects the project may have on subsistence harvest.
Below we provide definitions of three potential types of take of sea otters. The Service does not anticipate and is not authorizing lethal take as a part of this proposed IHA; however, the definitions of these take types are provided for context and background:
The Service has identified the following sea otter behaviors as indicative of possible Level B harassment:
• Swimming away at a fast pace on belly (
• Repeatedly raising the head vertically above the water to get a better view (
• In the case of a pup, repeatedly spyhopping while hiding behind and holding onto its mother's head;
• Abandoning prey or feeding area;
• Ceasing to nurse and/or rest (applies to dependent pups);
• Ceasing to rest (applies to independent animals);
• Ceasing to use movement corridors;
• Ceasing mating behaviors;
• Shifting/jostling/agitation in a raft so that the raft disperses;
• Sudden diving of an entire raft; or
• Flushing animals off a haulout.
This list is not meant to encompass all possible behaviors; other behavioral responses may equate to take by Level B harassment. Relatively minor changes in behavior such as increased vigilance or a short-term change in direction of travel are not likely to disrupt biologically important behavioral patterns, and the Service does not view such minor changes in behavior as indicative of a take by Level B harassment.
We assumed all animals exposed to underwater sound levels that meet the acoustic exposure criteria defined above in
We determined the number of otters expected to be present in Near Island Channel using sightings data collected during work conducted at the Kodiak Ferry terminal between November 2015 and June 2016 (ABR 2016). Sea otters were generally observed in singles or small groups with total daily counts of fewer than ~40 animals. However, there were several days on which rafts of 50 to 200 sea otters were observed with total daily counts of up to 459 animals. Sightings of large rafts and high daily totals coincided with days on which the observers noted higher sea states and it is likely that sea otters came from nearby exposed coastline to seek shelter Near Island Channel during storm events.
The project can be divided into three major components: DTH drilling, pile driving using a vibratory driver, and vessel use to support construction. Each of these components will generate a different type of in-water noise. Vibratory pile driving and the use of vessels will produce non-impulsive or continuous noise and DTH drilling is considered to produce both impulsive and continuous noise (NMFS 2020). A summary of the sizes and types of piles, installation and removal methods, and time to install and remove piles is shown in table 2.
The level of sound anticipated from each project component was established using recorded data from several sources listed in table 3. We used the NMFS Technical Guidance and User Spreadsheet (NMFS 2018, 2020) to determine the distance at which sound levels would attenuate to Level A harassment thresholds. Empirical data from the proxy projects were used to determine the distance at which sound levels would attenuate to Level B harassment thresholds (table 1). The weighting factor adjustment included in the NMFS user spreadsheet accounts for sounds created in portions of an organism's hearing range where they have less sensitivity. We used the weighting factor adjustment for otariid pinnipeds (eared seals) as they are the closest available physiological and anatomical proxy for sea otters. The spreadsheet also incorporates a transmission loss coefficient, which accounts for the reduction in sound level outward from a sound source. We used the NMFS-recommended transmission loss coefficient of 15 for coastal pile-driving activities to indicate practical spread (NMFS 2020).
We calculated the harassment zones for DTH drilling with input from NMFS. The sound pressure levels produced by DTH drilling were provided by NMFS in 2022 via correspondence with Solstice Alaska Consulting, who created the application for this IHA on behalf of Trident. We then used the NMFS Technical Guidance and User Spreadsheet (NMFS 2018, 2020) to determine the distance at which these sounds would attenuate to Level A harassment thresholds. To estimate the distances at which sounds would attenuate to Level B harassment thresholds, we used the NMFS-recommended transmission loss coefficient of 15 for coastal pile-driving activities in a practical spreading loss model (NMFS 2020) to determine the
Sound levels for all sources are unweighted and given in dB re 1 μPa. Non-impulsive sounds are in the form of mean maximum root mean square (RMS) sound pressure level (SPL) as it is more conservative than cumulative sound exposure level (SEL) or peak SPL for these activities.
We used the ABR Environmental Research & Services 2016 data to derive a local density of sea otters in Near Island Channel on the days of highest presence and arrived at 710 animals per km
To estimate the number of sea otters anticipated in the waters surrounding Near Island Channel during the project,
We assumed that the different types of activities could occur either sequentially or concurrently and that the total number of days of work would equal the full 55-day work window. While it is possible that more than one type of activity will take place on some days, which would reduce the number of days of exposure within a year, we cannot know this information in advance. As such, the estimated number of days and, therefore, exposures over the duration of the project are the maximum possible for the planned work.
In order to minimize exposure of sea otters to sounds above Level A harassment thresholds, Trident will implement shutdown zones (appendix C in Solstice 2023) ranging from 10 to 15 m (33 to 49 ft), based on the pile size and type of pile driving or marine construction activity, where operations will cease should a sea otter enter or approach the specified zone. Because the shutdown radii are larger than the sound isopleths for Level A harassment, no Level A harassment is anticipated. Soft-start and zone clearance prior to startup will also limit the exposure of sea otters to sound levels that could cause PTS.
We estimate that 3,160 takes of 460 sea otters by Level B harassment may occur due to Trident's planned dock repair and construction activities. In order to conduct this analysis and estimate the potential amount of take by harassment, several critical assumptions were made.
Level B harassment is equated herein with behavioral responses that indicate harassment or disturbance. There is likely a portion of animals that respond in ways that indicate some level of disturbance but do not experience significant biological consequences.
We used the sea otter presence for the Near Island Channel area from surveys and analyses conducted by ABR, Inc. (2016). Methods and assumptions for these surveys can be found in the original publication. We assumed that the distribution of daily total counts of sea otters during Trident's work period would be similar to that observed during the Kodiak Ferry Terminal work.
We used sound source verification from recent pile-driving activities in a number of locations within and beyond Alaska to generate sound level estimates for construction activities. Environmental conditions in these locations, including water depth, substrate, and ambient sound levels are similar to those in the project location, but not identical. Further, estimation of ensonification zones were based on sound attenuation models using a practical spreading loss model. These factors may lead to actual sound values differing slightly from those estimated here.
We assumed that all piles will be installed and removed while submerged in water. Some piles will be located in the intertidal zone. Work performed at lower tidal heights would likely result in decreased transmission of sounds to the water column. However, as the timing of pile installation and removal was not known in advance, we accounted for the possibility that all work may occur at a tidal height that allows for full sound transmission.
Finally, the pile-driving activities described here will also create in-air noise. Because sea otters spend over half of their day with their heads above water (Esslinger et al. 2014), they will be exposed to an increase of in-air noise from construction equipment. However, we have calculated Level B harassment with the assumption that an individual may be harassed only one time per 24-hour period, and underwater sound levels will be more disturbing and extend farther than in-air noise. Thus, while sea otters may be disturbed by noise both in-air and underwater, we have relied on the more conservative underwater estimates.
The applicant plans to conduct pile driving and marine construction activities in Kodiak, Alaska, over the course of a year from the date of issuance of the IHA. Over the course of the project, we estimate 3,160 instances of take by Level B harassment of 460
The use of soft-start procedures, zone clearance prior to startup, and shutdown zones (appendix C in Solstice 2023) is anticipated to eliminate both the number of sea otters exposed to sounds above Level A harassment thresholds and the exposure time of any sea otters venturing into a Level A harassment zone. We therefore do not anticipate any losses of hearing sensitivity that might impact the health, reproduction, or survival of affected animals. We anticipate that PSOs will be able to reliably detect and prevent take by Level A harassment of sea otters beyond the largest sound isopleth for Level A harassment (15 m [45 ft]), therefore we do not anticipate that any sea otters will be exposed to sounds capable of causing PTS or Level A harassment.
Sea otters exposed to sound from the specified activities are likely to respond with temporary behavioral modification or displacement. The specified activities could temporarily interrupt the feeding, resting, and movement of sea otters. Because activities will occur during a limited amount of time and in a localized region, the impacts associated with the project are likewise temporary and localized. The anticipated effects are short-term behavioral reactions and displacement of sea otters near active operations.
Sea otters that encounter the specified activity may exert more energy than otherwise due to temporary cessation of feeding, increased vigilance, and retreating from the project area. We expect that affected sea otters will tolerate this exertion without measurable effects on health or reproduction. The anticipated takes will be due to short-term Level B harassment in the form of TTS, startling reactions, or temporary displacement. The mitigation measures incorporated into Trident's request will eliminate occurrences of Level A harassment to the extent where take by Level A harassment is not anticipated.
With the adoption of the mitigation measures incorporated in Trident's request and required by this proposed IHA, anticipated take was reduced. Those mitigation measures are further described below.
To assess whether the authorized incidental taking would be limited to “small numbers” of marine mammals, the Service uses a proportional approach that considers whether the estimated number of marine mammals to be subjected to incidental take is small relative to the population size of the species or stock. Here, predicted levels of take were determined based on the estimated density of sea otters in the project area and ensonification zones developed using empirical evidence from similar geographic areas.
We estimate Trident's specified activities in the specified geographic region will result in no more than 3,160 takes of 460 sea otters by Level B harassment during the 1-year period of this proposed IHA (see
We propose a finding that any incidental take by harassment resulting from the specified activities cannot be reasonably expected to, and is not reasonably likely to, adversely affect the sea otter through effects on annual rates of recruitment or survival and will, therefore, have no more than a negligible impact on the Southwest Alaska stock of northern sea otters. In making this finding, we considered the best available scientific information, including the biological and behavioral characteristics of the species, the most recent information on species distribution and abundance within the area of the specified activities, the current and expected future status of the stock (including existing and foreseeable human and natural stressors), the potential sources of disturbance caused by the project, and the potential responses of marine mammals to this disturbance. In addition, we reviewed applicant-provided materials, information in our files and datasets, published reference materials, and species experts.
Sea otters are likely to respond to planned activities with temporary behavioral modification or temporary displacement. These reactions are not anticipated to have consequences for the long-term health, reproduction, or survival of affected animals. Most animals will respond to disturbance by moving away from the source, which may cause temporary interruption of foraging, resting, or other natural behaviors. Affected animals are expected to resume normal behaviors soon after exposure with no lasting consequences. Each sea otter is estimated to be exposed to construction noise for between 4 and 55 days, resulting in repeated exposures. However, injuries (
The total number of animals affected, and severity of impact is not sufficient to change the current population dynamics at the stock scale. Although the specified activities may result in approximately 3,160 incidental takes of 460 sea otters from the Southwest Alaska stock, we do not expect this level of harassment to affect annual rates of recruitment or survival or result in adverse effects on the stock.
Our proposed finding of negligible impact applies to incidental take associated with the specified activities as mitigated by the avoidance and minimization measures identified in Trident's mitigation and monitoring plan. These mitigation measures are designed to minimize interactions with and impacts to sea otters. These measures, along with the monitoring and reporting procedures, are required for the validity of our finding and are a necessary component of the proposed IHA. For these reasons, we propose a finding that the specified project will have a negligible impact on the Southwest Alaska stock of northern sea otters.
We find that the mitigation measures required by this proposed IHA will affect the least practicable adverse impacts on the stock from any incidental take likely to occur in association with the specified activities. In making this finding, we considered the biological characteristics of sea otters, the nature of the specified activities, the potential effects of the activities on sea otters, the documented impacts of similar activities on sea otters, and alternative mitigation measures.
In evaluating what mitigation measures are appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses, we considered the manner and degree to which the successful implementation of the measures are expected to achieve this goal. We considered the nature of the potential adverse impact being mitigated (likelihood, scope, range), the likelihood that the measures will be effective if implemented, and the likelihood of effective implementation. We also considered the practicability of the measures for applicant implementation (
To reduce the potential for disturbance from acoustic stimuli associated with the activities, Trident will implement mitigation measures, including the following:
• Using the smallest diameter piles practicable while minimizing the overall number of piles;
• Using a project design that does not include dredging or blasting;
• Using pile caps made of high-density polyethylene or ultra-high-molecular-weight polyethylene softening materials during pile driving;
• Foregoing the use of an impact hammer;
• Employing a deep bubble curtain during all DTH drilling to reduce noise impacts;
• Development of a marine mammal monitoring and mitigation plan;
• Establishment of shutdown and monitoring zones;
• Visual mitigation monitoring by designated PSOs;
• Site clearance before startup;
• Soft-start procedures; and
• Shutdown procedures.
The Service has not identified any additional (
The project will not preclude access to harvest areas or interfere with the availability of sea otters for harvest. Additionally, the bunkhouse dock and associated facilities are located within the City of Kodiak, where firearm use is prohibited. We therefore propose a finding that Trident's anticipated harassment will not have an unmitigable adverse impact on the availability of any stock of northern sea otters for taking for subsistence uses. In making this finding, we considered the timing and location of the planned activities and the timing and location of subsistence harvest activities in the project area.
The purposes of the monitoring requirements are to document and provide data for assessing the effects of specified activities on sea otters; to ensure that take is consistent with that anticipated in the small numbers, negligible impact, and subsistence use analyses; and to detect any unanticipated effects on the species. Monitoring plans include steps to document when and how sea otters are encountered and their numbers and behaviors during these encounters. This information allows the Service to measure encounter rates and trends and to estimate numbers of animals potentially affected. To the extent possible, monitors will record group size, age, sex, reaction, duration of interaction, and closest approach to the project activity.
As proposed, monitoring activities will be summarized and reported in formal reports. Trident must submit monthly reports for all months during which noise-generating work takes place as well as a final monitoring report that must be submitted no later than 90 days after the expiration of the IHA. We will require an approved plan for monitoring and reporting the effects of pile driving and marine construction activities on sea otters prior to issuance of an IHA. We will require approval of the monitoring results for continued operation under the IHA.
We find that these proposed monitoring and reporting requirements to evaluate the potential impacts of planned activities will ensure that the effects of the activities remain consistent with the rest of the findings.
We have prepared a draft environmental assessment in accordance with the NEPA (42 U.S.C. 4321
Under the ESA (16 U.S.C. 1536(a)(2)), all Federal agencies are required to ensure the actions they authorize are not likely to jeopardize the continued existence of any threatened or endangered species or result in destruction or adverse modification of critical habitat. Because the Southwest Alaska stock is listed as threatened under the ESA, prior to finalizing the proposed IHA, if warranted, the Service will complete intra-Service consultation under section 7 of the ESA on our proposed issuance of this IHA. These evaluations and findings will be made available on the Service's website at
It is our responsibility to communicate and work directly on a Government-to-Government basis with federally recognized Alaska Native Tribes in developing programs for healthy ecosystems. We seek their full and meaningful participation in evaluating and addressing conservation concerns for protected species. It is our goal to remain sensitive to Alaska Native culture, and to make information available to Alaska Native people. Our efforts are guided by the following policies and directives:
(1) The Native American Policy of the Service (January 20, 2016);
(2) The Alaska Native Relations Policy (currently in draft form);
(3) Executive Order 13175 (January 9, 2000);
(4) Department of the Interior Secretary's Orders 3206 (June 5, 1997), 3225 (January 19, 2001), 3317 (December 1, 2011), and 3342 (October 21, 2016);
(5) The Alaska Government-to-Government Policy (a departmental memorandum issued January 18, 2001); and
(6) The Department of the Interior's policies on consultation with Alaska Native Tribes and Organizations.
We have evaluated possible effects of the specified activities on federally recognized Alaska Native Tribes and Organizations. The Service has determined that, due to this project's locations and activities, the Tribal Organizations and communities near Kodiak, Alaska, as well as relevant Alaska Native Claims Settlement Act corporations, will not be impacted by this project. However, we will be reaching out to them to inform them of the availability of this proposed IHA and offer them the opportunity to consult.
We invite continued discussion, either about the project and its impacts or about our coordination and information exchange throughout the IHA process.
We propose to authorize the nonlethal incidental take by Level B harassment of 3,160 takes of 460 sea otters from the Southwest Alaska stock. Authorized take may be caused by pile driving and marine construction activities conducted by Trident Seafoods Corporation (Trident) in Kodiak, Alaska, over the course of a year from the date of issuance of the IHA. We do not anticipate or authorize any take by Level A harassment or lethal take to sea otters resulting from these activities.
(1) Activities must be conducted in the manner described in the October 9, 2023, revised request from Trident for an IHA and in accordance with all applicable conditions and mitigation measures. The taking of sea otters whenever the required conditions, mitigation, monitoring, and reporting measures are not fully implemented as required by the IHA is prohibited. Failure to follow the measures specified both in the revised request and within this proposed authorization may result in the modification, suspension, or revocation of the IHA.
(2) If project activities cause unauthorized take (
(i) Cease its activities immediately (or reduce activities to the minimum level necessary to maintain safety);
(ii) Report the details of the incident to the Service within 48 hours; and
(iii) Suspend further activities until the Service has reviewed the circumstances and determined whether additional mitigation measures are necessary to avoid further unauthorized taking.
(3) All operations managers, vehicle operators, and machine operators must receive a copy of this IHA and maintain access to it for reference at all times during project work. These personnel must understand, be fully aware of, and be capable of implementing the conditions of the IHA at all times during project work.
(4) This IHA will apply to activities associated with the specified project as described in this document and in Trident's revised request. Changes to the specified project without prior authorization may invalidate the IHA.
(5) Trident's revised request is approved and fully incorporated into this IHA unless exceptions are specifically noted herein. The request includes:
(i) Trident's original request for an IHA, dated May 25, 2023;
(ii) Revised applications, dated September 5 and October 9, 2023;
(iii) Marine Mammal Mitigation and Monitoring Plan;
(iv) Bubble curtain schematics; and
(v) Pile coordinates.
(6) Operators will allow Service personnel or the Service's designated representative to visit project worksites to monitor for impacts to sea otters and subsistence uses of sea otters at any time throughout project activities so long as it is safe to do so. “Operators” are all personnel operating under Trident's authority, including all contractors and subcontractors.
(1) Construction activities must be conducted using equipment that generates the lowest practicable levels of underwater sound within the range of frequencies audible to sea otters.
(2) If the number of sea otters present in the area of Near Island Channel exceeds 450, or if the number of sea otters present in a Level B monitoring zone exceeds 25, or if the combination of sea state and a high number of sea otters in the area is so high as to preclude an accurate count, work will cease until PSOs can confirm that the number of sea otters in the area is less than above limits.
(3) During all pile-installation activities, regardless of predicted sound levels, a physical interaction shutdown zone of 10 m (33 ft) must be enforced. If a sea otter enters the shutdown zone, in-water activities must be delayed until either the animal has been visually observed outside the shutdown zone, or 15 minutes have elapsed since the last observation time without redetection of the animal. A shutdown zone of 15 m (49 ft) will be enforced for DTH drilling where the 160 dB sound isopleth exceeds the 10 m (33 ft) physical interaction shutdown zone.
(4) In-water activity must be conducted in daylight. If environmental conditions prevent visual detection of sea otters within the shutdown zone, in-water activities must be stopped until visibility is regained.
(5) All in-water work along the shoreline must be conducted during low tide when the site is dewatered to the maximum extent practicable.
Vessel operators must take every precaution to avoid harassment of sea otters when a vessel is operating near these animals. The applicant must carry out the following measures:
(1) Vessels must remain at least 500 m (0.3 mi) from rafts of sea otters unless safety is a factor. Vessels must reduce speed and maintain a distance of 100 m (328 ft) from all sea otters unless safety is a factor.
(2) Vessels must not be operated in such a way as to separate members of a group of sea otters from other members of the group and must avoid alongshore travel in shallow water (<20 m (66 ft)) whenever practicable.
(3) When weather conditions require, such as when visibility drops, vessels must adjust speed accordingly to avoid the likelihood of injury to sea otters.
(4) Vessel operators must be provided written guidance for avoiding collisions and minimizing disturbances to sea otters. Guidance will include measures identified in paragraphs (C)(12) through (15) of this section.
(1) Operators shall work with PSOs to apply mitigation measures and shall recognize the authority of PSOs up to and including stopping work, except where doing so poses a significant safety risk to personnel.
(2) Duties of the PSOs include watching for and identifying sea otters,
(3) A sufficient number of PSOs will be available to meet the following criteria: 100 percent monitoring of exclusion zones during all daytime periods of underwater noise-generating work; a maximum of 4 consecutive hours on watch per PSO; a maximum of approximately 12 hours on watch per day per PSO.
(4) All PSOs will complete a training course designed to familiarize individuals with monitoring and data collection procedures. A field crew leader with prior experience as a sea otter observer will supervise the PSO team. Initially, new or inexperienced PSOs will be paired with experienced PSOs so that the quality of marine mammal observations and data recording is kept consistent. Resumes for candidate PSOs will be made available for the Service to review.
(5) Observers will be provided with reticule binoculars (7×50 or better), big-eye binoculars or spotting scopes (30×), inclinometers, and range finders. Field guides, instructional handbooks, maps, and a contact list will also be made available.
(6) Observers will collect data using the following procedures:
(i) All data will be recorded onto a field form or database.
(ii) Global positioning system data, sea state, wind force, and weather will be collected at the beginning and end of a monitoring period, every hour in between, at the change of an observer, and upon sightings of sea otters.
(iii) Observation records of sea otters will include date; time; the observer's locations, heading, and speed (if moving); weather; visibility; number of animals; group size and composition (adults/juveniles); and the location of the animals (or distance and direction from the observer).
(iv) Observation records will also include initial behaviors of the sea otters, descriptions of project activities and underwater sound levels being generated, the position of sea otters relative to applicable monitoring and mitigation zones, any mitigation measures applied, and any apparent reactions to the project activities before and after mitigation.
(v) For all sea otters in or near a mitigation zone, observers will record the distance from the sound source to the sea otter upon initial observation, the duration of the encounter, and the distance at last observation in order to monitor cumulative sound exposures.
(vi) Observers will note any instances of animals lingering close to or traveling with vessels for prolonged periods of time.
(7) Monitoring of the shutdown zone must continue for 30 minutes following completion of pile installation.
Prior to conducting the work, Trident will take the following steps to reduce potential effects on subsistence harvest of sea otters:
(1) Avoid work in areas of known sea otter subsistence harvest;
(2) Discuss the planned activities with subsistence stakeholders including Southwest Alaska villages and traditional councils;
(3) Identify and work to resolve concerns of stakeholders regarding the project's effects on subsistence hunting of sea otters; and
(4) If any concerns remain, develop a POC in consultation with the Service and subsistence stakeholders to address these concerns.
(1) Trident must notify the Service at least 48 hours prior to commencement of activities.
(2) Monthly reports will be submitted to the Service's Marine Mammal Management office (MMM) for all months during which noise-generating work takes place. The monthly report will contain and summarize the following information: dates, times, weather, and sea conditions (including the Beaufort Scale sea state and wind force conditions) when sea otters were sighted; the number, location, distance from the sound source, and behavior of the sea otters; the associated project activities; and a description of the implementation and effectiveness of mitigation measures with a discussion of any specific behaviors the sea otters exhibited in response to mitigation.
(3) A final report will be submitted to the Service's MMM within 90 days after completion of work or expiration of the IHA. The report will include:
(i) A summary of monitoring efforts (hours of monitoring, activities monitored, number of PSOs, and, if requested by the Service, the daily monitoring logs).
(ii) A description of all project activities, along with any additional work yet to be done. Factors influencing visibility and detectability of marine mammals (
(iii) A description of the factors affecting the presence and distribution of sea otters (
(iv) A description of changes in sea otter behavior resulting from project activities and any specific behaviors of interest.
(v) A discussion of the mitigation measures implemented during project activities and their observed effectiveness for minimizing impacts to sea otters. Sea otter observation records will be provided to the Service in the form of electronic database or spreadsheet files.
(4) Injured, dead, or distressed sea otters that are not associated with project activities (
(5) All reports shall be submitted by email to
Trident must notify the Service upon project completion or end of the work season.
If you wish to comment on this proposed authorization, the associated draft environmental assessment, or both documents, you may submit your comments by either of the methods described in
Comments, including names and street addresses of respondents, will become part of the administrative record
Bureau of Indian Affairs, Interior.
Notice.
The Assistant Secretary—Indian Affairs made a final agency determination to acquire in trust 25.56 acres, more or less, of land consisting of eleven off-reservation parcels in Pima County, Arizona, (Site) for the Pascua Yaqui Tribe of Arizona, (Tribe) for gaming and other purposes.
This final determination was made on December 29, 2023.
Ms. Paula L. Hart, Director, Office of Indian Gaming, Mailstop 3543, 1849 C Street NW, Washington, DC 20240,
On the date listed in the
The Assistant Secretary—Indian Affairs, on behalf of the Secretary of the Interior, will immediately acquire title to the Site in the name of the United States of America in trust for the Tribe upon fulfillment of all Departmental requirements. The legal description for the Site is as follows:
A parcel of land located in the Northwest quarter of Section 2, Township 14 South, Range 13 East, Gila and Salt River Base and Meridian, Pima County, Arizona, more particularly described as follows:
COMMENCING at the North quarter corner of said Section 2, being a brass cap survey monument at the intersection of the centerline of Grant Road and the Westerly right-of-way of Fairview Avenue, each public roadways within the City of Tucson, Arizona;
THENCE along the centerline of Grant Road, North 89°05′59″ West, 90.07 feet to a point;
THENCE South 00°54′01″ West, 60.00 feet to the Northeast corner of Lot 13 of Grant Interstate Commons, a subdivision of record in Book 46 of Maps and Plats. Page 27, records of Pima County, Arizona, being the POINT OF BEGINNING of the herein described parcel;
THENCE along the Easterly boundary of Lot 13, as amended by Scrivener's Error recorded in Docket 10302. Page 146, South 00°13′42″ East, 138.47 feet to a point;
THENCE North 89°42′33″ East, 92.00 feet to a point on the Westerly right-of-way of Fairview Avenue; THENCE along said right-of-way, North 00°27′04″ West, 83.83 feet to the beginning of a curve tangent to the line;
THENCE Northerly, Northwesterly and Westerly 83.55 feet along the curve concave to the Southwest, having a radius of 54.00 feet and a central angle of 88°38′55″ to a point on the Southerly right-of-way of Grant Road;
THENCE along the Grant Road right-of-way, North 89°05′59″ West tangent to the curve 38.74 feet to the POINT OF BEGINNING of the herein described parcel.
A parcel of land located in the Northwest quarter of Section 2, Township 14 South, Range 13 East, Gila and Salt River Base and Meridian, Pima County, Arizona, more particularly described as follows:
COMMENCING at the North quarter corner of said Section 2, being a brass cap survey monument at the intersection of the centerline of Grant Road and the Westerly right-of-way of Fairview Avenue, each public roadway within the City of Tucson, Arizona;
THENCE along the centerline of Grant Road, North 89°05′59″ West, 90.07 feet to a point;
THENCE South 00°54′01″ West, 60.00 feet to the Northeast corner of Lot 13 of Grant Interstate Commons, a subdivision of record in Book 46 of Maps and Plats. Page 27, records of Pima County, Arizona;
THENCE along the Easterly boundary of Lot 13, as amended by Scrivener's Error recorded in Docket 10302. Page 146, South 00°13′42″ East, 138.47 feet to the POINT OF BEGINNING of the herein described parcel;
THENCE continuing South 00°13′42″ East, along the Easterly boundaries of Lots 13 and 12 of said subdivision, a distance of 259.48 feet to the Southeastern corner of Lot 12;
THENCE South 89°05′20″ East, 93.03 feet to a point on the Westerly right-of-way of Fairview Avenue;
THENCE along said right-of-way, North 00°27′04″ West, 261.44 feet to a point;
THENCE South 89°42′33″ West, 92.00 feet to the POINT OF BEGINNING of the herein described.
A portion of the Northwest Quarter of Section 2, Township 14 South, Range 13 East, Gila and Salt River Meridian, Pima County, Arizona, described as follows:
Beginning at a point in the East line of said Northwest Quarter of Section 2, which point is South 0 degrees 27 minutes 07 seconds East, along said East line, a distance of 678.02 feet from the North quarter corner of said Section 2, which point of beginning is identical with the point of beginning of Parcel No. 1 as described in Deed of Trust recorded in the Office of the County Recorder of Pima County, Arizona, in Docket 1655 at page 201;
Thence North 89 degrees 57 minutes 43 seconds West, along a portion of the North line of said Parcel No. 1 described in Docket 1655 at page 201, and its Westerly extension, a distance of 586.40 feet to a point in the Southerly extension of the West line of Parcel No. 2 as described in said Docket 1655 at page 201;
Thence South 0 degrees 29 minutes 32 seconds East, along said Southerly extension, a distance of 93.20 feet to a point in the center line (10 feet from east side) of that certain easement conveyed to the City of Tucson by instrument recorded in said office of the County Recorder in Docket 2005 at page 138;
Thence South 52 degrees 58 minutes 37 seconds West, along said center line,
Thence South 35 degrees 16 minutes 00 seconds East, along said right-of-way line, a distance of 810.00 feet to a point;
Thence North 54 degrees 44 minutes 00 seconds East, a distance of 477.72 feet to a point in said East line of the Northwest Quarter of Section 2, which point is 41.56 feet Southerly from the Northeast corner of the Southeast Quarter of said Northwest Quarter of Section 2;
Thence North 0 degrees 27 minutes 07 seconds West, along said East line of the Northwest Quarter of Section 2, a distance of 679.55 feet to the POINT OF BEGINNING.
EXCEPT that part thereof in the Southeast Quarter of the Northwest Quarter of said Section 2, lying Easterly of the Easterly line of said Parcel No. 1 described in Docket 1655 at page 201.
An easement for ingress and egress over a parcel of land, being 60 feet in width, situate in the Northwest Quarter of Section 2, Township 14 South, Range 13 East, Gila and Salt River Meridian, Pima County, Arizona, the West line of said parcel being described as follows:
Beginning at a point in the East line of said Northwest Quarter of Section 2, which point is South 0 degrees 02 minutes 07 seconds East, along said East line, a distance of 678.02 feet from the North quarter corner of said Section 2, which point of beginning is identical with the point of beginning of Parcel 1 as described in Deed of Trust recorded in Docket 1655 at page 201;
Thence North 89 degrees 57 minutes 43 seconds West along a portion of the North line of said Parcel 1, and its Westerly extension, a distance of 586.40 feet to a point in the Southerly extension of the West line of Parcel No 2 as described in said Deed of Trust;
Thence South 89 degrees 57 minutes 43 seconds East, a distance of 12 feet to the TRUE POINT OF BEGINNING of said West line;
Thence North 0 degrees 29 minutes 32 seconds West, to a point in the South line of West Grant Road as said road was established by Final Order of Condemnation recorded in the office of the County Recorder of Pima County, Arizona, in Docket 1984 at page 137.
An easement for a sign together with access, ingress and egress for erection and maintenance thereof, described as follows:
Beginning at a point in the East line of said Northwest Quarter of Section 2, Township 14 South, Range 13 East, Gila and Salt River Meridian, Pima County, Arizona, which point is South 0 degrees 27 minutes 07 seconds East, along said East line, a distance of 678.02 feet from the North Quarter corner of said Section 2, which point is identical with the point of beginning of Parcel 1 as described in Deed of Trust recorded in Docket 1655 at page 201;
Thence North 89 degrees 57 minutes 43 seconds West along a portion of the North line of said Parcel 1, and its Westerly extension, a distance of 586.40 feet to a point in the Southerly extension of the West line of Parcel No 2 as described in said Deed of Trust;
Thence North 0 degrees 29 minutes 32 seconds West, to a point in the South line of West Grant Road as said road was established by Final Order of Condemnation recorded in the office of the County Recorder of Pima County, Arizona, in Docket 1984 at page 137;
Said last mentioned point in the South line of West Grant Road being the TRUE POINT OF BEGINNING of the Parcel herein described;
Thence South 0 degrees 29 minutes 32 seconds East, a distance of 60 feet to a point;
Thence North 89 degrees 30 minutes 28 seconds East, a distance of 12 feet to a point;
Thence North 0 degrees 29 minutes 32 seconds West to a point on the South line of said West Grant Road;
Thence Westerly to the TRUE POINT OF BEGINNING.
Lot 11 of GRANT INTERSTATE COMMONS, according to the plat of record in the office of the County Recorder of Pima County, Arizona, recorded in Book 46 of Maps, page 27.
That portion of Fairview Avenue, as shown on the map or plat of Parque De Pascua, Lots 1 thru 5 and Tracts A, B, C and D, being a subdivision of Pima County, Arizona, in Book 33 of Maps and Plats at page 96 thereof, being described as follows:
Beginning at the Southeast corner of Lot 11 of Grant Interstate Commons, according to the plat of record in the office of the County Recorder of Pima County, Arizona, recorded in Book 46 of Maps, page 27 being a subdivision of Pima County, Arizona, according to the final plat thereof of record in said County Recorder's Office thereof, said corner being located in the West right of way line of said Fairview Avenue;
Thence North 0 degrees 27 minutes 04 seconds West, along the East line of Lot 11, being coincident with said West right of way line, a distance of 97.00 feet to a point; Thence North 89 degrees 32 minutes 56 seconds East, at right angles to said right of way line a distance of 1.00 feet to a point in a line which is parallel with and distance 1.00 feet Easterly of said West right of way line;
Thence South 0 degrees 27 minutes 04 seconds East, along said parallel line, a distance of 97.01 feet to its intersection with the Easterly prolongation of the South line of Lot 11;
Thence North 89 degrees 59 minutes 30 seconds West along said prolongation, a distance of 1.00 feet to the Southeast corner of Lot 11, being the Point of Beginning.
The East Half of Lot 12 and the East 23.59 feet of the West half of said Lot 12, EXCEPT any portion lying within the Northerly 24.00 feet of said Lot 12, all in GRANT INTERSTATE COMMONS, a subdivision recorded in Book 46 of Maps and Plats at Page 27, records of Pima County, Arizona, described as follows:
Commencing at the Northeast corner of said Lot 12 as revised by Scrivener's Error recorded in Docket 10302, Page 146, records of Pima County, Arizona;
Thence South 00 degrees 13 minutes 42 seconds East 24.00 feet upon the East line of said Lot 12 as revised by said Scrivener's Error, to a point on a line 24.00 feet Southerly of and parallel with the North line of said Lot 12, said point being the Point of Beginning;
Thence continue South 00 degrees 13 minutes 42 seconds East 191.66 feet upon said East line, as revised by said Scrivener's Error; Thence South 89 degrees 05 minutes 20 seconds East, 93.02 feet upon said East line;
Thence South 00 degrees 27 minutes 04 seconds East, 29.95 feet upon said East line, also being the East line of the Northwest quarter of Section 2, Township 14 South, Range 13 East, Gila and Salt River Base and Meridian, also being the West right of way line of Fairview Avenue, to the South line of said Lot 12;
Thence North 89 degrees 05 minutes 20 seconds West, 60.00 feet upon said South line to a point of curvature of a tangent curve concave to the North;
Thence Westerly upon said South line, upon the arc of said curve, to the right, having a radius of 150.00 feet and a central angle of 17 degrees 46 minutes 53 seconds for an arc distance of 46.55
Thence Westerly upon said South line, upon the arc of said curve to the left, having a radius of 150.00 feet and a central angle of 17 degrees 46 minutes 53 seconds for an arc distance of 46.55 feet to a Point of Tangency;
Thence North 89 degrees 05 minutes 20 seconds West, 169.22 feet upon said South line, to a line 227.32 feet West of and parallel with the Northerly portion of the East line of Lot 12 as shown on said Plat, not as revised by said Scrivener's Error;
Thence North 00 degrees 01 minutes 10 seconds West, 207.27 feet upon said parallel line, to said line 24.00 feet Southerly of and parallel with the North line of Lot 12;
Thence South 89 degrees 05 minutes 20 seconds East, 226.65 feet upon said parallel line to the Point of Beginning.
A Sewer easement over that portion of Lot 12 in GRANT INTERSTATE COMMONS, a subdivision recorded in Book 46 of Maps and Plats, at Page 27, records of Pima County, Arizona, described as follows:
Commencing at the Southwest corner of said Lot 12;
Thence South 89 degrees 05 minutes 20 seconds East 40.01 feet upon the South line of said Lot 12 to the East line of that 20' wide public sewer easement as shown on said Grant Interstate Commons being the Point of Beginning;
Thence North 00 degrees 27 minutes 04 seconds West 15.00 feet upon said East line to the Northeast corner of said Easement;
Thence North 89 degrees 05 minutes 20 seconds West 20.01 feet upon the North line of said easement to the Northwest corner of said Easement;
Thence North 00 degrees 27 minutes 04 seconds West 5.00 feet upon the Northerly prolongation of the West line of said Easement to a line 20.00 feet Northerly of and Parallel with said South line of Lot 12;
Thence South 89 degrees 05 minutes 20 seconds East 172.27 feet upon said parallel line to a line 227.32 feet Westerly of and parallel with the Northerly portion of the East line of said Lot 12;
Thence South 00 degrees 01 minutes 10 seconds East 20.00 feet upon said parallel line to said South line of Lot 12;
Thence North 89 degrees 05 minutes 20 seconds West 152.11 feet upon said South line to the Point of Beginning.
Lots 4 and 5, of GRANT INTERSTATE COMMONS, according to Book 46 of Maps, Page 27, records of Pima County, Arizona;
A NON-EXCLUSIVE easement as set forth in the Declaration of Covenants, Conditions, Easements and Restrictions for Grant Interstate Commons, for ingress and egress recorded January 7, 1988 in Docket 8197, page 495.
That portion of Lot 6 of GRANT INTERSTATE COMMONS, a subdivision of Pima County, Arizona, according to the map or plat thereof of record in the office of the County Recorder of Pima County, Arizona, in Book 46 of Maps and Plats at Page 27 thereof, described as follows:
A non-exclusive and perpetual easement and right of way over and across all driveways, roadways, and walkways for the purpose of vehicular and pedestrian ingress and egress under the terms, conditions and provisions of the Reciprocal Easement Agreement recorded October 2, 2000 in Docket 11395 at Page 1951, in the office of the Pima County Recorder.
Lot 6, of GRANT INTERSTATE COMMONS, according to Book 46 of Maps, Page 27, records of Pima County, Arizona;
An Easement for Vehicular and Pedestrian ingress and egress and parking over all driveways, roadways and walkways as set forth in the Reciprocal Easement Agreement recorded in Docket 11395, page 1951.
Office of Acquisition and Property Management, Interior.
Notice of public availability.
The Department of the Interior is publishing this notice to advise the public of the availability of the Fiscal Year (FY) 2021 Service Contract Inventory, in accordance with section 743 of Division C of the Consolidated Appropriations Act of 2010.
The Office of Federal Procurement Policy (OFPP) policy guides are available online at
The Department of the Interior has posted its FY 2021 Service Contract Inventory on the Office of Acquisition and Property Management portion of the Department of the Interior website at
Valerie Green, Acquisition Analyst, Policy Branch, Office of Acquisition and Property Management (PAM), Department of the Interior. Phone number: 202-513-0797, email:
Section 743 of Division C of the Consolidated Appropriations Act of 2010 (Pub. L. 111-117) requires civilian agencies to prepare an annual inventory of their service contracts. The analyses help inform agency managers whether contractors are being used appropriately or if rebalancing the workforce may be required.
In addition to the agency analyses, the process includes extracting contract data from the Federal Procurement Data System (FPDS) and the System for Award Management (SAM) and the consolidated output file is posted for public use.
The Inventory provides information on service contract actions over $25,000 that the Department made in FY 2021. The information is organized by function to show how contracted resources are distributed throughout the Department. The Department's analysis of its Service Contract Inventory is summarized in the FY 2021 Service Contract Inventory Report. The 2021 Report was developed in accordance with guidance issued on December 19, 2011, and November 5, 2010, by the Office of Management and Budget's Office of Federal Procurement Policy.
The authority for this action is the Consolidated Appropriations Act of 2010 (Pub. L. 111-117).
Bureau of Land Management, Interior.
Notice of public meetings.
In accordance with the Federal Land Policy and Management Act, as amended, the Federal Advisory Committee Act, and the Federal Lands Recreation Enhancement Act, the U.S. Department of the Interior, Bureau of Land Management's (BLM) Utah Resource Advisory Council (RAC) will meet as indicated below.
The Utah RAC will hold meetings on March 20, 2024, with a field tour on March 21, 2024; and August 14, 2024, with a field tour on August 15, 2024. Each meeting will be held in person, with an option for virtual participation on the first day. All meetings and field tours will take place from 8:00 a.m. to 4:30 p.m. Mountain Time (MT) and are open to the public.
The March 20 meeting will be held at the Ramada by Wyndham St. George, 1440 E St. George Blvd., St. George, Utah 84790. The March 21 field tour will visit Red Cliffs National Conservation Area and will commence and conclude at the BLM Utah St. George Field Office, 345 E Riverside Dr., St. George, Utah 84790.
The August 14 meeting will be held at the BLM Utah West Desert District Office, Simpson Springs North and South Conference Rooms, 491 John Glenn Rd., Salt Lake City, UT 84116. The August 15 field tour will visit the West Desert District area.
Agendas, and in-person and virtual meeting access information will be posted on the Utah RAC web page 30 days before each meeting at
Written comments to address the Utah RAC may be sent to the BLM Utah State Office, 440 West 200 South, Suite 500, Salt Lake City, UT 84101, or via email to
Christina Fithian, Management and Programs Analyst, BLM Utah State Office, 440 West 200 South, Suite 500, Salt Lake City, UT 84101; phone (801) 539-4022; or email
The Utah RAC provides recommendations to the Secretary of the Interior, through the BLM, on a variety of public lands issues. Agenda topics for the March meeting include updates and overview of BLM district and state planning efforts, and other issues as appropriate. Agenda topics for the August meeting include updates and overview of BLM district and statewide planning efforts and other issues as appropriate. Members of the public are welcome on field tours but must provide their own transportation and meals. Individuals who plan to attend the field tour must RSVP at least one week in advance of the field tour with the person listed in the
Detailed minutes for the Utah RAC meeting will be maintained in the BLM Utah State Office and will be available for public inspection and reproduction during regular business hours within 90 days following the meeting. Minutes will also be posted to the Utah RAC web page.
Bureau of Land Management, Interior.
Notice of official filing.
The plat of survey of the following described lands is scheduled to be officially filed 30 days after the date of this publication in the Bureau of Land Management (BLM), New Mexico State Office, Santa Fe, New Mexico. The surveys announced in this notice are necessary for the management of lands administered by the agency indicated.
This plat will be available for inspection in the New Mexico State Office, Bureau of Land Management, 301 Dinosaur Trail, Santa Fe, New Mexico 85004-4427. Protests of a survey should be sent to the New Mexico State Director at the above address.
Michael L. Hart, Acting Chief Cadastral Surveyor; (505) 761-8908;
The plat representing the dependent resurvey and survey of a tract of land in Townships 14 and 15 North, Range 16 West, accepted January 19, 2024, for Group No. 1215, New Mexico.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Region.
A person or party who wishes to protest against this survey must file a written notice of protest within 30 calendar days from the date of this publication with the New Mexico State Director, Bureau of Land Management, stating that they wish to protest.
A statement of reasons for a protest may be filed with the notice of protest to the State Director, or the statement of reasons must be filed with the State Director within 30 days after the protest is filed. Before including your address, or other personal information in your protest, please be aware that your entire protest, 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.
National Park Service, Department of the Interior.
Request for comments.
The National Park Service (NPS) is soliciting written comments from its Tribal, national, State, and local historic preservation partners, NPS regional offices and parks, other Federal agencies, and the public regarding the Draft TCP Bulletin.
Comments should be submitted by March 25, 2024.
A Portable Document Format (PDF) copy of the Draft TCP Bulletin may be accessed at:
A printed copy of the Draft TCP Bulletin is available upon request.
Comments may be submitted via email to
Sherry A. Frear, Chief and Deputy Keeper, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The NPS is the Federal agency tasked by the Secretary of the Interior with administering the National Register of Historic Places (National Register). The revision and reissue of National Register Bulletin 38: Guidelines for Evaluating and Documenting Traditional Cultural Places (TCP Bulletin) is in accordance with the authority provided by the National Preservation Act of 1966 (54 U. S. C. 300101,
With the release of the TCP Bulletin in 1990, the NPS provided guidance for evaluating and documenting places for inclusion in the National Register of Historic Places (National Register) for their historic relationships with traditional cultural communities. The TCP Bulletin was revised and reissued in 1992 to address changes in the NHPA providing that places of traditional religious and cultural importance to Native American Tribes or Native Hawaiian Organizations may be included in the National Register. It was revised and reissued again in 1998 to clarify that Traditional Cultural Places (TCPs) are not a new property type nor an additional level of significance. The TCP Bulletin as published in 1990, and revised in 1992 and 1998, has been an essential resource for evaluating and documenting TCPs. Over the past decades, there have been requests to the NPS for further clarification and expansion of this guidance from Native American Tribes, Native Hawaiian Organizations, State and Tribal Historic
From 2011 to 2013, the NPS' National Register Program in Washington, DC, sponsored, attended, and participated in numerous meetings and workshops to solicit suggestions from the nation's preservation community on how to improve the guidance provided by the TCP Bulletin. As a result of this effort, the NPS received many verbal, written, and email comments about the TCP Bulletin from Native American Tribes, Native Hawaiian Organizations, State and Tribal Historic Preservation Officers, Federal agencies, national and regional preservation organizations, and preservation professionals throughout the country. The purpose of this effort was to ensure that an updated edition of the TCP Bulletin addressed the needs of the preservation community to the greatest possible extent. A draft document was prepared and readied in 2017 for issuance for comment, but was not released for comment.
In 2021, the NPS revived its efforts to revise and reissue the TCP Bulletin. The 2017 draft was further revised and titled National Register Bulletin: Identifying, Evaluating, and Documenting Traditional Cultural Places. In October 2022 the National Register Bulletin: Identifying, Evaluating, and Documenting Traditional Cultural Places (Draft TCP Bulletin) was publicly shared through the Draft TCP Bulletin project website at
From January through April 2023 the NPS conducted eleven (11) webinars directed to State and Tribal Historic Preservation Officers, Federal agencies, national and regional preservation organizations, preservation professionals, and the public, to present the Draft TCP Bulletin content, and answer questions regarding the revisions, and the revision and reissuance process. The webinars were attended by 402 individuals from 185 organizations. The NPS conducted government-to-government consultation through five (5) webinars, to present the Draft TCP Bulletin content, receive comments, and answer questions regarding the revisions, and the revision and reissuance process: four (4) for Native American Tribes; and one (1) for Native Hawaiian Organizations. These Tribal consultations reached individuals from 42 Tribes. The NPS further conducted consultation through one (1) webinar for Alaska Native Corporations.
The Draft TCP Bulletin was released for comment from November 1, 2022, through April 30, 2023. Eighty-five (85) submissions were received via letter, email, and the project website, totaling approximately 900 comments.
From May through October 2023 the NPS reviewed all written comments and revised the Draft TCP Bulletin accordingly, as follows:
Defined “living community” (pp. 22-23).
Clarified the difference between “family,” “extended family,” and “living community” (p. 22).
Expanded the discussion of cultural beliefs, customs, and practices (pp. 23-25).
Expanded the discussion of community history and community identity (pp. 25-26).
Clarified required TCP characteristics (p. 27).
Added an analysis of a listed TCP nomination (pp. 30-32).
Added an analysis of an unsuccessful TCP request for determination of eligibility (pp. 32-33).
Moved “Section III. Terminology” to a new subsection within Section II “What Is a Traditional Cultural Place,” titled “Notes on Terminology” (pp. 33-37).
Added discussion of adequacy of documentation submitted in a nomination, and the role of the Keeper in evaluating that documentation (p. 37).
Added discussion regarding the listing animals (pp. 12, 53).
Revised language regarding plants and animals as character-defining features (p. 53).
Corrected language regarding the reach of Criterion D to ethnographic, archeological, sociological, folkloric, or other studies (p. 66).
Added example to illustrate that information potential under Criterion D is not exclusive to archaeological data (p. 70).
Expanded guidance regarding assessing the level of significance for a place (pp. 105-106).
Clarified confidentiality issues and protections (pp. 39-45, 98-100).
Additional information added, old example removed, and new example added regarding determining a place's boundary (pp. 113-116).
Clarified definitions as used within the Draft TCP Bulletin for “Native Americans” and “Native American Tribe” (p. 125).
Technical edits correcting grammar and punctuation, and for clarity and readability, were made throughout.
Bureau of Reclamation, Interior.
Notice of intent; request for comments.
The Bureau of Reclamation (Reclamation) intends to prepare an environmental impact statement (EIS) for the Scoggins Dam Safety Modifications Project in the Tualatin Basin, Oregon. The purpose of the project is to improve public safety by reducing risk associated with severe seismic loadings while continuing to meet authorized project purposes. Reclamation is seeking public comments to identify significant issues or other alternatives to be addressed in the EIS.
Submit written comments on the scope of the EIS on or before February 26, 2024.
Reclamation will hold two in-person and two web-based virtual public scoping meetings on the following dates:
1. February 8, 2024, 5 p.m. to 6:30 p.m. (PST), Forest Grove, OR.
2. February 8, 2024, 6:30 p.m. to 8 p.m. (PST), Forest Grove, OR.
3. February 13, 2024, 11 a.m. to 1 p.m. (PST), Virtual (Zoom webinar).
4. February 13, 2024, 4 p.m. to 6 p.m. (PST), Virtual (Zoom webinar).
Send written scoping comments, requests to be added to the project mailing list, or requests for other special assistance needs via email to
The in-person meetings will be held at the Community Auditorium, 1915 Main Street, Forest Grove, OR 97116.
The web-based virtual meetings will be accessible at:
To view more information regarding this project, go to:
Rebecca Thompson, Bureau of Reclamation, Columbia-Pacific Northwest Regional Office, 1150 Curtis Road, Suite 100, Boise, Idaho 83706-1234; telephone (208) 600-2134; email
Individuals who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services to contact the above individual during normal business hours or to leave a message or question after hours. You will receive a reply during normal business hours.
This
Scoggins Dam is an earthfill embankment dam located on Scoggins Creek, a tributary of the Tualatin River, about 25 miles west of Portland, Oregon. Construction of this 151-foot-high, 2,700-foot-long dam was completed in 1975. The dam's reservoir, Henry Hagg Lake, is the primary source of water for the Tualatin Basin, storing nearly 60,000 acre-feet (active 53,600 acre-feet), providing water for municipal and industrial uses, irrigation, water quality, fish and wildlife habitat, recreation, and flood control. The facility is operated and maintained by the Tualatin Valley Irrigation District. There are roughly 11 miles of shoreline around the lake at full pool; recreation facilities and trails in this area are managed by Washington County as Scoggins Valley Park.
The area of Scoggins Dam and its reservoir have high potential for severe loading initiated by an extreme seismic event from identified active faults, primarily the Cascadia Subduction Zone (CSZ), a 600-mile fault stretching from northern California to northern Vancouver Island in Canada. At its closest, the CSZ is 118 miles to the west of the dam. The principal concerns for Scoggins Dam are uncontrolled releases or dam breaches (dam failure) caused by severe loading from a CSZ seismic event. The dam could also experience less severe loading from local crustal fault earthquakes, the closest being the Gales Creek fault zone.
Around 2007, after completing general investigations of potential seismic hazards at the dam, Reclamation recognized the potential impacts of a CSZ seismic event to Scoggins Dam. Reclamation continued field data collection and evaluation and risk analyses updates through 2011 to improve the understanding of seismic risk to the dam. Since 2011, Reclamation has looked at various structural and non-structural options to reduce seismic risk, including options that would increase reservoir storage. In 2022, following completion of a Dam Safety Advisory Team review, Reclamation began furthering design of a dam-safety only structural option that would reduce risk in accordance with Reclamation's public protection guidelines. This alternative will be evaluated in the EIS.
Reclamation proposes to reduce the risk to Scoggins Dam in the occurrence of a CSZ seismic event by improving the loadings response performance of the facility. This would be accomplished by raising the dam crest, constructing a downstream shear key, creating a new spillway, and placing additional berm material over the existing dam. This project would not create additional reservoir storage in Henry Hagg Lake.
Proposed dam structure modifications include:
• Excavate and backfill portions of the crest and existing embankment.
• Construct a downstream shear key.
• Install a downstream rock filter and drain.
• Install a stability berm over the shear key and downstream slope of dam.
• Raise the dam crest by ~7 feet.
• Demolish the existing spillway, bridge, and ancillary features.
• Construct a new spillway, bridge, and ancillary features and extend outlet works.
• Construct a new two-lane road across the dam.
The existing road across the dam would be closed during construction. An alternative road would be constructed to provide safe public transport. The project may also require permanently rerouting a portion of the Stimson Mainline Road to accommodate the expanded stability berm.
In addition to work on the dam, the project would include modification to structures around the reservoir such as culverts and recreation trails. Materials for construction would be excavated at one or more borrow sites on the east side of the reservoir, requiring the removal of large trees. Alternatives for accessing and transporting materials from the borrow sites will be investigated in the EIS and may include a combination of constructing a temporary haul route and using the existing Scoggins Valley Road.
In 2001, the Tualatin Basin Water Supply Feasibility Study was initiated to evaluate a range of water supply options in the basin, including raising Scoggins Dam (publication in the
NEPA [42 U.S.C. 4321
Before including your address, phone number, email address, or other personal, identifying information in your comment submission, please be advised that the entire submission, including your personal identifying information, may be made publicly available at any time. While a commenter may request that Reclamation withhold personal identifying information from public review, Reclamation cannot guarantee that it will be able to do so.
For special assistance at one of the scoping meetings, please contact Rebecca Thompson or the TDD line (see
Bureau of Reclamation, Interior.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act of 1972, the Bureau of Reclamation (Reclamation) is publishing this notice to announce that a Federal Advisory Committee meeting of the Glen Canyon Dam Adaptive Management Work Group (AMWG) will take place. The meeting is open to the public.
The meeting will be held in-person and virtually on Wednesday, February 28, 2024, from 9:30 a.m. to approximately 5 p.m. (MST); and Thursday, February 29, 2024, from 8:30 a.m. to approximately 3:30 p.m. (MST).
The in-person meeting will be held at the Hilton Garden Inn, Phoenix Tempe University Research Park, 7290 S Price Road, Tempe, AZ 85283 in the Ballroom.
The virtual meeting held on Wednesday, February 28, 2024, may be accessed at
Meeting Number: 2764 950 7827, Password: AMP28.
The virtual meeting held on Thursday, February 29, 2024, may be accessed at
Meeting Number: 2763 074 1381, Password: AMP29.
Mr. William Stewart, Bureau of Reclamation, telephone (385) 622-2179, email at
The Glen Canyon Dam Adaptive Management Program (GCDAMP) was implemented as a result of the Record of Decision on the Operation of Glen Canyon Dam Final Environmental Impact Statement to comply with consultation requirements of the Grand Canyon Protection Act (Pub. L. 102-575) of 1992. The AMWG makes recommendations to the Secretary of the Interior concerning Glen Canyon Dam operations and other management actions to protect resources downstream of Glen Canyon Dam, consistent with the Grand Canyon Protection Act. The AMWG meets two to three times a year.
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.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint regarding
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Optimum Communications Services, Inc. on January 19, 2024. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain network equipment supporting NETCONF. The complaint names as respondents: Changsha Silun Network Technology Co., Ltd. of China; Hunan Maiqiang Network Technology Company Limited of China; Hunan Zikun Information Technology Co., Ltd. of China; and Guangzhou Qiton Electronics Technology Co., Ltd. of China. The complainant requests that the Commission issue a general exclusion order, and cease and desist orders.
Proposed respondents, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. Submissions should refer to the docket number (“Docket No. 3718”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 15, 2023, under section 337 of the Tariff Act of 1930, as amended, on behalf of Motorola Mobility LLC of Chicago, Illinois. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain cellular base station communication equipment, components thereof, and products containing same by reason of the infringement of certain claims of U.S. Patent No. 11,184,130 (“the '130 patent”); U.S. Patent No. 11,601,896 (“the '896 patent”); U.S. Patent No. 11,284,466 (“the '466 patent”); and U.S. Patent No. 10,869,234 (“the '234 patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute. The complainant requests that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Pathenia M. Proctor, The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 11 and 14-20 of the '130 patent; claims 11-20 of the '896 patent; claims 1-10 and 12-15 of the '466 patent; and claims 12-19 of the '234 patent; and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “cellular base station communication equipment, specifically 5G NR radio units and baseband units, components thereof, and products containing same”;
(3) Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the presiding administrative law judge shall take evidence or other information and hear arguments from the parties or other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, which shall be limited to the statutory public interest factors set forth in 19 U.S.C. 1337(d)(1), (f)(1), (g)(1);
(4) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Motorola Mobility LLC, 222 W Merchandise Mart Plaza, Suite 1800, Chicago, Illinois 60654.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served: Ericsson AB, Torshamnsgatan 23, Kista, 16480 Stockholm, Sweden.
Telefonaktiebolaget LM Ericsson, Torshamnsgatan 21, Kista, SE-164 83, Stockholm, Sweden.
Ericsson Inc., 6300 Legacy Drive, Plano, TX 75024.
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW, Suite 401, Washington, DC 20436; and
(5) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainant of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
On January 17, 2024, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Northern District of California in the lawsuit entitled
In their complaint, the United States and the States of Illinois and Alabama allege that Swinerton Builders (Swinerton) violated the Clean Water Act during construction of solar energy facilities in Alabama, Idaho, and Illinois. The United States and the States allege that Swinerton discharged sediment in stormwater from the Alabama and Idaho sites to nearby waters without authorization from a discharge permit, and violated the conditions and limitations in Swinerton's discharge permits at the Alabama and Illinois sites. The proposed Consent Decree requires Swinerton to implement significant mitigation actions to offset the environmental harms of its discharges in Alabama and Idaho. The Consent Decree also requires Swinerton to pay a civil penalty of $2,300,000 to the plaintiffs, with $1,614,600 to the United States, $144,900 to the State of Illinois, and $540,500 to Alabama.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $11.50 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy exclusive of exhibits and signature pages, the cost is $7.25.
The Bureau of International Labor Affairs, Department of Labor.
Notice of amendment to procedural guidelines for the development and maintenance of a list of goods produced by child labor or forced labor in violation of international standards.
The U.S. Department of Labor's Bureau of International Labor Affairs (“ILAB”) amends its procedural guidelines (“Guidelines”) for the development and maintenance of a list of goods from countries that ILAB has reason to believe are produced by child labor or forced labor in violation of international standards (“List”). The Guidelines establish the process for the public submission of information and the evaluation and reporting process to be used by the U.S. Department of Labor's (“DOL or Department”) Office of Child Labor, Forced Labor, and Human Trafficking (“Office”) in ILAB in maintaining and updating the List. DOL is required to develop and make available to the public the List pursuant to the Trafficking Victims Protection Reauthorization Act of 2005.
Submitters of information are requested to provide their submission to DOL's Office of Child Labor, Forced Labor, and Human Trafficking (OCFT) at the email or physical address below by January 22, 2024.
The Department of Labor requests that your submissions through the portal comply with our DOL Policies as well as the 508 Standards as referenced above.
Nadia Al-Dayel. Phone: (202) 693-4896.
Through this notice, DOL incorporates an amendment to the Department's mandate for the development and maintenance of the List set forth in the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2018, Sec. 133(a), Public Law 115-425, 132 Stat. 5472. This 2018 Act directs that the List include, “to the extent practicable, goods that are produced with inputs that are produced with forced labor or child labor.”
Section 105(b)(1) of the Trafficking Victims Protection Reauthorization Act of 2005 (“TVPRA of 2005”), 22 U.S.C. 7112(b)(1), directed the Secretary of Labor, acting through the Bureau of International Labor Affairs, to “carry out additional activities to monitor and combat forced labor and child labor in foreign countries as described in paragraph (2).” Section 105(b)(2)(C) of
The Office carries out the Department's responsibilities in the TVPRA of 2005, as amended. Pursuant to this mandate, DOL published in the
Though the Guidelines were initially adopted after offering the public an opportunity to submit comments, the Department is not seeking comment on this amendment. The Department notes that the amendment restates changes in the enabling legislation, the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2018, and the Guidelines themselves simply clarify the process by which the Department develops and maintains the List as required under the TVPRA.
The Office will evaluate all information received according to the processes outlined in these amended Guidelines. Goods that meet the criteria outlined in these amended Guidelines will be placed on the List, published in the
This notice makes the following revisions to the Guidelines. First, in order to reflect the List's mandate, as revised by the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2018, revisions to Section A of the Guidelines are necessary. The Department therefore integrates language about supply chains into the description of each of the factors considered in the development and maintenance of the List in Section A, and defines the term “supply chain” in Section C. Second, the Department adds one sentence to further explain its procedures for adding goods produced with inputs produced with child labor or forced labor to the List: “If child labor or forced labor was used in the production or extraction of a good, and that good is likely to be found in the supply chain of a downstream good, then the downstream good and the country in which it was produced may be placed on the List.” Third, the Department updates and removes one sentence from Section A to better align with existing procedures for the maintenance of the List in section B. The Department therefore replaces the word “inform” with “notify” in Section A and removes the following sentence from Section A: “The Office will review these responses and make a determination as to their relevance.” Fourth, the Department replaces the phrase “taken into consideration” with “considered” in Section A. Fifth, the Department adds “non-public” to clarify the sentence, “DOL's postings on its website of non-public source material used in identifying goods and countries on the List will be redacted to remove company or individual names, and other confidential material, pursuant to applicable laws and regulations” in Section A. Sixth, the Department replaces the word “removed” with “considered for removal” in Section B. Finally, the Department removes references to the initial creation of the List as no longer relevant and updates the definition of “forced labor” by removing gender-specific language.
The Office will make use of all relevant information, whether gathered through research, public submissions of information, a public hearing, interagency consultations, or other means, in developing the List. In the interest of maintaining a transparent process, the Office will not accept classified information in developing the List. The Office may request that any such information brought to its attention be declassified. If submissions contain confidential or personal information, the Office may redact such information in accordance with applicable laws and regulations before making the submission available to the public.
In evaluating information, the Office will consider and weigh several factors, including:
1. Nature of information. Whether the information about child labor, forced labor, or supply chains gathered from research, public submissions, hearing testimony, or other sources is relevant and probative, and meets the definitions of child labor or forced labor.
2. Date of information. Whether the information about child labor or forced labor in the production of the good or the good's supply chain is no more than 7 years old at the time of receipt. More current information will generally be given priority, and information older than 7 years will generally not be considered.
3. Source of information. Whether the information, either from primary or secondary sources, is from a source whose methodology, prior publications, degree of familiarity and experience with international labor standards or supply chains, and/or reputation for accuracy and objectivity, warrants a determination that it is relevant and probative.
4. Extent of corroboration. The extent to which the information about the use of child labor or forced labor in the production of a good or a good's supply chain is corroborated by other sources.
5. Significant incidence of child labor or forced labor. Whether the information about the use of child labor or forced labor in the production of a good or a good's supply chain warrants a determination that the incidence of such practices is significant in the country or good in question. Information that relates only to a single company or facility; or that indicates an isolated incident of child labor or forced labor, will ordinarily not weigh in favor of a finding that a good is produced in violation of international standards. Information that demonstrates a significant incidence of child labor or forced labor in the production of a particular good or a good's supply chain, although not necessarily representing a pattern or practice in the industry as a whole, will ordinarily weigh in favor of a finding that a good is produced in violation of international standards. Likewise, information that demonstrates that a good with significant incidence of child labor or forced labor in its production is an input to a downstream good will ordinarily weigh in favor of a finding that the downstream good is produced in violation of international standards.
In determining which goods and countries are to be placed on the List, the Office will, as appropriate, take into consideration the stages in the chain of a good's production. To the extent practicable, the List will include goods that are produced with inputs that are
Information on government, industry, or third-party actions and initiatives to combat child labor or forced labor will be considered, although this information is not necessarily sufficient in and of itself to prevent a good and country from being listed. In evaluating such information, the Office will consider particularly relevant and probative any evidence of government, industry, and third-party actions and initiatives that are effective in significantly reducing if not eliminating child labor and forced labor.
Before publication of the List, the Office will notify the relevant foreign governments of their presence on the List and request their responses. The List, along with a listing of the sources used to identify the goods and countries (“entries”) on it, will be published in the
For each entry, the List will indicate whether the good is made using child labor, forced labor, or both. As the List continues to be maintained and updated, the List will also indicate the date when each entry was included. The List will not include any company or individual names. DOL's postings on its website of non-public source material used in identifying goods and countries on the List will be redacted to remove company or individual names, and other confidential material, pursuant to applicable laws and regulations.
1. The Office will periodically review and update the List, as appropriate. The Office conducts ongoing research and monitoring of child labor, forced labor, and supply chains, and if relevant information is obtained through such research, the Office may add an entry to, or remove an entry from the List using the process described in Section A of the Guidelines. The Office may also update the List on the basis of public information submissions, as detailed below.
2. Any party may at any time file an information submission with the Office regarding the addition or removal of an entry from the List. Submitters should take note of the criteria listed in Section A of the Guidelines.
3. The Office will review any submission of information to determine whether it provides relevant and probative information.
4. The Office may consider a submission less reliable if it determines that: The submission does not clearly indicate the source(s) of the information presented; the submission does not identify the party filing the submission or is not signed and dated; the submission does not provide relevant or probative information; or, the information is not within the scope of the TVPRA and/or does not address child labor or forced labor as defined herein. All submissions received will be made available to the public on the DOL website, consistent with applicable laws or regulations.
5. In evaluating a submission, the Office will conduct further examination of available information relating to the good and country, as necessary, to assist the Office in making a determination concerning the addition or removal of the good from the List. The Office will undertake consultations with relevant U.S. government agencies and foreign governments, and may hold a public hearing for the purpose of receiving relevant information from interested persons.
6. In order for an entry to be considered for removal from the List, any person filing information regarding the entry must provide information that demonstrates that there is no significant incidence of child labor or forced labor in the production of the particular good in the country in question. In evaluating information on government, industry, or third-party actions and initiatives to combat child labor or forced labor, the Office will consider particularly relevant and probative any available evidence of government, industry, and third-party actions that are effective in significantly reducing if not eliminating child labor and forced labor.
7. Where the Office has made a determination concerning the addition, maintenance, or removal of the entry from the List, and where otherwise appropriate, the Office will publish an updated List in the
“Child Labor”: “Child labor” under international standards means all work performed by a person below the age of 15. It also includes all work performed by a person below the age of 18 in the following practices: (A) All forms of slavery or practices similar to slavery, such as the sale or trafficking of children, debt bondage and serfdom, or forced or compulsory labor, including forced or compulsory recruitment of children for use in armed conflict; (B) the use, procuring, or offering of a child for prostitution, for the production of pornography or for pornographic purposes; (C) the use, procuring, or offering of a child for illicit activities, in particular for the production and trafficking of drugs; and (D) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety, or morals of children. The work referred to in subparagraph (D) is determined by the laws, regulations, or competent authority of the country involved, after consultation with the organizations of employers and workers concerned and taking into consideration relevant international standards. This definition will not apply to work specifically authorized by national laws, including work done by children in schools for general, vocational or technical education or in other training institutions, where such work is carried out in accordance with international standards under conditions prescribed by the competent authority, and does not prejudice children's attendance in school or their capacity to benefit from the instruction received.
“Countries”: “Countries” means any foreign country or territory, including any overseas dependent territory or possession of a foreign country, or the Trust Territory of the Pacific Islands.
“Forced Labor”: “Forced labor” under international standards means all work or service which is exacted from any person under the menace of any penalty for its nonperformance and for which the worker does not offer themselves voluntarily, and includes indentured labor. “Forced labor” includes work provided or obtained by force, fraud, or coercion, including: (1) By threats of serious harm to, or physical restraint against any person; (2) by means of any scheme, plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint; or (3) by means of the abuse
“Goods”: “Goods” means goods, wares, articles, materials, items, supplies, and merchandise.
“Indentured Labor”: “Indentured labor” means all labor undertaken pursuant to a contract entered into by an employee the enforcement of which can be accompanied by process or penalties.
“International Standards”: “International standards” means generally accepted international standards relating to forced labor and child labor, such as international conventions and treaties. These Guidelines employ definitions of “child labor” and “forced labor” derived from international standards.
“Produced”: “Produced” means mined, extracted, harvested, farmed, produced, created, and manufactured.
“Supply Chain”: “Supply chain” means the chain or network comprised of all organizations and individuals involved in producing, processing, trading, transporting and/or distributing a product or commodity from its point of origin, through any intermediary goods, to the final retailer.
Signed at Washington, DC.
Office of Management and Budget, Executive Office of the President.
Notice and request for comments.
The Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) is proposing to revise the information collection 0348-0065 that it uses for members of the public who request a meeting with OIRA on rules under review. The information collected would be subject to the Paperwork Reduction Act (PRA) and this notice announces and requests comment on OIRA's proposal for such a collection.
Provide comments within 30 days of January 25, 2024.
Submit comments by the following method:
•
Lisa Jones, 202-395-5897.
These meetings occur at the initiative and request of outside parties who request a meeting to present views on a regulatory action under OIRA review. OIRA invites representatives from the agency or agencies that would issue the regulatory action. If such meetings occur, OIRA does not take minutes during the meeting but would post on
To help ensure transparency associated with meetings pursuant to Executive Order 12866, OIRA collects and discloses the following information from outside parties that request a meeting with OIRA to present their views on a regulatory action currently under review:
1. The name of the regulatory action under review on which the party would like to present its views.
2. Names of all attendees who will be present at the meeting from the outside party or parties, including each attendee's organization or affiliation.
3. Electronic copies of all briefing materials provided by the requester that will be used during the presentation.
4. An acknowledgment by the requesting party that all information submitted to OIRA pursuant to this collection and meeting request will be made publicly available at
• Narrative descriptions accompanying meeting requests. An optional narrative description, provided by the requester, that states the purpose of the meeting and a brief, informal summary of the views they anticipate presenting. This information, which would be disclosed, would help OIRA
• Meeting requesters and represented interests. Individual or organizational meeting requesters often request meetings on behalf of themselves. Sometimes, however, a meeting requester does so on behalf of another individual or organization with interests in the regulatory action. For example, a law firm or government affairs firm may request an E.O. 12866 meeting on behalf of a client who has a stake in the regulatory action. In other cases, a congressional office may facilitate a meeting request for an individual constituent concerned about a rulemaking. OIRA thus proposes to collect information in mandatory fields on the (1) name of the individual requesting the meeting; (2) the meeting requester's organization, if any; (3) the name of the individual or organization whose interests are being represented; and (4) if the previous field names an individual, the individual's organizational affiliation, if any.
This information would facilitate transparency about who requests E.O. 12866 meetings, the interests represented, and the types of organizations involved. In addition, OIRA will also continue to take meeting attendance and, when feasible, update this information for the public record in cases where participant information is not initially provided.
• Previous request or participation in an E.O. 12866 meeting. OIRA proposes to require meeting requesters (the individual participants rather than their representatives) to note whether they have previously requested or participated in an E.O. 12866 meeting on any regulatory action within the last three years. This information, which would be disclosed, would allow OIRA to track participation of members of the public that have not historically requested meetings. In addition, OIRA proposes to ask and disclose whether a requester has previously requested or participated in an E.O. 12866 meeting associated with the specific regulatory action (at the same stage of the regulatory process).
• Request for accommodations. OIRA also welcomes meeting requesters to specify whether any accommodations are requested.
OIRA welcomes any and all public comments on the proposed revisions to the collection of information, such as the accuracy of OIRA's burden estimate, the practical utility of collecting this information, and whether there are additional pieces of information that could be collected from meeting requesters to further the disclosure provisions of Executive Order 12866.
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 National Science Board's (NSB) NSB-NSF Commission on Merit Review hereby gives notice of the scheduling of a videoconference meeting for the transaction of National Science Board business pursuant to the National Science Foundation Act and the Government in the Sunshine Act.
Monday, January 26, 2024, from 3:00 p.m.-5:00 p.m. Eastern.
This meeting will be held by videoconference through the National Science Foundation.
Open.
The agenda of the meeting is: Commission Chair's opening remarks; Discussion assessing and prioritizing topics for potential implementation and accountability suggestions; Commission Chair's closing remarks.
Point of contact for this meeting is: (Chris Blair,
National Science Foundation.
Notice of permit modification request.
The National Science Foundation (NSF) is required to publish a notice of requests to modify permits issued to conduct activities regulated under the Antarctic Conservation Act of 1978. This is the required notice of a requested permit modification.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by February 26, 2024. Permit applications 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.
Andrew Titmus, ACA Permit Officer, Office of Polar Programs, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314; 703-292-4479; or
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Public Law 95-541), 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.
Now, the permit holder proposes a permit modification to include incidental mortality during research activities given the risk associated with various techniques used on different species. Most of the permitted research activities are unlikely to result in an incidental mortality (
Nuclear Regulatory Commission.
Notice; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an exemption in response to the March 29, 2023, request from Kewaunee Solutions, Inc., (KS) Kewaunee Power Station (KPS), located in Kewaunee County, Wisconsin. The exemption would permit KS to use funds from the KPS nuclear decommissioning trust (NDT) for the management of site restoration activities and allow trust disbursements for site restoration activities to be made without prior notice to the NRC. The NRC staff is issuing an environmental assessment (EA) and finding of no significant impact (FONSI) associated with the proposed exemption.
The EA and FONSI referenced in this document are available on January 25, 2024.
Please refer to Docket ID NRC-2024-0023 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
•
•
• NRC's PDR: The PDR, where you may examine and order copies of publicly available documents, is open by appointment. To make an appointment to visit the PDR, please send an email to
Karl Sturzebecher, Office of Nuclear Material
The NRC is considering issuance of an exemption from the requirements of paragraph (a)(8)(i)(A) of section 50.82 “Termination of license,” of part 50, “Domestic Licensing of Production and Utilization Facilities,” of title 10 of the
The exemption would permit KS to use funds from the KPS NDT for site restoration activities for KPS in the same manner that funds from the NDT are used under 10 CFR 50.82(a)(8) for decommissioning activities. The exemption request submitted by KPS was based on its analysis of the expected KPS decommissioning and site restoration costs, as provided in the KPS Post-Shutdown Decommissioning Activities Report (PSDAR), as supplemented, which was submitted by KS to the NRC on May 13, 2021.
The exemption would also allow trust disbursements for site restoration activities to be made without prior notice to the NRC, which is consistent with a previous exemption allowing KS to use the KPS NDT for the management of spent fuel, and to allow trust disbursements for spent fuel management to be made without prior NRC notice, which was approved on May 21, 2014. The NRC staff's analysis will include evaluation of the KPS NDT in view of the prior exemption.
Consistent with 10 CFR 51.21, “Criteria for and identification of licensing and regulatory actions requiring environmental assessments,” the NRC has determined that an EA is the appropriate form of environmental review for the requested action and prepared the following EA that analyzes the environmental impacts of the proposed action. Based on the results of the EA, which is provided in Section II of this document, and in accordance with paragraph (a) of 10 CFR 51.31, “Determinations based on environmental assessment,” the NRC has determined not to prepare an environmental impact statement for the proposed action and is issuing a FONSI.
The proposed action would partially exempt KS from the requirements set forth in 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv). Specifically, the proposed action would allow KS to use funds from the KPS NDT for site restoration activities not associated with radiological decommissioning activities and would exempt KS from the requirement for prior notification to the NRC for these withdrawals.
The proposed action is in accordance with KS's application dated March 29, 2023, as supplemented by letter dated October 5, 2023.
By letter dated February 25, 2013, the previous holder of the KPS RFOL, Dominion Energy Kewaunee (DEK), submitted a certification to the NRC indicating it would permanently cease power operations at KPS on May 7, 2013. On May 7, 2013, DEK permanently ceased power operation at KPS. On May 14, 2013, DEK certified that it had permanently defueled the KPS reactor vessel.
By letter dated March 29, 2023, as supplemented by letter dated October 5, 2023, KS requested an exemption to allow KPS NDT withdrawals, without prior written notification to the NRC, for site restoration activities for KPS.
As required by 10 CFR 50.82(a)(8)(i)(A), decommissioning trust funds may be used by the licensee if the withdrawals are for legitimate decommissioning activity expenses, consistent with the definition of decommissioning in 10 CFR 50.2, “Definitions.” This definition addresses radiological decommissioning and does not include activities associated with site restoration. Similarly, the requirements of 10 CFR 50.75(h)(1)(iv) restrict the use of decommissioning trust fund disbursements (other than for ordinary and incidental expenses) to decommissioning expenses until final decommissioning has been completed. Therefore, exemption from 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) is needed to allow KS to use funds from the KPS NDT for site restoration activities for KPS.
In the October 5, 2023, supplement to the exemption, KS stated that the KPS DTF Status Report demonstrates that the KPS NDT contains the funds needed to cover the estimated costs of KPS radiological decommissioning and license termination, as well as spent fuel management and site restoration activities. The supplemental information also provided additional details on license termination, spent fuel management, site restoration costs, and total forecasted expenditure data, based on the DECON decommissioning method and the current schedule of decommissioning activities for KPS.
The adequacy of funds in the KPS NDT to cover the costs of activities associated with site restoration and radiological decommissioning through license termination is supported by the KS KPS PSDAR. To support site restoration activities not associated with radiological decommissioning, KS stated that it needs access to the funds in the KPS NDT in excess of those needed for radiological decommissioning.
The requirements of 10 CFR 50.75(h)(1)(iv) further provide that, except for withdrawals being made under 10 CFR 50.82(a)(8) or for payments of ordinary administrative costs and other incidental expenses of the NDT in connection with the operation of the NDT, no disbursement may be made from the NDT without written notice to the NRC at least 30 working days in advance. Therefore, an exemption from 10 CFR 50.75(h)(1)(iv) is also requested by KS to allow KS to use funds from the KPS NDT for spent fuel management and site restoration activities without prior NRC notification.
The proposed action involves an exemption from regulatory requirements that are of a financial or administrative nature and that do not have an impact on the environment. Before the NRC could approve the proposed action, it would have to conclude that there is reasonable assurance that adequate funds are available in the NDT to complete all activities associated with radiological decommissioning as well as spent fuel management and site restoration. Therefore, there would be no decrease in safety associated with the use of the NDT to also fund activities associated with site restoration.
Section 50.82(a)(8)(v) of 10 CFR requires a licensee to submit a financial assurance status report annually between the time of submitting its site-specific decommissioning cost estimate and submitting its final radiation survey to demonstrate that residual radioactivity has been reduced to a level that permits termination of its license. Section 50.82(a)(8)(vi) of 10 CFR
The proposed action would not significantly increase the probability or consequences of radiological accidents. The proposed action has no direct radiological impacts. There would be no change to the types or amounts of radiological effluents that may be released; therefore, there would be no change in occupational or public radiation exposure from the proposed action. There are no materials or chemicals introduced into the plant that could affect the characteristics or types of effluents released offsite. In addition, the method of operation of waste processing systems would not be affected by the exemption. The proposed action would not result in changes to the design basis requirements of structures, systems, and components (SSCs) that function to limit or monitor the release of effluents. All the SSCs associated with limiting the release of effluents would continue to be able to perform their functions. Moreover, no changes would be made to plant buildings or the site property from the proposed action. Therefore, there are no significant radiological environmental impacts associated with the proposed action.
With regard to potential nonradiological impacts, the proposed action would have no direct impacts on land use or water resources, including terrestrial and aquatic biota, as it involves no new construction or modification of plant operational systems. There would be no changes to the quality or quantity of nonradiological effluents and no changes to the plant's National Pollutant Discharge Elimination System permits would be needed. In addition, there would be no noticeable effect on socioeconomic conditions in the region, no environment justice impacts, no air quality impacts, and no impacts to historic and cultural resources from the proposed action. Therefore, there are no significant nonradiological environmental impacts associated with the proposed action.
Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the NRC staff considered denial of the proposed action (
There are no unresolved conflicts concerning alternative uses of available resources under the proposed action.
No additional agencies or persons were consulted regarding the environmental impact of the proposed action. On January 17, 2024, the State of Wisconsin representative was notified of this EA and FONSI.
The requested exemption from 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) would allow KS to use funds from the KPS NDT for site restoration activities for KPS, without prior written notification to the NRC. The proposed action would not significantly affect plant safety, would not have a significant adverse effect on the probability of an accident occurring, and would not have any significant radiological or nonradiological impacts. The proposed action involves an exemption from requirements that are of a financial or administrative nature and that would not have an impact on the human environment. Consistent with 10 CFR 51.21, the NRC conducted the EA for the proposed action, and this FONSI incorporates by reference the EA included in Section II of this document. Therefore, the NRC concludes that the proposed action will not have significant effects on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
Other than KS's letter dated March 29, 2023, as supplemented by letter dated October 5, 2023, there are no other environmental documents associated with this review.
Previous considerations regarding the environmental impacts of operating KPS are described in NUREG-1437, Supplement 40, “Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Kewaunee Power Station, Final Report,” which provides the latest environmental review of current operations and description of environmental conditions at KPS.
The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.
For the Nuclear Regulatory Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a Priority Mail Express International, Priority Mail International & First-Class Package International Service contract to the list of Negotiated Service Agreements in the Competitive Product List in the Mail Classification Schedule.
Christopher C. Meyerson, (202) 268-7820.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on January 12, 2024, it filed with the Postal Regulatory Commission a
Office of Science and Technology Policy.
Notice.
The Office of Science and Technology Policy publishes the names of the members selected to serve on its SES Performance Review Board (PRB).
Membership is effective on the date of this notice to January 2026.
Ms. Caitlin Pepicelli, Human Capital Specialist, Office of Science and Technology Policy, 1650 Pennsylvania Ave. NW, Washington, DC 20504. Telephone 202-881-4946.
5 U.S.C. 4314(c) requires each agency to establish, in accordance with regulations prescribed by the Office of Personnel Management, one or more PRBs. The purpose of this PRB is to review and make recommendations concerning proposed performance appraisals, ratings, bonuses, pay adjustments, and other appropriate personnel actions for incumbents of the SES positions. The Board shall consist of at least three members and more than half of the members shall consist of career appointees. The names and titles of the PRB members are as follows:
Marie Scott, Associate General Counsel, Children, Families and Aging Division, Department of Health and Human Services;
Scott Driggs, Chief Counsel, Office of the Chief Counsel, Denver, Department of Health and Human Services;
Rachel Park, Chief Counsel, Office of the Chief Counsel, New York, Department of Health and Human Services;
Constance Kossally, Chief Counsel, Office of the Chief Counsel, Atlanta, Department of Health and Human Services;
Alphonso J. Hughes, Executive Assistant Director, Administration Group, Bureau of ATF, Department of Justice;
Paula Lee, Chief Counsel, Office of the General Counsel, San Francisco, Department of Health and Human Services.
Pursuant to section 11A of the Securities Exchange Act of 1934 (“Act”),
The SROs have filed the proposed CT Plan pursuant to the Commission's September 1, 2023, Amended Order Directing the Exchange and the Financial Industry Regulatory Authority, Inc., To File a National Market System Plan Regarding Consolidated Equity Market Data.
On September 1, 2023, the Commission ordered the SROs to act jointly in developing and filing with the Commission by October 23, 2023, a proposed new single NMS plan to govern the public dissemination of real-time consolidated equity market data for NMS stocks.
In addition to the provisions required by the Amended Order, the SROs have included the following additional provisions.
The SROs have included in Section 5.3 that the Operating Committee does not need to establish Processor Selection Procedures if the Operating Committee initially selects the CQ Plan and CTA Plan's processor and the UTP Plan's processor to provide the same services to the Company that are currently provided under the CQ Plan, CTA Plan, and UTP Plan. Because the focus of the Amended Order is the selection of a new independent Administrator rather than new Processors, the SROs believe it is reasonable for the Operating Committee to have the option of continuing with the current processors without having to go through an extensive procedure for selecting the processors. The SROs believe that this option also allows for quicker implementation of the Plan by allowing the Operating Committee to focus on the selection of the new Administrator.
Additionally, at the request of SEC Staff, the SROs have included a provision in Section 7.1 that, in the event of a Regulatory Halt and the relevant Processor is unable to disseminate notice of the Regulatory Halt, notice of the Regulatory Halt may be made via an alternate Processor, if available.
Not applicable.
As set forth in the proposed Plan, and because the Members have already formed the Company as a limited liability company pursuant to the Delaware Limited Liability Company Act by filing a certificate of formation (the “Certificate”) with the Delaware Secretary of State, the SROs propose that the Plan will become effective on the date (the “Effective Date”) when approved by the Commission pursuant to Rule 608 of Regulation NMS as an NMS plan.
The SROs propose that the Plan would become operative after the steps set forth in Exhibit F of the proposed Plan are completed. Generally, the SROs believe there are six workstreams associated with the implementation of the Plan:
(1) Setting up the Plan's governance;
(2) Developing Plan fees, policies, and data subscriber agreements;
(3) Selecting the new Administrator;
(4) Contract negotiations with the new Administrator;
(5) Administrator setup; and
(6) Retirement of the CTA Plan, CQ Plan, and UTP Plan.
Within Exhibit F, the SROs have included the various steps comprising each workstream along with the timelines for completing each step. As identified in Exhibit F, some of the steps can be performed in parallel, and others have dependencies that need to be completed before they can begin. For example, a new Administrator cannot begin to set up operations until after the process to select such Administrator has been completed and the Plan has negotiated and executed a contract and related service level agreement with the selected Administrator. Likewise, the SROs believe that the fees and the policies of the proposed Plan—which cannot be determined until both an Operating Committee and Advisory Committee are convened—will drive the scope of the services that an Administrator will need to provide, which could impact the RFP responses of prospective bidders to become the Administrator. For example, if the Operating Committee decides to use a direct bill model, which is currently used by the CQ Plan and CTA Plan, the scope of the work of the Administrator would be materially different than if the Operating Committee determines to proceed with an indirect bill model, which is currently used by the UTP Plan. Other aspects of the potential fees and policies of the proposed Plan, such as whether there will be differences in professional and non-professional device fees, whether to provide an option to charge fees based on use of quote meter, or whether the current non-display use reporting will continue, will likewise have a material impact on the scope of services that the Administrator would be required to provide.
While the SROs will work expeditiously to complete the various steps outlined in Exhibit F, the timelines in Exhibit F are estimates based on the experience of the SROs and the current administrators. As a result, it is possible that the steps may take shorter or longer than estimated. Consequently, as set forth in Section 14.1, in the event a workstream listed in Exhibit F takes shorter or, due to factors outside the Operating Committee's reasonable control, takes longer than expected, the timelines for contingent steps shall be adjusted accordingly to account for such change. In such instances, the Operating Committee will include the adjustment in its written progress report to the Commission in accordance with Section 14.2. The SROs believe that such an approach is reasonable since although the timelines
For example, the proposed timeline for the Request for Proposal (“RFP”) process to select a new Administrator does not take into account the potential need for additional rounds of communications from bidders. It is not unusual in an RFP bidding process to have multiple rounds of communications from bidders. For example, the OPRA RFP process in 2019 was projected to take four months and ended up taking 14 months to provide time for the bidders to respond to questions from the OPRA Plan.
Additionally, the SROs have budgeted four months for negotiations with the selected administrator to execute a contract. While the SROs recognize that the key terms of the services to be provided will be part of the RFP process, the actual contract negotiations cannot begin until an administrator is selected. The SROs note that it took approximately ten months to negotiate a new contract with the UTP Processor following the 2014 RFP process. While the new Operating Committee will be committed to negotiate in good faith, the SROs cannot anticipate all possible outcomes when negotiating at arms-length with a third party. Such negotiations could be more streamlined than anticipated and take shorter than estimated or could be protracted due to disagreements between the Operating Committee and the new Administrator as to terms that might not be covered in the RFP process.
Further, the SROs have set what they consider to be an aggressive timeline for the Administrator to set up operations. Assuming the new Administrator commits to such a timeline (which will be one of the elements of the RFP), the SROs note that there are dependencies outside of the control of either the Operating Committee and the new Administrator. Specifically, all vendors will need to be onboarded to the new Administrator before the new CT Plan can begin operations. The SROs note that when the UTP Plan repapered its customers, the process took over twelve months. Currently, there are over 600 vendors that take CQ/CTA and UTP data, and all those vendors would need to be onboarded so that there will be no disruption in service of consolidated data. If all 600+ vendors quickly complete the onboarding process, the onboarding process could take shorter than estimated; however, a few vendors delaying their onboarding could extend the entire process if a material number of data subscribers would be impacted.
The above examples are non-exhaustive, and the SROs are unable to predict all issues that might arise in the implementation process. As a result, the SROs have included the ability to shorten or lengthen the timelines set forth in Exhibit F. In order to lengthen the timelines, the SROs have included a requirement that any decision to lengthen the timeline must be made by an affirmative vote of the Operating Committee pursuant to Section 4.3(b) and must be based on a reasonable determination that the timeline needs to be extended. Additionally, as stated above, the Operating Committee will include the adjustment in its written progress report to the Commission in accordance with Section 14.2.
Until the Operative Date, the SROs will continue to operate pursuant to the CQ Plan, CTA Plan, and UTP Plan with respect to the public dissemination of real-time consolidated equity market data for NMS stocks rather than the Plan.
The SROs believe the proposed Plan complies with the Amended Order. The proposed Plan incorporates the existing substantive provisions of the CTA Plan, CQ Plan and UTP Plan, which have been approved by the Commission, together with the governance modifications required by the Commission's Amended Order.
Not applicable.
Not applicable.
The Plan provides that any entity registered as a national securities exchange or national securities association under the Exchange Act may become a Member by: (i) providing written notice to the Company, (ii) executing a joinder to the Plan, at which time Exhibit A of the Plan shall be amended to reflect the addition of such exchange or association as a Member, (iii) paying a Membership Fee to the Company, and (iv) executing a joinder to any other agreements to which all of the other Members have been made party in connection with being a Member.
Not applicable.
Not applicable
The Plan does not include provisions regarding resolution of disputes between or among the Members.
The Commission seeks comment on the proposed CT Plan. Interested persons are invited to submit written data, views, and comments concerning the foregoing, including whether the proposal is consistent with the Act and the rules thereunder, as well as with the Amended Order. In addition to the specific questions set forth below, the Commission asks commenters to consider generally whether the proposed CT Plan is appropriately structured, and whether its provisions are appropriately drafted, to support the “prompt, accurate, reliable, and fair collection, processing, distribution, and publication of information with respect to quotations for and transactions in such securities and the fairness and usefulness of the form and content of such information.”
Accordingly, the Commission requests comments on matters including, but not limited to, the following:
1. Whether the proposed CT Plan is consistent with the Amended Order;
2. Whether, consistent with Rule 608 of Regulation NMS, the terms of the proposed CT Plan are necessary or appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanisms of, a national market system, or otherwise in furtherance of the purposes of the Act;
3. Whether modifications to the proposed CT Plan, or conditions to its approval, would be required to make the proposed plan necessary or appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanisms of, a national market system, or otherwise in furtherance of the purposes of the Act;
4. Whether the proposed CT Plan is consistent with Congress's finding, in section 11A(1)(C)(iii) of the Act, that it is in the public interest and appropriate for the protection of investors and the maintenance of fair and orderly markets to ensure “the availability to brokers, dealers, and investors of information with respect to quotations for and transactions in securities”;
5. Whether, consistent with the purposes of section 11A(c)(1)(B) of the Act,
6. Whether the proposed timeline for implementation of the proposed CT Plan is necessary or appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanisms of, a national market system, or otherwise in furtherance of the purposes of 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.
By the Commission.
(1) This LIMITED LIABILITY COMPANY AGREEMENT (this “
(a) On September 1, 2023, the Commission ordered the Members to act jointly in developing and filing with the Commission by October 23, 2023, a proposed new single national market system (“NMS”) plan to govern the public dissemination of real-time consolidated equity market data for NMS stocks.
(b) As the Members have already formed the Company as a limited liability company pursuant to the Delaware Act by filing a certificate of formation (the “Certificate”) with the Delaware Secretary of State, this Agreement will become effective on the date (the “Effective Date”) when approved by the Commission pursuant to Rule 608 of Regulation NMS as an NMS plan governing the public dissemination of real-time consolidated market data for Eligible Securities.
(c) It is understood and agreed that, in performing their obligations and duties under this Agreement, the Members are performing and discharging functions and responsibilities related to the operation of the national market system for and on behalf of the Members in their capacities as self-regulatory organizations, as required under the section 11A of the Exchange Act, and pursuant to Rule 603(b) of Regulation NMS thereunder. It is further understood and agreed that this Agreement and the operations of the Company shall be subject to ongoing oversight by the Commission. No provision of this Agreement shall be construed to limit or diminish the obligations and duties of the Members as self-regulatory organizations under the federal securities laws and the regulations thereunder.
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For purposes of this Agreement: (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. The definitions given for any defined terms in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine, and neuter forms. Unless the context otherwise requires, references herein: (x) to Articles, Sections, and Exhibits mean the Articles and Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document mean such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute mean such statute as amended from time to time and includes any successor legislation thereto and any rules and regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
(a) The Members formed the Company as a limited liability company on [•], [•] pursuant to the Delaware Act by filing a certificate of formation (the “
(b) This Agreement shall constitute the “limited liability company agreement” (as that term is used in the Delaware Act) of the Company. The rights, powers, duties, obligations, and liabilities of the Members shall be determined pursuant to the Delaware Act and this Agreement. To the extent
The name of the Company is “CT Plan LLC” and all Company business shall be conducted in that name or such other name or names as the Operating Committee may designate;
(a) The registered office of the Company required by the Delaware Act to be maintained in the State of Delaware shall be the office of the initial registered agent named in the Certificate or such other office (which need not be a place of business of the Company) as the Operating Committee may designate from time to time in the manner provided by the Delaware Act and Applicable Law.
(b) The registered agent for service of process of the Company in the State of Delaware shall be the initial registered agent named in the Certificate or such other Person or Persons as the Operating Committee may designate from time to time in the manner provided by the Delaware Act and Applicable Law.
(c) The principal office of the Company shall be located at such place as the Operating Committee may designate from time to time, which need not be in the State of Delaware, and the Company shall maintain its books and records there. The Company shall give prompt notice to each of the Members of any change to the principal office of the Company.
(d) The Company may have such other offices as the Operating Committee may designate from time to time.
(a) The purposes of the Company are to engage in the following activities on behalf of the Members:
(i) the collection, consolidation, and dissemination of Transaction Reports, Quotation Information, and such other information concerning Eligible Securities as the Members shall agree as provided herein;
(ii) contracting for the distribution of such information;
(iii) contracting for and maintaining facilities to support any activities permitted in this Agreement and guidelines adopted hereunder, including the operation and administration of the System;
(iv) providing for those other matters set forth in this Agreement and in all guidelines adopted hereunder;
(v) operating the System to comply with Applicable Laws; and
(vi) engaging in any other business or activity that now or hereafter may be necessary, incidental, proper, advisable, or convenient to accomplish any of the foregoing purposes and that is not prohibited by the Delaware Act, the Exchange Act, or other Applicable Law.
(b) The Company shall have all the powers necessary or convenient to carry out the purposes for which it is formed, including the powers granted by the Delaware Act.
(c) It is expressly understood that each Member shall be responsible for the collection of Transaction Reports and Quotation Information within its Market and that nothing in this Agreement shall be deemed to govern or apply to the manner in which each Member does so.
The term of the Company commenced as of the date the Certificate was filed with the Secretary of State of the State of Delaware, and shall continue in existence perpetually until the Company is dissolved in accordance with the provisions of the Certificate or this Agreement. Notwithstanding the foregoing, this Agreement shall not become effective until the Effective Date.
The Members intend that the Company not be a partnership (including a limited partnership) or joint venture, and that no Member be a partner or joint venturer of any other Member by virtue of this Agreement for any purposes other than as set forth in Sections 10.2 and 10.3, and neither this Agreement nor any other document entered into by the Company or any Member relating to the subject matter of this Agreement shall be construed to suggest otherwise.
The Members of the Company shall consist of the Persons identified in
(a) Any national securities association or national securities exchange whose market, facilities, or members, as applicable, trades Eligible Securities may become a Member by (i) providing written notice to the Company, (ii) executing a joinder to this Agreement, at which time
(b) The Membership Fee shall be based upon the following factors:
(i) the portion of costs previously paid by the Company (or by the Members prior to the formation of the Company) for the development, expansion, and maintenance of the System which, under GAAP, would have been treated as capital expenditures and would have been amortized over the five years preceding the admission of the new Member (and for this purpose all such capital expenditures shall be deemed to have a five-year amortizable life); and
(ii) an assessment of costs incurred and to be incurred by the Company for modifying the System or any part thereof to accommodate the new Member, which are not otherwise required to be paid or reimbursed by the new Member.
(c) Participants of the CQ Plan, CTA Plan, and UTP Plan will not be required to pay the Membership Fee.
Except as set forth in Section 3.4, a Member shall not have the right to Transfer (whether in whole or in part) its Membership Interest in the Company.
(a) Any Member may voluntarily withdraw from the Company at any time on not less than 30 days' prior written notice (the “Withdrawal Date”), by (i) providing such notice of such withdrawal to the Company, (ii) causing the Company to file with the Commission an amendment to effectuate the withdrawal and (iii) Transferring such Member's Membership Interest to the Company.
(b) A Member shall automatically be withdrawn from the Company upon
(c) A withdrawal of a Member shall not be effective until approved by the Commission after filing an amendment to the Agreement in accordance with Section 13.5.
(d) From and after the Withdrawal Date of such Member:
(i) Such Member shall remain liable for any obligations under this Agreement of such Member (including indemnification obligations) arising prior to the Withdrawal Date (but such Member shall have no further obligations under this Agreement or to any of the other Members arising after the Withdrawal Date);
(ii) Such Member shall be entitled to receive a portion of the Net Distributable Operating Income (if any) in accordance with
(iii) Such Member shall cease to have the right to have its Transaction Reports, Quotation Information, or other information disseminated over the System; and
(iv) Profits and losses of the Company shall cease to be allocated to the Capital Account of such Member.
In the event a Member becomes subject to one or more of the events of bankruptcy enumerated in Section 18-304 of the Delaware Act, that event by itself shall not cause a withdrawal of such Member from the Company so long as such Member continues to be a national securities association or national securities exchange.
Following the Operative Date, each Member shall be required, pursuant to Rule 608(c) of Regulation NMS, to comply with the provisions hereof and enforce compliance by its members with the provisions hereof.
(a) Except as otherwise provided in this Agreement or Applicable Law, no Member shall be obligated to contribute capital or make loans to the Company.
(b) Except as provided in this Agreement or Applicable Law, no Member shall have any liability whatsoever in its capacity as a Member, whether to the Company, to any of the Members, to the creditors of the Company or to any other Person, for the debts, liabilities, commitments or any other obligations of the Company or for any losses of the Company. Notwithstanding the foregoing, to the extent that amounts have not been paid to the Processors or Administrator under the terms of the Processor Services Agreements and Administrative Services Agreement, respectively, or this Agreement, as and when due, (i) each Member shall be obligated to return to the Company its pro rata share of any moneys distributed to such Member in the one year period prior to such default in payment (such pro rata share to be based upon such Member's proportionate receipt of the aggregate distributions made to all Members in such one year period) until an aggregate amount equal to the amount of any such defaulted payments has been re-contributed to the Company and (ii) the Company shall promptly pay such amount to the Processors or Administrator, as applicable.
(c) In accordance with the Delaware Act, a member of a limited liability company may, under certain circumstances, be required to return amounts previously distributed to such member. It is the intent of the Members that no distribution to any Member pursuant to this Agreement shall be deemed a return of money or other property paid or distributed in violation of the Delaware Act. The payment of any such money or distribution of any such property to a Member shall be deemed to be a compromise within the meaning of the Delaware Act, and the Member receiving any such money or property shall not be required to return any such money or property to any Person;
(d) No Member (unless duly authorized by the Operating Committee) has the authority or power to represent, act for, sign for or bind the Company or to make any expenditure on behalf of the Company;
(e) To the fullest extent permitted by law, no Member shall, in its capacity as a Member, owe any duty (fiduciary or otherwise) to the Company or to any other Member other than the duties expressly set forth in this Agreement.
(f) Except for situations in which the approval of the Members is required by this Agreement, the Company shall be managed by the Operating Committee. Unless otherwise expressly provided to the contrary in this Agreement, no Member shall have authority to act for, or to assume any obligation or responsibility on behalf of, the Company, without the prior approval of the Operating Committee. Without limiting the generality of the foregoing and except as otherwise expressly provided in this Agreement, the Operating Committee shall have full and complete discretion to manage and control the business and affairs of the Company, to make all decisions affecting the business and affairs of the Company, and to take all such actions as it deems necessary or appropriate to accomplish the purposes of the Company, including the following:
(i) proposing amendments to this Agreement or implementing other policies and procedures as necessary to ensure prompt, accurate, reliable, and fair collection, processing, distribution, and publication of information with respect to Transaction Reports and Quotation Information in Eligible Securities and the fairness and usefulness of the form and content of that information;
(ii) selecting, overseeing, specifying the role and responsibilities of, and evaluating the performance of, the Administrator, the Processors, an auditor, and other professional service providers, provided that any expenditures for professional services that are paid for from the Company's revenues must be for activities consistent with the terms of this Agreement and must be authorized by the Operating Committee;
(iii) developing and maintaining fair and reasonable Fees and consistent terms for the distribution, transmission, and aggregation of Transaction Reports and Quotation Information in Eligible Securities;
(iv) reviewing the performance of the Processors and ensuring the public reporting of Processors' performance and other metrics and information about the Processors;
(v) assessing the marketplace for equity market data products and ensuring that the CT Feeds are priced in a manner that is fair and reasonable, and designed to ensure the widespread availability of CT Feeds data to investors and market participants;
(vi) designing a fair and reasonable revenue allocation formula for allocating plan revenues to be applied by the Administrator, and overseeing, reviewing, and revising that formula as needed;
(vii) interpreting the Agreement and its provisions; and
(viii) carrying out such other specific responsibilities as provided under this Agreement.
(g) The Operating Committee may delegate all or part of its administrative functions under this Agreement, excluding those administrative functions to be performed by the Administrator pursuant to Section 6.1, to a subcommittee, to one or more of the Members, or to other Persons (including the Administrator), and any Person to which administrative functions are so delegated shall perform the same as agent for the Company, in the name of the Company. For the avoidance of doubt, no delegation to a subcommittee shall contravene Section 4.3 and no subcommittee shall take actions requiring approval of the Operating Committee pursuant to Section 4.3 unless such approval shall have been obtained. Any authority delegated hereunder is subject to the provisions of Section 4.3 hereof.
(h) It is expressly agreed and understood that neither the Company nor the Operating Committee shall have authority in any respect of any Member's proprietary systems. Neither the Company nor the Operating Committee shall have any authority over the collection and dissemination of quotation or transaction information in Eligible Securities in any Member's Market, or, in the case of FINRA, from FINRA Participants.
(a)
(b) An SRO Applicant will be permitted to appoint one individual to attend (subject to Section 4.4(i)) regularly scheduled Operating Committee meetings in the capacity of a non-voting observer (each, an “
(c) Notwithstanding anything to the contrary herein, (i) a national securities exchange that has ceased operations as a Market (or has yet to commence operation as a Market) and that is a Non-Affiliated SRO will not be permitted to designate a Voting Representative and (ii) an SRO Group in which all national securities exchanges have ceased operations as a Market (or have yet to commence operation as a Market) will not be permitted to designate a Voting Representative. Such SRO Group or Non-Affiliated SRO may attend the Operating Committee as an observer but may not attend the Executive Session of the Operating Committee. In the event such an SRO Group or Non-Affiliated SRO does not commence operation as a Market for six months after first attending an Operating Committee meeting, such SRO Group or Non-Affiliated SRO may no longer attend the Operating Committee until it commences/re-commences operation as a Market.
(a) Each Voting Representative shall be authorized to cast one vote on behalf of the SRO Group or Non-Affiliated SRO that he or she represents,
(b) All actions of the Operating Committee will require an affirmative vote of not less than (2/3rd) two-thirds of all votes allocated in the manner described in Section 4.3(a) to Voting Representatives who are eligible to vote on such action.
(c) Notwithstanding Section 4.3(b), the following actions will require only a majority vote of the Operating Committee:
(i) the selection of members of the Advisory Committee pursuant to Section 4.7;
(ii) the decision to enter Executive Session pursuant to Section 4.4(g), except for matters considered pursuant to Section 4.4(g)(i)(E);
(iii) the decision to discuss a matter in a legal subcommittee pursuant to Section 4.8(d); and
(iv) decisions concerning the operation of the Company as an LLC as specified in Section 10.3 and Section 11.2.
(a) Subject to Section 4.4(g), meetings of the Operating Committee may be attended by each Voting Representative, Member Observers, SRO Applicant Observers, Advisory Committee members, SEC staff, and other persons as deemed appropriate by the Operating Committee. Meetings shall be held at such times and locations as shall from time to time be determined by the Operating Committee. Member Observers shall be entitled to attend and participate in any discussion at any such meeting, unless attendance or participation would be inconsistent with the provisions of Section 4.11(b), but shall not be entitled to vote on any matter.
(b) Special meetings of the Operating Committee may be called by the Chair on at least 24 hours' notice to each Voting Representative and all persons eligible to attend Operating Committee meetings.
(c) Any action requiring a vote can be taken at a meeting only if a quorum of all Voting Representatives is present. A quorum is equal to the minimum votes necessary to obtain approval under Section 4.3(b),
(i) Any Voting Representative recused from voting on a particular action (i) mandatorily pursuant to Section 4.10(b) or (ii) upon a Voting Representative's voluntary recusal, shall not be considered in the numerator or denominator of the calculations in paragraph (c) for determining whether a quorum is present.
(ii) A Voting Representative is considered present at a meeting only if such Voting Representative is either in physical attendance at the meeting or participating by conference telephone or other electronic means that enables each Voting Representative to hear and be heard by all others present at the meeting.
(d) A summary of any action sought to be resolved at a meeting shall be sent to each Voting Representative entitled to vote on such matter at least one week prior to the meeting via electronic mail, portal notification, or regular U.S. or private mail (or if one week is not practicable, then with as much time as may be reasonably practicable under the circumstances);
(e) Beginning with the first quarterly meeting of the Operating Committee following the Operative Date, the Chair of the Operating Committee shall be elected for a one-year term from the constituent Voting Representatives (and an election for the Chair shall be held every year). Subject to the requirements of Section 4.3 hereof, the Chair shall have the authority to enter into contracts on behalf of the Company and otherwise bind the Company, but only as directed by the Operating Committee. The Chair shall designate a Person to act as Secretary to record the minutes of each meeting. The location of meetings shall be in a location capable of holding the number of attendees of such meetings, or such other locations as may from time to time be determined by the Operating Committee.
(i) To elect a Chair, the Operating Committee will elicit nominations for those individuals to be considered for Chair.
(ii) In the event that no nominated Person is elected by an affirmative vote of the Operating Committee pursuant to Section 4.3, the Person(s) with the lowest number of votes will be eliminated from consideration. The Operating Committee will repeat this process until a Person is elected by affirmative vote of the Operating Committee pursuant to Section 4.3. In the event two candidates remain and neither is elected by an affirmative vote of the Operating Committee pursuant to Section 4.3, the Person receiving the most votes from Voting Representatives will be elected.
(f) Meetings may be held by conference telephone or other electronic means that enables each Voting Representative to hear and be heard by all others present at the meeting.
(g) Voting Representatives, Member Observers, SEC Staff, and other persons as deemed appropriate by a majority vote of the Voting Representatives may meet in Executive Session of the Operating Committee to discuss an item of business that falls within the topics identified in subsection (i) below and for which it is appropriate to exclude the Advisory Committee. A request to create an Executive Session must be included on the written agenda for an Operating Committee meeting, along with the clearly stated rationale as to why such item to be discussed would be appropriate for Executive Session. The creation of an Executive Session will be by a majority vote of Voting Representatives with votes allocated pursuant to Section 4.3(a)(1). The Executive Session shall only discuss the topic for which it was created and shall be disbanded upon fully discussing the topic.
(i) Items for discussion within an Executive Session should be limited to the following topics as:
(A) Any topic that requires discussion of Highly Confidential Information;
(B) Vendor or Subscriber Audit Findings;
(C) Litigation matters;
(D) Responses to regulators with respect to inquiries, examinations, or findings; and
(E) Other discrete matters approved by the Operating Committee.
(ii) The mere fact that a topic is controversial or a matter of dispute does not, by itself, make a topic appropriate for Executive Session. The minutes for an Executive Session shall include the reason for including any item in Executive Session.
(iii) Requests to discuss a topic in Executive Session must be included on the written agenda for the Operating Committee meeting, along with the clearly stated rationale for each topic as to why such discussion is appropriate for Executive Session. Such rationale may be that the topic to be discussed falls within the list provided in subparagraph (g)(i).
The fact that a Member or any of its Affiliates is directly or indirectly interested in or connected with any Person employed by the Company to render or perform a service, or from which or to whom the Company may buy or sell any property, shall not prohibit the Company from employing or dealing with such Person.
(a) Each Member, its Affiliates, and each of their respective equity holders, controlling persons and employees may have business interests and engage in business activities in addition to those relating to the Company. Neither the Company nor any Member shall have any rights by virtue of this Agreement in any business ventures of any such Person.
(b) Each Member expressly acknowledges that (i) the other Members are permitted to have, and may presently or in the future have, investments or other business relationships with Persons engaged in the business of the Company other than through the Company (an “
(a)
(b)
(i) Operating Committee Selections. By affirmative vote of a majority of the Members entitled to vote, the Operating Committee shall select at least one representative from each of the following categories to be members of the Advisory Committee: (A) an institutional investor; (B) a broker-dealer with a predominantly retail investor customer base; (C) a broker-dealer with a predominantly institutional investor customer base; (D) a securities market data vendor that is not affiliated or associated with a Member, broker-dealer, or investment adviser with third-party clients; (E) an issuer of NMS stock that is not affiliated or associated with a Member, broker-dealer, or investment adviser with third-party clients; and (F) a Retail Representative. The Operating Committee shall not select any person employed by or affiliated with any Member or its affiliates or facilities.
(ii) Member Selections. Each Member shall have the right to select one member of the Advisory Committee. A Member shall not select any person employed by or affiliated with any Member or its affiliates or facilities.
(c)
(d)
(a) Subject to Section 4.1, the Operating Committee shall have the power and right, but not the obligation, to create and disband subcommittees of the Operating Committee and to determine the duties, responsibilities, powers, and composition of such subcommittees. Subcommittee chairs will be selected by the Operating Committee from Voting Representatives. Notwithstanding the foregoing, the Operating Committee may not delegate to a subcommittee those administrative functions to be performed by the Administrator.
(b) Except as provided in Section 4.8(d), the Secretary or designee shall prepare minutes of all subcommittee meetings and such minutes will be made available to the Operating Committee and members of the Advisory Committee.
(c) Voting Representatives, the Advisory Committee, Member Observers, SEC Staff, and other persons as deemed appropriate by the Operating Committee may attend meetings of any subcommittees.
(d) Notwithstanding paragraph (c), Voting Representatives, Member Observers, and other persons as deemed appropriate by majority vote of the Voting Representatives may meet in a subcommittee to discuss an item that exclusively affects the Members with respect to: (1) litigation matters or responses to regulators with respect to inquiries, examinations, or findings; and (2) other discrete legal matters approved by the Operating Committee. The Secretary shall prepare the minutes of such subcommittee's meetings, and such minutes shall include, (i) attendance at the meeting; (ii) the subject matter of each item discussed; (iii) sufficient non-privileged information to identify the rationale for referring the matter to the legal subcommittee, and (iv) the privilege or privileges claimed with respect to that item. Such minutes will be made available only to the Voting Representatives, Member Observers, and other persons deemed appropriate by a majority vote of the Operating Committee.
(a) Except as provided in Section 4.4(e), the Operating Committee may (but need not), from time to time, designate and appoint one or more persons as an Officer of the Company. Other than the Chair, no Officer need be a Voting Representative. Any Officers so designated shall have such authority and perform such duties as the Operating Committee may, from time to time, delegate to them. Any such delegation may be revoked at any time by the Operating Committee. The Operating Committee may assign titles to particular Officers. Each Officer shall hold office until such Officer's successor shall be duly designated or until such Officer's death, resignation, or removal as provided in this Agreement. Any number of offices may be held by the same individual. Officers shall not be entitled to receive salary or other compensation, unless approved by the Operating Committee.
(b) Any Officer may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified in the notice, or if no time be specified, at the time of its receipt by the Operating Committee. The acceptance of a resignation shall not be necessary to make it effective.
(c) Any Officer may be removed at any time upon the majority vote of the Members.
Nothing in this Agreement shall be interpreted to limit or impede the rights of the Commission or SEC staff to access information and records of the Company or any of the Members (including their employees) pursuant to U.S. federal securities laws and the rules and regulations promulgated thereunder.
(a)
(i) A potential conflict of interest may exist when personal, business, financial,
(ii) Updates to Disclosures. Following a material change in the information disclosed pursuant to Section 4.11(a), a Disclosing Party shall promptly update its disclosures. Additionally, a Disclosing Party shall update annually any inaccurate information prior to the Operating Committee's first quarterly meeting of a calendar year.
(iii) Public Dissemination of Disclosures. The Disclosing Parties shall provide the Administrator with its disclosures and any required updates. The Administrator shall ensure that the disclosures are promptly posted to the Company's website.
(iv) The Company will arrange for Disclosing Parties that are not Members or members of the Advisory Committee to comply with the required disclosures and recusals under this Section 4.11 and
(b) Recusal.
(i) A Disclosing Party that is a Member may not appoint as its Voting Representative, alternate Voting Representative, or a Member Observer a person that is responsible for or involved with the procurement for, or development, modeling, pricing, licensing (including all functions related to monitoring or ensuring a subscriber's compliance with the terms of the license contained in its data subscription agreement and all functions relating to the auditing of subscriber data usage and payment), or sale of PDP offered to customers of the CT Feeds if the person has a financial interest (including compensation) that is tied directly to the Disclosing Party's market data business or the procurement of market data and if that compensation would cause a reasonable objective observer to expect the compensation to affect the impartiality of the representative.
(ii) A Disclosing Party (including its representative(s), employees, and agents) will be recused from participating in Company activities if it has not submitted a required disclosure form or the Operating Committee votes that its disclosure form is materially deficient. The recusal will be in effect until the Disclosing Party submits a sufficiently complete disclosure form to the Administrator.
(iii) A Disclosing Party, including its representative(s), and its Affiliates and their representative(s), are recused from voting on matters in which it or its Affiliate (i) is seeking a position or contract with the Company or (ii) have a position or contract with the Company and whose performance is being evaluated by the Company.
(iv) All recusals, including a person's determination of whether to voluntarily recuse himself or herself, shall be reflected in the meeting minutes.
(c)
All Covered Persons are subject to the Confidentiality Policy set forth in
Subject to the general direction of the Operating Committee, as more fully set forth in the agreement to be entered into between the Company and the Processors (the “
The Processors' performance of their functions under the Processor Services Agreements shall be subject to review at any time as determined by a vote of the Operating Committee pursuant to Section 4.3;
(a) No later than upon the termination or withdrawal of a Processor or the expiration of a Processor Services Agreement with a Processor, the Operating Committee shall establish procedures for selecting a new Processor (the “
(b) The Processor Selection Procedures shall be established by the affirmative vote of the Operating Committee pursuant to Section 4.3, and shall set forth, at a minimum:
(i) the entity that will:
(A) draft the Operating Committee's request for proposal for bids on a new Processor;
(B) assist the Operating Committee in evaluating bids for the new Processor; and
(C) otherwise provide assistance and guidance to the Operating Committee in the selection process;
(ii) the minimum technical and operational requirements to be fulfilled by the Processor;
(iii) the criteria to be considered in selecting the Processor; and
(iv) the entities (other than Voting Representatives) that are eligible to comment on the selection of the Processor.
(a) Quotation Information.
(i) Each Member shall, during the time it is open for trading, be responsible for promptly collecting and transmitting to the Processors accurate Quotation Information in Eligible Securities through any means set forth in the Processor Services Agreements to
(ii) Quotation Information shall include:
(A) identification of the Eligible Security, using the Listing Market's symbol;
(B) the price bid and offered, together with size;
(C) for FINRA, the FINRA Participant along with the FINRA Participant's market participant identification or Member from which the quotation emanates;
(D) appropriate timestamps;
(E) identification of quotations that are not firm; and
(F) through appropriate codes and messages, withdrawals and similar matters.
(iii) In addition, Quotation Information shall include:
(A) in the case of a national securities exchange, the reporting Member's matching engine publication timestamp; or
(B) in the case of FINRA, the quotation publication timestamp that FINRA's bidding or offering member reports to FINRA's quotation facility in accordance with FINRA rules. In addition, if FINRA's quotation facility provides a proprietary feed of its quotation information, then the quotation facility shall also furnish the Processors with the time of the quotation as published on the quotation facility's proprietary feed. FINRA shall convert any quotation times reported to it to nanoseconds and shall furnish such times to the Processors in nanoseconds since Epoch.
(h) Transaction Reports.
(i) Each Member shall, during the time it is open for trading, be responsible for promptly transmitting to the Processor Transaction Reports in Eligible Securities executed in its Market by means set forth in the Processor Services Agreements.
(ii) Transaction Reports shall include:
(A) identification of the Eligible Security, using the Listing Market's symbol;
(B) the number of shares in the transaction;
(C) the price at which the shares were purchased or sold;
(D) the buy/sell/cross indicator;
(E) appropriate timestamps;
(F) the Market of execution; and
(G) through appropriate codes and messages, late or out-of-sequence trades, corrections, and similar matters.
(iii) In addition, Transaction Reports shall include the time of the transaction as identified in the Member's matching engine publication timestamp. However, in the case of FINRA, the time of the transaction shall be the time of execution that a FINRA member reports to a FINRA trade reporting facility in accordance with FINRA rules. In addition, if the FINRA trade reporting facility provides a proprietary feed of trades reported by the trade reporting facility to the Processor, then the FINRA trade reporting facility shall also furnish the Processors with the time of the transmission as published on the facility's proprietary feed. The FINRA trade reporting facility shall convert times that its members report to it to nanoseconds and shall furnish such times to the Processors in nanoseconds since Epoch.
(iv) Each Member shall (a) transmit all Transaction Reports in Eligible Securities to the Processors as soon as practicable, but not later than 10 seconds, after the time of execution, (b) establish and maintain collection and reporting procedures and facilities reasonably designed to comply with this requirement, and (c) designate as “late” any last sale price not collected and reported in accordance with the above-referenced procedures or as to which the Member has knowledge that the time interval after the time of execution is significantly greater than the time period referred to above. The Members shall seek to reduce the time period for reporting last sale prices to the Processors as conditions warrant.
(v) The following types of transactions are not required to be reported to the Processors pursuant to this Agreement:
(A) transactions that are part of a primary distribution by an issuer or of a registered secondary distribution or of an unregistered secondary distribution;
(B) transactions made in reliance on section 4(a)(2) of the Securities Act of 1933;
(C) transactions in which the buyer and the seller have agreed to trade at a price unrelated to the current market for the security (
(D) the acquisition of securities by a broker-dealer as principal in anticipation of making an immediate exchange distribution or exchange offering on an exchange;
(E) purchases of securities pursuant to a tender offer;
(F) purchases or sales of securities effected upon the exercise of an option pursuant to the terms thereof or the exercise of any other right to acquire securities at a pre-established consideration unrelated to the current market; and
(G) transfers of securities that are expressly excluded from trade reporting under FINRA rules.
(c) The following symbols shall be used to denote the applicable Member:
(d) Indemnification.
(i) Each Member agrees, severally and not jointly, to indemnify and hold harmless and defend the Company, each other Member, the Processors, the Administrator, the Operating Committee, and each of their respective directors, officers, employees, agents, and Affiliates (each, an “
(ii) Promptly after receipt by a Member Indemnified Party of notice of the commencement of any action, such Member Indemnified Party will, if it intends to make a claim in respect thereof against an indemnifying Member, notify the indemnifying Member in writing of the commencement thereof;
(a) Each Member shall be responsible for collecting and validating quotes and last sale reports within its own system prior to transmitting this data to the Processors.
(b) Each Member may utilize a dedicated Member line into the Processors to transmit Transaction Reports and Quotation Information to the Processors.
(c) Whenever a Member determines that a level of trading activity or other unusual market conditions prevent it from collecting and transmitting Transaction Reports or Quotation Information to the Processor, or where a trading halt or suspension in an Eligible Security is in effect in its Market, the Member shall promptly notify the Processors of such condition or event and shall resume collecting and transmitting Transaction Reports and Quotation Information to it as soon as the condition or event is terminated. In the event of a system malfunction resulting in the inability of a Member or its members to transmit Transaction Reports or Quotation Information to the Processors, the Member shall promptly notify the Processors of such event or condition. Upon receiving such notification, the Processors shall take appropriate action, including either closing the quotation or purging the system of the affected quotations.
Subject to the general direction of the Operating Committee, as more fully set forth in the agreement entered into between the Company and the Administrator (the “
The Administrator may not be owned or controlled by a corporate entity that, either directly or via another subsidiary, offers for sale its own PDP.
The Administrator's performance of its functions under the Administrative Services Agreement shall be subject to review at any time as determined by an affirmative vote of the Operating Committee pursuant to Section 4.3;
Prior to the Operative Date, upon the termination or withdrawal of the Administrator, or upon the expiration of the Administrative Services Agreement, the Operating Committee shall establish procedures for selecting a new Administrator (the “Administrator Selection Procedures”). The Operating Committee, as part of the process of establishing Administrator Selection Procedures, may solicit and consider the timely comment of any entity affected by the operation of this Agreement. The Administrator Selection Procedures shall be established by the Operating Committee pursuant to Section 4.3, and shall set forth, at a minimum:
(a) the entity that will:
(i) draft the Operating Committee's request for proposal for bids on a new Administrator;
(ii) assist the Operating Committee in evaluating bids for the new Administrator; and
(iii) otherwise provide assistance and guidance to the Operating Committee in the selection process.
(b) the minimum technical and operational requirements to be fulfilled by the Administrator;
(c) the criteria to be considered in selecting the Administrator; and
(d) the entities (other than Voting Representatives) that are eligible to comment on the selection of the Administrator.
(a) Operational Halts. A Member shall notify the Processors if it has concerns about its ability to collect and transmit quotes, orders, or last sale prices, or where it has declared an Operational Halt or suspension of trading in one or more Eligible Securities, pursuant to the procedures adopted by the Operating Committee.
(b) Regulatory Halts.
(i) The Primary Listing Market may declare a Regulatory Halt in trading for
(A) as provided for in the rules of the Primary Listing Market;
(B) if it determines there is a SIP Outage, Material SIP Latency, or Extraordinary Market Activity; or
(C) in the event of national, regional, or localized disruption that necessitates a Regulatory Halt to maintain a fair and orderly market.
(ii) In making a determination to declare a Regulatory Halt under subparagraph (b)(i), the Primary Listing Market will consider the totality of information available concerning the severity of the issue, its likely duration, and potential impact on Member Firms and other market participants and will make a good-faith determination that the criteria of subparagraph (b)(i) have been satisfied and that a Regulatory Halt is appropriate. The Primary Listing Market will consult, if feasible, with the affected Trading Center(s), the other Members, or the Processors, as applicable, regarding the scope of the issue and what steps are being taken to address the issue. Once a Regulatory Halt under subparagraph (b)(i) has been declared, the Primary Listing Market will continue to evaluate the circumstances to determine when trading may resume in accordance with the rules of the Primary Listing Market.
(c) Initiating a Regulatory Halt.
(i) The start time of a Regulatory Halt is when the Primary Listing Market declares the halt, regardless of whether an issue with communications impacts the dissemination of the notice.
(ii) If a Processor is unable to disseminate notice of a Regulatory Halt or the Primary Listing Market is not open for trading, the Primary Listing Market will take reasonable steps to provide notice of a Regulatory Halt, which shall include both the type and start time of the Regulatory Halt, by dissemination through:
(A) PDP;
(B) posting on a publicly-available Member website;
(C) system status messages; or
(D) a notification via an alternate Processor, if available.
(iii) Except in exigent circumstances, the Primary Listing Market will not declare a Regulatory Halt retroactive to a time earlier than the notice of such halt.
(iv) Resumption of Trading After Regulatory Halts Other Than SIP Halts. The Primary Listing Market will declare a resumption of trading when it makes a good-faith determination that trading may resume in a fair and orderly manner and in accordance with its rules.
(v) For a Regulatory Halt that is initiated by another Member that is a Primary Listing Market, a Member may resume trading after the Member receives notification from the Primary Listing Market that the Regulatory Halt has been terminated.
(d) Resumption of Trading After SIP Halt.
(i) The Primary Listing Market will determine the SIP Halt Resume Time. In making such determination, the Primary Listing Market will make a good-faith determination and consider the totality of information to determine whether resuming trading would promote a fair and orderly market, including input from the Processors, the other Members, or the operator of the system in question (as well as any Trading Center(s) to which such system is linked), regarding operational readiness to resume trading. The Primary Listing Market retains discretion to delay the SIP Halt Resume Time if it believes trading will not resume in a fair and orderly manner.
(ii) The Primary Listing Market will terminate a SIP Halt with a notification that specifies a SIP Halt Resume Time. The Primary Listing Market shall provide a minimum notice of a SIP Halt Resume Time, as specified by the rules of the Primary Listing Market, during which period market participants may enter quotes and orders in the affected securities. During Regular Trading Hours, the last SIP Halt Resume Time before the end of Regular Trading Hours shall be an amount of time as specified by the rules of the Primary Listing Market. The Primary Listing Market may stagger the SIP Halt Resume Times for multiple symbols in order to reopen in a fair and orderly manner.
(iii) During Regular Trading Hours, if the Primary Listing Market does not open a security within the amount of time as specified by the rules of the Primary Listing Market after the SIP Halt Resume Time, a Member may resume trading in that security. Outside Regular Trading Hours, a Member may resume trading immediately after the SIP Halt Resume Time.
(e) Member to Halt Trading During Regulatory Halt. A Member will halt trading for any security traded on its Market if the Primary Listing Market declares a Regulatory Halt for the security.
(f) Communications. Whenever, in the exercise of its regulatory functions, the Primary Listing Market for an Eligible Security determines it is appropriate to initiate a Regulatory Halt, the Primary Listing Market will notify all other Members and the affected Processors of such Regulatory Halt as well as provide notice that a Regulatory Halt has been lifted using such protocols and other emergency procedures as may be mutually agreed to between the Members and the Primary Listing Market. The affected Processors shall disseminate to Members notice of the Regulatory Halt (as well as notice of the lifting of a Regulatory Halt) (i) through the CT Feeds or (ii) any other means the affected Processors, in its sole discretion, considers appropriate. Each Member shall be required to continuously monitor these communication protocols established by the Operating Committee and the Processors during market hours, and the failure of a Member to do so shall not prevent the Primary Listing Market from initiating a Regulatory Halt in accordance with the procedures specified herein.
(a) Quotation Information shall be entered, as applicable, by Members as to all Eligible Securities in which they make a market during Regular Trading Hours on all days the Processors are in operation. Transaction Reports shall be entered for executions that occur from 9:30 a.m. until 4:00:00 p.m. ET by Members as to all Eligible Securities in which they execute transactions during Regular Trading Hours on all days the Processors are in operation.
(b) Members that execute transactions in Eligible Securities outside of Regular Trading Hours, shall report such transactions as follows:
(i) transactions in Eligible Securities executed from 4:00 a.m. up to 9:30:00 a.m. ET (or as otherwise designated by a Member as an execution occurring outside of Regular Trading Hours) and after 4:00:00 p.m. until 8:00 p.m. ET, shall be designated with an appropriate indicator to denote their execution outside normal market hours;
(ii) transactions in Eligible Securities executed after 8:00 p.m. and before 12:00 a.m. (midnight) shall be reported to the Processors between the hours of 4:00 a.m. and 8:00 p.m. ET on the next business day (T+1), and shall be designated “as/of” trades to denote their execution on a prior day, and be accompanied by the time of execution;
(iii) transactions in Eligible Securities executed between 12:00 a.m. (midnight) and 4:00 a.m. ET shall be transmitted to the Processors between 4:00 a.m. and 9:30 a.m. ET, on trade date, shall be designated with an appropriate indicator to denote their execution outside normal market hours, and shall be accompanied by the time of execution; and
(iv) transactions reported pursuant to this Section 7.3 shall be included in the calculation of total trade volume for purposes of determining Net Distributable Operating Revenue, but shall not be included in the calculation of the daily high, low, or last sale.
(c) Late trades shall be reported in accordance with the rules of the Member in whose Market the transaction occurred and can be reported between the hours of 4:00 a.m. and 8:00 p.m. ET.
(d) The Processors shall collect, process and disseminate Quotation Information in Eligible Securities at other times between 4:00 a.m. and 9:30 a.m. ET, and after 4:00 p.m. ET, when any Member or FINRA Participant is open for trading, until 8:00 p.m. ET (the “
(a) A separate capital account (“
(b) The fair market value of contributed, distributed, or revalued property shall be agreed to by the Operating Committee or, if there is no such agreement, by an appraisal.
(c) The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulation section 1.704-1(b) promulgated under section 704(b) of the Code, and shall be interpreted and applied in a manner consistent with such Treasury Regulations.
Except with the approval of the Operating Committee or as otherwise provided in this Section 8.2, no Member shall be obligated or permitted to make any additional contribution to the capital of the Company. The Members agree to make additional Capital Contributions from time to time as appropriate in respect of reasonable administrative and other reasonable expenses of the Company.
Except as set forth in this Section 8.3 and Section 11.2, and subject to the provisions of Section 13.1, Distributions shall be made to the Members at the times and in the aggregate amounts set forth in
To the fullest extent permitted by Applicable Law, the profits and losses of the Company shall be determined for each fiscal year in a manner consistent with GAAP.
(a) Except as otherwise set forth in this Section 9.2, for Capital Account purposes, all items of income, gain, loss, and deduction shall be allocated among the Members in accordance with
(b) For federal, state and local income tax purposes, items of income, gain, loss, deduction, and credit shall be allocated to the Members in accordance with the allocations of the corresponding items for Capital Account purposes under this Section 9.2, except that items with respect to which there is a difference between tax and book basis will be allocated in accordance with Section 704(c) of the Code, the Treasury Regulations thereunder and Treasury Regulations Section 1.704-1(b)(4)(i).
(c) Notwithstanding any provision set forth in this Section 9.2, no item of deduction or loss shall be allocated to a Member to the extent the allocation would cause a negative balance in such Member's Capital Account (after taking into account the adjustments, allocations and distributions described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6)) that exceeds the amount that such Member would be required to reimburse the Company pursuant to this Agreement or Applicable Law.
(d) In the event any Member unexpectedly receives any adjustments, allocations, or distributions described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6), items of the Company's income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate as quickly as possible any deficit balance in its Capital Account created by such adjustments, allocations or distributions in excess of that permitted under Section 9.2(c). Any special allocations of items of income or gain pursuant to this Section 9.2(d) shall be taken into account in computing subsequent allocations pursuant to this Section 9.2 so that the net amount of any items so allocated and all other items allocated to each Member pursuant to this Section 9.2 shall, to the extent possible, be equal to the net
(a) The Operating Committee shall maintain a system of accounting which enables the Company to produce accounting records and information substantially consistent with GAAP. The Fiscal Year of the Company shall be the calendar year unless Applicable Law requires a different Fiscal Year.
(b) All matters concerning accounting procedures shall be determined by the Operating Committee.
(a) It is the intent of this Company and the Members that this Company shall be treated as a partnership for federal, state and local income tax purposes. Neither the Company nor any Member shall make an election for the Company to be classified as other than a partnership pursuant to Treasury Regulations Section 301.7701-3 or otherwise.
(b) The Company shall cause federal, state, and local income tax returns for the Company to be prepared and timely filed with the appropriate authorities and shall arrange for the timely delivery to the Members of such information as is necessary for such Members to prepare their federal, state and local tax returns. All tax returns shall be prepared in a manner consistent with the Distributions made in accordance with
(a) The Operating Committee shall appoint an entity as the “Partnership Representative” of the Company for purposes of Section 6223 of the Code and the Treasury Regulations promulgated thereunder, and all federal, state, and local Tax audits and litigation shall be conducted under the direction of the Partnership Representative.
(b) The Partnership Representative shall use reasonable efforts to inform each Member of all significant matters that may come to its attention by giving notice thereof and to forward to each Member copies of all significant written communications it may receive in such capacity. The Partnership Representative shall consult with the Members before taking any material actions with respect to tax matters, including actions relating to (i) an IRS examination of the Company commenced under Section 6231(a) of the Code, (ii) a request for administrative adjustment filed by the Company under Section 6227 of the Code, (iii) the filing of a petition for readjustment under Section 6234 of the Code with respect to a final notice of partnership adjustment, (iv) the appeal of an adverse judicial decision, and (v) the compromise, settlement, or dismissal of any such proceedings.
(c) The Partnership Representative shall not compromise or settle any tax audit or litigation affecting the Members without the approval of a majority of Members. Any material proposed action, inaction, or election to be taken by the Partnership Representative, including the election under Section 6226(a)(1) of the Code, shall require the prior approval of a majority of Members.
The Company shall dissolve, and its assets and business shall be wound up, upon the occurrence of any of the following events:
(a) Unanimous written consent of the Members to dissolve the Company;
(b) The sale or other disposition of all or substantially all the Company's assets outside the ordinary course of business;
(c) An event which makes it unlawful or impossible for the Company business to be continued;
(d) The withdrawal of one or more Members such that there is only one remaining Member; or
(e) The entry of a decree of judicial dissolution under § 18-802 of the Delaware Act.
Following the occurrence of an event described in Section 11.1, the Members shall appoint a liquidating trustee who shall wind up the affairs of the Company by (i) selling its assets in an orderly manner (so as to avoid the loss normally associated with forced sales), and (ii) applying and distributing the proceeds of such sale, together with other funds held by the Company: (a)
Each of the Members shall be furnished with a statement prepared by the independent accountants retained on behalf of the Company, which shall set forth the assets and liabilities of the Company as of the date of the final distribution of Company's assets under Section 11.2 and the net profit or net loss for the fiscal period ending on such date. Upon compliance with the distribution plan set forth in Section 11.2, the Members shall cease to be such, and the liquidating trustee shall execute, acknowledge, and cause to be filed a certificate of cancellation of the Company. Upon completion of the dissolution, winding up, liquidation, and distribution of the liquidation proceeds, the Company shall terminate.
Each Member, by and for itself, each of its Affiliates and each of its and their respective equity holders, directors, officers, controlling persons, partners, employees, successors and assigns, hereby acknowledges and agrees that it is the intent of the Company and each Member that the liability of each Member and each individual currently or formerly serving as an SRO Voting Representative (each, an “
(a) To the maximum extent permitted by Applicable Law or as otherwise expressly provided herein, no present or former Exculpated Party or any of such Exculpated Party's Affiliates, heirs, successors, assigns, agents or representatives shall be liable to the Company or any Member for any loss suffered in connection with a breach of any fiduciary duty, errors in judgment or other acts or omissions by such Exculpated Party;
(b) Notwithstanding anything to the contrary contained herein, whenever in this Agreement or any other agreement contemplated herein or otherwise, an Exculpated Party is permitted or required to take any action or to make a decision in its “sole discretion” or “discretion” or that it deems “necessary,” or “necessary or appropriate” or under a grant of similar authority or latitude, the Exculpated Party may, insofar as Applicable Law permits, make such decision in its sole discretion (regardless of whether there is a reference to “sole discretion” or “discretion”). The Exculpated Party (i) shall be entitled to consider such interests and factors as it desires (including its own interests), (ii) shall have no duty or obligation (fiduciary or otherwise) to give any consideration to any interest of or factors affecting the Company or the Members, and (iii) shall not be subject to any other or different standards imposed by this Agreement, or any other agreement contemplated hereby, under any Applicable Law or in equity.
(a) Subject to the limitations and conditions provided in this Article XII and to the fullest extent permitted by Applicable Law, the Company shall indemnify each Company Indemnified Party for Losses as a result of the Company Indemnified Party being a Party to a Proceeding. Notwithstanding the foregoing, no such indemnification shall be available in the event the Company is a claimant against the Company Indemnified Party.
(b) Indemnification under this Article XII shall continue as to a Company Indemnified Party who has ceased to serve in the capacity that initially entitled such Company Indemnified Party to indemnity hereunder;
(c) The rights granted pursuant to this Article XII shall be deemed contract rights, and no amendment, modification, or repeal of this Article XII shall have the effect of limiting or denying any such rights with respect to actions taken or Proceedings arising prior to any amendment, modification, or repeal. It is expressly acknowledged that the indemnification provided in this Article XII could involve indemnification for negligence or under theories of strict liability.
(d) The Company shall be the primary obligor in respect of any Company Indemnified Party's claim for indemnification, for advancement of expenses, or for providing insurance, subject to this Article XII. The obligation, if any, of any Member or its Affiliates to indemnify, to advance expenses to, or provide insurance for any Company Indemnified Party shall be secondary to the obligations of the Company under this Article XII (and the Company's insurance providers shall have no right to contribution or subrogation with respect to the insurance plans of such Member or its Affiliates).
Reasonable expenses incurred by a Company Indemnified Party who is a named defendant or respondent to a Proceeding shall be paid by the Company in advance of the final disposition of the Proceeding upon receipt of an undertaking by or on behalf of such Company Indemnified Party to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Company.
Notwithstanding any other provision of this Article XII, the Company shall pay or reimburse reasonable out-of-pocket expenses incurred by a Company Indemnified Party in connection with his appearance as a witness or other participation in a Proceeding at a time when he is not a named defendant or respondent in the Proceeding.
The right to indemnification and the advancement and payment of expenses conferred in this Article XII shall not be exclusive of any other right which any Company Indemnified Person may have or hereafter acquire under any law (common or statutory), provision of the Certificate or this Agreement or otherwise.
The Company shall pay all current expenses, including any Taxes payable by the Company, whether for its own account or otherwise required by law (including any costs of complying with applicable tax obligations), third-party service provider fees, and all administrative and processing expenses and fees, as well as any other amounts owing to the Processors under the Processor Services Agreements, to the Administrator under the Administrative Services Agreement, or to the Processors, Administrator, or FINRA under
Upon the Operative Date, this Agreement supersedes the CQ Plan, the CTA Plan, and the UTP Plan and all other prior agreements among the Members with respect to the subject matter hereof. This instrument contains the entire agreement with respect to such subject matter.
Unless otherwise specified herein, all notices, consents, approvals, reports, designations, requests, waivers, elections, and other communications (collectively, “
This Agreement shall be governed by and construed in accordance with the Delaware Act and internal laws and decisions of the State of Delaware, without regard to the conflicts of laws principles thereof;
(a) Except as this Agreement otherwise provides, this Agreement may be modified from time to time when authorized by the Operating Committee pursuant to Section 4.3, subject to the approval of the Commission or when such modification otherwise becomes effective pursuant to section 11A of the Exchange Act and Rule 608 of Regulation NMS.
(b) In the case of a Ministerial Amendment, the Chair of the Company's Operating Committee may modify this Agreement by submitting to the Commission an appropriate amendment that sets forth the modification;
(c) “
(i) admitting a new Member to the Company;
(ii) changing the name or address of a Member;
(iii) incorporating a change that the Commission has implemented by rule and that requires no conforming language to the text of this Agreement;
(iv) incorporating a change (A) that the Commission has implemented by rule, (B) that requires conforming language to the text of this Agreement, and (C) whose conforming language to the text of this Agreement has been approved by the affirmative vote of the Operating Committee pursuant to Section 4.3;
(v) incorporating a change (A) that a Governmental Authority requires relating to the governance or operation of an LLC, (B) that requires conforming language to the text of this Agreement, and (C) whose conforming language to the text of this Agreement has been approved by the affirmative vote of the Operating Committee pursuant to Section 4.3 or upon approval by a majority of Members pursuant to Section 13.5(b), as applicable; or
(vi) incorporating a purely technical change, such as correcting an error or an inaccurate reference to a statutory provision, or removing language that has become obsolete.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective legal representatives and successors.
None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company. Furthermore, except as provided in Section 3.7(b), the Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company or to issue any call for capital pursuant to this Agreement. Nothing in this Agreement shall be deemed to create any legal or equitable right, remedy or claim in any Person not a party hereto (other than any Person indemnified under Article XII).
This Agreement may be executed by the Members in any number of counterparts, no one of which need contain the signature of all Members. As many such counterparts as shall together contain all such signatures shall constitute one and the same instrument.
The section and other headings contained in this Agreement are for reference purposes only and shall not be deemed to be a part of this Agreement or to affect the meaning or interpretation of any provisions of this Agreement.
If any provision of this Agreement shall be held invalid or unenforceable, that shall not affect the validity or enforceability of any other provisions of this Agreement, all of which shall remain in full force and effect.
Each reference in this Agreement to a particular statute or regulation, or a provision thereof, shall be deemed to refer to such statute or regulation, or provision thereof, or to any similar or superseding statute or regulation, or provision thereof, as is from time to time in effect.
This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof, and no amendment, modification or alteration shall be binding unless the same is in writing and adopted in accordance with the provisions of Section 13.5.
The steps to implement the Plan and timelines for completing these various steps are set forth in Exhibit F. The timeline shall begin when the Plan is approved by the Commission, and such approval is published on the Commission's website. The steps to implement the Plan have been organized into multiple workstreams, some of which can be performed in parallel, and others have dependencies that need to be completed before they can begin. In the Exhibit F, the Company has identified such dependencies, some of which are outside the control of the Operating Committee. In the event a workstream listed in Exhibit F takes shorter or, due to factors outside the Operating Committee's reasonable control, takes longer than expected, the timelines for contingent steps shall be adjusted accordingly to account for such change. Any lengthening of the timeline must be made by an affirmative vote of the Operating Committee pursuant to Section 4.3(b) and must be based on a reasonable determination that the timeline needs to be extended. In such instances, the Operating Committee will include the adjustment in its written progress report to the Commission in accordance with Section 14.2.
(a) Beginning three months after the formation of the Operating Committee and continuing every three months until the Operative Date, the Operating Committee will provide written progress reports to the Commission every three months.
(b) The written progress reports will contain the actions undertaken to date by the Operating Committee and a detailed description of the progress made toward completing each of the steps listed in Exhibit F. The Operating Committee will make such progress reports available on the CQ Plan and CTA Plan's and UTP Plan's websites, and on the Plan's website, when available after the selection of the Administrator.
(a) Until the Operative Date, the Members will continue to operate pursuant to the CQ Plan, CTA Plan, and UTP Plan with respect to the public dissemination of real-time consolidated equity market data for Eligible Securities rather than this Agreement.
(b) As of the Operative Date, the Members shall conduct, through the Company, the Processor and Administrator functions related to the public dissemination of real-time consolidated equity market data for Eligible Securities required by the Commission to be performed by the Members under the Exchange Act. The Members shall file an amendment to the CQ Plan, CTA Plan, and UTP Plan to cease their operation as of the Operative Date.
IN WITNESS WHEREOF, the undersigned Members have executed this Agreement as of the day and year first above written.
Cboe BYX Exchange, Inc., 400 South LaSalle Street, Chicago, Illinois 60605.
Cboe BZX Exchange, Inc., 400 South LaSalle Street, Chicago, Illinois 60605.
Cboe EDGA Exchange, Inc., 400 South LaSalle Street, Chicago, Illinois 60605.
Cboe EDGX Exchange, Inc., 400 South LaSalle Street, Chicago, Illinois 60605.
Cboe Exchange, Inc., 400 South LaSalle Street, Chicago, Illinois 60605.
Financial Industry Regulatory Authority, Inc., 1700 K Street, NW, Washington, DC 20006.
Investors Exchange LLC, 3 World Trade Center 58th Floor, New York, New York 10007.
Long-Term Stock Exchange, Inc., 101 Greenwich Street, 15th Floor, New York, New York 10014.
MEMX LLC, 382 NE 191st Street, Suite 92178, Miami, FL 33179.
MIAX PEARL, LLC, 7 Roszel Road, Suite 1A, Princeton, New Jersey 08540.
Nasdaq BX, Inc., One Liberty Plaza, 165 Broadway, New York, New York 10006.
Nasdaq ISE, LLC, One Liberty Plaza, 165 Broadway, New York, New York 10006.
Nasdaq PHLX LLC, FMC Tower, Level 8, 2929 Walnut Street, Philadelphia, Pennsylvania 19104.
The Nasdaq Stock Market LLC, One Liberty Plaza, 165 Broadway, New York, NY 10006.
New York Stock Exchange LLC, 11 Wall Street, New York, New York 10005.
NYSE American LLC, 11 Wall Street, New York, New York 10005.
NYSE Arca, Inc., 11 Wall Street, New York, New York 10005.
NYSE Chicago, Inc., 11 Wall Street, New York, New York 10005.
NYSE National, Inc., 11 Wall Street, New York, NY 10005.
(a) The
(i) Is the Member for profit or not-for-profit? If the Member is for profit, is it publicly or privately owned? If privately owned, list any owner with an interest of 5% or more of the Member, where to the Member's knowledge, such owner, or any affiliate controlling, controlled by, or under common control with the owner, subscribes, directly or through a third-party vendor, to CT Feeds and/or Member PDP.
(ii) Does the Member offer PDP? If yes, list each product, describe its content, and provide a link to where fees for each product are disclosed.
(iii) Provide the names of the Voting Representative, any alternate Voting Representatives designated by the Member, and any Member Observers. Also provide a narrative description of such persons' roles within the Member organization, including the title of each individual as well as any direct responsibilities related to the development, dissemination, sales, or marketing of the Member's PDP, and the nature of those responsibilities sufficient for the public to identify the nature of any potential conflict of interest that could be perceived by a reasonable objective observer as having an effect on the operation of the Company. If such persons work in or with the Member's PDP business, describe such persons' roles and describe how that business and such persons' Company responsibilities impacts their compensation. In addition, describe how such persons' responsibilities with the PDP business may present a conflict of interest with their responsibilities to the Company.
(iv) Does the Member, its Voting Representative, its alternate Voting Representative, or its Member Observers or any affiliate have additional relationships or material economic interests that could be perceived by a reasonable objective observer to present a potential conflict of interest with their responsibilities to the Company? If so, provide a detailed narrative discussion of all material facts necessary to identify the potential conflicts of interest and the effects they may have on the Company.
(b) The
(i) Is the Processor an affiliate of or affiliated with any Member? If yes, disclose the Member(s) and describe the nature of the affiliation. Include an entity-level organizational chart depicting the Processor and its affiliates.
(ii) Provide a narrative description of the functions directly performed by senior staff, the manager employed by the Processor to provide Processor services to the Company, and the staff that reports to that manager.
(iii) Does the Processor provide any services for any Member's PDP, other NMS Plans, or creation of consolidated equity data information for its own use? If Yes, disclose the services the Processor performs and identify which NMS Plans. Does the Processor have any profit or loss responsibility for a Member's PDP or any other professional involvement with persons the Processor knows are engaged in a Member's PDP business? If so, describe.
(iv) List the policies and procedures established to safeguard Restricted Information, Highly Confidential Information, and Confidential Information that is applicable to the Processor.
(v) Does the Processor, or its representatives, have additional relationships or material economic interests that could be perceived by a reasonable objective observer to present a potential conflict of interest with the representatives' responsibilities to the Company? If so, provide a detailed narrative discussion of all material facts necessary to identify the potential conflicts of interest and the effects they may have on the Company.
(c) The
(i) Provide a narrative description of the functions directly performed by senior staff, the administrative services manager, and the staff that reports to that manager.
(ii) Does the Administrator provide any services for any Member's PDP? If yes, what services? Does the Administrator have any profit or loss responsibility, or licensing responsibility, for a Member's PDP or any other professional involvement with persons the Administrator knows are engaged in the Member's PDP business? If so, describe.
(iii) List the policies and procedures established to safeguard Restricted Information, Highly Confidential Information, and Confidential Information that is applicable to the Administrator.
(iv) Does the Administrator, or its representatives, have additional relationships or material economic interests that could be perceived by a reasonable objective observer to present a potential conflict of interest with the representatives' responsibilities to the Company? If so, provide a detailed narrative discussion of all material facts necessary to identify the potential conflicts of interest and the effects they may have on the Company.
(d) The
(i) Provide the member of the Advisory Committee's title and a brief description of the member of the Advisory Committee's role within the firm as well as any direct responsibilities related to the procurement of PDP or CT Feeds or the development, dissemination, sales, or marketing of PDP, and the nature of those responsibilities sufficient for the public to identify the nature of any potential conflict of interest that could be perceived by a reasonable objective observer as having an effect on the operation of the Company. If such representatives work in or with their employer's market data business, describe such member of the Advisory Committee's roles and describe how that business impacts their compensation. In addition, describe how such representatives' responsibilities with the market data business may present a conflict of interest with their responsibilities to the Company.
(ii) Does the member of the Advisory Committee have responsibilities related to the firm's use or procurement of market data?
(iii) Does the member of the Advisory Committee have responsibilities related to the firm's trading or brokerage services?
(iv) Does the member of the Advisory Committee's firm use the CT Feeds? Does the member of the Advisory Committee's firm use a Member's PDP?
(v) Does the member of the Advisory Committee's firm offer PDP? If yes, list each product, described its content, and provide information about the fees for each product.
(vi) Does the member of the Advisory Committee's firm have an ownership interest of 5% or more in one or more Members? If yes, list the Member(s).
(vii) Does the member of the Advisory Committee actively participate in any litigation against the CQ Plan, CTA Plan, UTP Plan, or the Company?
(viii) Does the member of the Advisory Committee or the member of the Advisory Committee's firm have additional relationships or material economic interests that could be perceived by a reasonable objective observer to present a potential conflict of interest with their responsibilities to the Company. If so, provide a detailed narrative discussion of all material facts necessary to identify the potential conflicts of interest and the effects they may have on the Company.
(e) Each
(i) Is the service provider or subcontractor affiliated with a Member, Processor, Administrator, or employer of a member of the Advisory Committee? If yes, disclose with whom the person is affiliated and describe the nature of the affiliation.
(ii) If the service provider's or subcontractor's compensation is on a commission basis or is tied to specific metrics, provide a detailed narrative summary of how compensation is determined for performing work on behalf of the Company.
(iii) Is the service provider or subcontractor subject to policies and procedures (including information barriers) concerning the protection of confidential information that includes affiliates? If so, describe. If not, explain their absence.
(iv) Does the service provider or subcontractor, or its representative, have additional relationships or material economic interests that could be perceived by a reasonable objective observer to present a potential conflict of interest with its responsibilities to the Company? If so, provide a detailed narrative discussion of all material facts necessary to identify the potential conflicts of interest and the effects they may have on the Company.
(f) The responses to these questions will be posted on the Company's website. If a Disclosing Party has any material changes in its responses, the Disclosing Party must promptly update its disclosures. Additionally, the Disclosing Parties must update the disclosures on an annual basis to reflect any changes. This annual update must be made before the first quarterly session meeting of each calendar year, which is generally held in mid-February.
(a) Purpose and Scope.
(i) The purpose of this Confidentiality Policy is to provide guidance to the Operating Committee, and all subcommittees thereof, regarding the confidentiality of any data or information (in physical or electronic form) generated by, accessed by, or transmitted to the Operating Committee or any subcommittee, as well as discussions occurring at a meeting of the Operating Committee or any subcommittee.
(ii) This Policy applies to all Covered Persons. All Covered Persons must adhere to the principles set out in this Policy and all Covered Persons that are natural persons may not receive Company data and information until they affirm in writing that they have read this Policy and undertake to abide by its terms.
(iii) Covered Persons may not disclose Restricted, Highly Confidential, or Confidential information except as consistent with this Policy and directed by the Operating Committee.
(iv) The Administrator and Processors will establish written confidential information policies that provide for the protection of information under their control and the control of their Agents, including policies and procedures that provide systemic controls for classifying, declassifying, redacting, aggregating, anonymizing, and safeguarding information, that is in addition to, and not less than, the protection afforded herein. Such policies will be reviewed and approved by the Operating Committee pursuant to Section 4.3, publicly posted, and made available to the Operating Committee for review and approval every two years thereafter or when changes are made, whichever is sooner.
(v) Information will be classified solely based on its content.
(b) Procedures.
(i) General
(A) The Administrator and Processors will be the custodians of all documents discussed by the Operating Committee and will be responsible for maintaining the classification of such documents pursuant to this Policy.
(B) The Administrator may, under delegated authority, designate documents as Restricted, Highly Confidential, or Confidential, which will be determinative unless altered by an affirmative vote of the Operating Committee pursuant to Section 4.3.
(C) The Administrator will ensure that all Restricted, Highly Confidential, or Confidential documents are properly labeled and, if applicable, electronically safeguarded.
(D) All contracts between the Company and its Agents shall require Company information to be treated as Confidential Information that may not be disclosed to third parties, except as necessary to effect the terms of the contract or as required by law, and shall incorporate the terms of this Policy, or terms that are substantially equivalent or more restrictive, into the contract.
(ii) Procedures Concerning Restricted Information
(A) Disclosure of Restricted Information
(1) Except as provided below, Covered Persons in possession of Restricted Information are prohibited from disclosing it to others.
(2) Covered Persons in possession of Restricted Information are prohibited from disclosing it to others, including Agents, except where authorized to do so by the Operating Committee. Any authorization to disclose Restricted Information must identify the Covered Persons or third party authorized to receive the Restricted Information, and such disclosure must be in furtherance of the interests of the plan. Any authorization must be granted on a case-by-case basis, unless the Operating Committee grants standing approval to allow disclosure of specified recurring information to identified Covered Persons. Any Covered Person or third party receiving or having access to Restricted Information pursuant to this subparagraph must segregate such information, retain it in confidence, and use it only in a manner consistent with the terms of this Policy.
(3) Covered Persons may disclose Restricted Information to the staff of the SEC or as otherwise required by Applicable Law, or to other Covered Persons as expressly provided for by this Policy.
(B) If the Administrator determines that it is appropriate to share a customer's financial information with the Operating Committee or a subcommittee thereof, the Administrator will first anonymize the information by redacting the customer's name and any other information that may lead to the identification of the customer.
(C) The Administrator may disclose the identity of a customer that is the subject of Restricted Information in Executive Session only if the Administrator determines in good faith that it is necessary to disclose the customer's identity in order to obtain input or feedback from the Operating Committee or a subcommittee thereof about a matter of importance to the Company. In such an event, the Administrator will change the designation of the information at issue from “Restricted Information” to “Highly Confidential Information,” and its use will be governed by the procedures for Highly Confidential Information in subparagraph (iii) below.
(iii) Procedures Concerning Highly Confidential Information
(A) Disclosure of Highly Confidential Information:
(1) Highly Confidential Information may be disclosed in Executive Session of the Operating Committee or to the subcommittee established pursuant to Section 4.7(c). Covered Persons in possession of Highly Confidential Information are prohibited from disclosing it to others, including Agents, except as provided below. This prohibition does not apply to disclosures to the staff of the SEC or as otherwise required by law (such as those required to receive the information to ensure the Member complies with its regulatory obligations).
(2) An SRO Voting Representative may disclose certain Highly Confidential Information to officers or employees of a Member who have direct or supervisory responsibility for the Member's participation in the Plan, or with agents for the Member supporting the Member's participation in the Plan, provided that such information may not be used in the procurement for, or development, modeling, pricing, licensing, or sale of, PDP. The types of Highly Confidential Information permitted to be shared under this subparagraph shall consist of (i) the Plan's contract negotiations with the Processor(s) or Administrator; (ii) communications with, and work product of, counsel to the Plan; and (iii) information concerning personnel matters that affect the employees of the Member or of the Plan. Any Covered Person receiving or having access to Restricted Information pursuant to this subparagraph must segregate such information, retain it in confidence, and use it only in a manner consistent with the terms of this Policy. Any SRO Voting Representative who discloses Highly Confidential Information pursuant to this subparagraph shall maintain a log documenting each instance of such disclosure, including the information shared, the persons receiving the information, and the date the information was shared.
(3) Highly Confidential Information may be disclosed to the staff of the SEC, unless it is protected by the Attorney-Client Privilege or the Work Product Doctrine. Any disclosure of Highly Confidential Information to the staff of the SEC will be accompanied by a FOIA Confidential Treatment request.
(4) Highly Confidential Information may be disclosed, as required by Applicable Law.
(5) The Operating Committee may authorize the disclosure of specified Highly Confidential Information to identified third parties that are acting as Agents. Any authorization must be granted on a case-by-case basis, unless the Operating Committee grants standing approval to allow disclosure of specified recurring information to identified Covered Persons. Any Covered Person or third party receiving or having access to Highly Confidential Information pursuant to this subparagraph must segregate such information, retain it in confidence, and use it only in a manner consistent with the terms of this Policy.
(5) Apart from the foregoing, the Operating Committee has no power to authorize any other disclosure of Highly Confidential Information.
(B) In the event that a Covered Person is determined by an affirmative vote of the Operating Committee pursuant to this Policy to have disclosed Highly Confidential Information, the Operating Committee will determine the appropriate remedy for the breach based on the facts and circumstances of the event. For an SRO Voting Representative or Member Observer, remedies include a letter of complaint submitted to the SEC, which may be made public by the Operating Committee. For a member of the Advisory Committee, remedies include removal of that member of the Advisory Committee.
(iv) Procedures Concerning Confidential Information
(A) Confidential Information may be disclosed during a meeting of the Operating Committee or any subcommittee thereof. Additionally, a Covered Person may disclose
(B) The Operating Committee may authorize the disclosure of Confidential Information by an affirmative vote of the Operating Committee pursuant to Section 4.3. Any authorization must be granted on a case-by-case basis, unless the Operating Committee grants standing approval to allow disclosure of specified recurring information to identified Covered Persons. Any Covered Person or third party receiving or having access to Confidential Information pursuant to this subparagraph must segregate such information, retain it in confidence, and use it only in a manner consistent with the terms of this Policy. Notwithstanding the foregoing, the Operating Committee will not authorize the disclosure of Confidential Information that is generated by a Member or member of the Advisory Committee and designated by such Member or member of the Advisory Committee as Confidential, unless such Member or member of the Advisory Committee consents to the disclosure.
(C) Members of the Advisory Committee may be authorized by the Operating Committee to disclose particular Confidential Information only in furtherance of the interests of the Company, to enable them to consult with industry representatives or technical experts, provided that the members of the Advisory Committee take any steps requested by the Operating Committee to prevent further dissemination of that Confidential Information, including providing the individual(s) consulted with a copy of this Policy and requesting that person to maintain the confidentiality of such information in a manner consistent with this policy.
(D) A Covered Person that is a representative of a Member may be authorized by the Operating Committee to disclose particular Confidential Information to other employees or agents of the Member or its affiliates only in furtherance of the interests of the Company as needed for such Covered Person to perform his or her function on behalf of the Company. A copy of this Policy will be made available to recipients of such information who are employees or agents of a Member or its affiliates that are not Covered Persons, who will be required to abide by this Confidentiality Policy.
(E) A Covered Person may disclose their own individual views and statements that may otherwise be considered Confidential Information without obtaining authorization of the Operating Committee, provided that in so disclosing, the Covered Person is not disclosing the views or statements of any other Covered Person or Member that are considered Confidential Information.
(F) A person that has reason to believe that Confidential Information has been disclosed by another without the authorization of the Operating Committee or otherwise in a manner inconsistent with this Policy may report such potential unauthorized disclosure to the Chair of the Operating Committee. In addition, a Covered Person that discloses Confidential Information without the authorization of the Operating Committee will report such disclosure to the Chair of the Operating Committee. Such self-reported unauthorized disclosure of Confidential Information will be recorded in the minutes of the meeting of the Operating Committee and will contain: (a) the name(s) of the person(s) who disclosed such Confidential Information, and (b) a description of the Confidential Information disclosed. The name(s) of the person(s) who disclosed such Confidential Information will also be recorded in any publicly available summaries of Operating Committee minutes.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(i) all cash revenues, funds and proceeds received by the Company during such calendar year (other than Capital Contributions by the Members or amounts paid pursuant to Section 3.7(b) of this Agreement), including all revenues from (A) the CT Feeds, which includes the dissemination of information with respect to Eligible Securities to foreign marketplaces, and (B) FINRA quotation data and last sale information for securities classified as OTC Equity Securities under FINRA's Rule 6400 Series (the “
(ii) 6.25% of the revenue received by the Company during such calendar year attributable to the segment of the Data Feeds reflecting the dissemination of information with respect to Network C Securities and FINRA OTC Data (but, for the avoidance of doubt, not including revenue attributable to the segment of the Data Feeds reflecting the dissemination of information with respect to Network A Securities and Network B Securities), which amount shall be paid to FINRA as compensation for the FINRA OTC Data;
(iii) reasonable working capital reserves and reasonable reserves for contingencies for such calendar year, as determined by the Operating Committee, and all costs and expenses of the Company during such calendar year, including:
(A) all amounts payable during such calendar year to the Administrator pursuant to the Administrative Services Agreement or this Agreement;
(B) all amounts payable during such calendar year to the Processors pursuant to the Processor Services Agreements or this Agreement; and
(C) all amounts payable during such calendar year to third-party service providers engaged by or on behalf of the Company.
(k)
(l)
(m)
[To be determined by the Operating Committee under this Agreement]
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 5.3-O to permit the listing and trading of options on Commodity-Based Trust Shares. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
NYSE Arca Rule 5.3-O, Criteria for Underlying Securities, provides for Exchange listing and trading of option contracts. The rule sets forth the criteria to be met by underlying securities with respect to which put or call option contracts are approved for listing and trading on the Exchange. The purpose of this filing is to amend NYSE Arca Rule 5.3-O, and more specifically, NYSE Arca Rule 5.3-O(g) to permit the listing and trading of options on Commodity-Based Trust Shares.
Currently, Rule 5.3-O(g) deems appropriate for options trading Exchange-Traded Fund Shares (“ETFs” or “Fund Shares”) that are traded on a national securities exchange and are defined as an “NMS stock” in Rule 600(b)(55) of Regulation NMS, and that (i) represent an interest in a registered investment company organized as open-end management investment company, a unit investment trust or a similar entity which holds securities and/or financial instruments, options on securities and indices, equity caps, collars and floors, swap agreements, forward contracts, repurchase agreements and reverse purchase agreements (the “Financial Instruments”), and money market instruments, including, but not limited to, U.S. government securities and repurchase agreements (the “Money Market Instruments”) constituting or otherwise based on or representing an investment in an index or portfolio of securities and/or Financial Instruments and Money Market Instruments; or (ii) represent interests in a trust or similar entity that holds a specified non-U.S. currency deposited with the trust or similar entity when aggregated in some specified minimum number may be surrendered to the trust by the beneficial owner to receive the specified non-U.S. currency and pays the beneficial owner interest and other distributions on the deposited non-U.S. currency, if any, declared and paid by the trust; or (iii) represent commodity pool interests principally engaged, directly or indirectly, in holding and/or managing portfolios or baskets of securities, commodity futures contracts, options on commodity futures contracts, swaps, forward contracts and/or options
Apart from allowing Commodity-Based Trust Shares to be an underlying for options traded on the Exchange as described above, the listing standards for ETFs will remain unchanged from those that apply under current Exchange rules. ETFs on which options may be listed and traded must still be listed and traded on a national securities exchange and must satisfy the current listing standards set forth in NYSE Arca Rule 5.3-O.
Commodity-Based Trust Shares are securities issued by a trust that represents investors' discrete identifiable and undivided beneficial ownership interest in the commodities deposited into the Trust. Commodity-Based Trust Shares, although based upon a publicly disclosed portfolio of securities, each trade as a single exchange-listed equity security. Accordingly, rules pertaining to the listing and trading of standard equity options will apply to options on Commodity-Based Trust Shares.
The Exchange will consider listing and trading options on Commodity-Based Trust Shares provided the Commodity-Based Trust Shares meet (1) the criteria for underlying securities set forth in NYSE Arca Rule 5.3-O(a)
The Exchange proposes that Commodity-Based Trust Shares deemed appropriate for options trading represent an interest in a trust, as described below:
•
Additionally, the Exchange proposes that options on Commodity-Based Trust Shares may only be listed and traded on the Exchange if the underlying security has been reviewed and approved by the Securities and Exchange Commission under Section 19(b)(2) of the Act or noticed for immediate effectiveness under Section 19(b)(3)(A) of the Act, as applicable. Pursuant to Commission approval, the Exchange currently lists and trades 18 Commodity-Based Trust Shares.
The Exchange represents that the current continued listing standards for options on Exchange-Traded Fund Shares will apply to options on Commodity-Based Trust Shares. Specifically, under NYSE Arca Rule 5.4-O(k), options on Exchange-Traded Fund Shares may be subject to the suspension of opening transactions as follows: (1) the Commodity-Based Trust Share no longer meets the terms of paragraphs 1 through 4 of Rule 5.4-O(b); (2) following the initial twelve-month period beginning upon the commencement of trading of the Exchange-Traded Fund Shares, there are fewer than 50 record and/or beneficial holders of the Exchange-Traded Fund Shares for 30 or more consecutive trading days; (3) the value of the underlying commodity is no longer calculated or available; or (4) such other event occurs or condition exists that in the opinion of the Exchange makes further dealing on the Exchange inadvisable. Additionally, Commodity-Based Trust Shares shall not be deemed to meet the requirements for continued approval, and the Exchange shall not open for trading any additional series of option contracts covering Commodity-
Finally, all options on Commodity-Based Trust Shares listed pursuant to proposed Rule 5.3-O(g)(x) would be included within the definition of securities as such terms are used in the Exchange's rules and, as such, would be subject to Exchange rules and procedures that currently govern the trading of securities on the Exchange, including Exchange rules governing the trading of equity options. Furthermore, the Exchange's rules pertaining to position and exercise limits
The Exchange notes that options on Commodity-Based Trust Shares would not be available for trading until The Options Clearing Corporation (“OCC”) represents to the Exchange that it is fully able to clear and settle such options. The Exchange has also analyzed its capacity and represents that it and The Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the additional traffic associated with the listing of options on Commodity-Based Trust Shares.
The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of options on Commodity-Based Trust Shares in all trading sessions and to deter and detect violations of Exchange rules. The Exchange will utilize its existing surveillance procedures applicable to options on exchange traded funds (which will include Commodity-Based Trust Shares) to monitor such trading. In addition, the Exchange will implement any new surveillance procedures it deems necessary to effectively monitor the trading of options on Commodity-Based Trust Shares, including adequate comprehensive surveillance sharing agreements (“CSSA”) with markets trading in non-U.S. components,
Finally, quotation and last sale information for Commodity-Based Trust Shares is available via the Consolidated Tape Association (“CTA”) high speed line. Quotation and last sale information for such securities is also available from the exchange on which such securities are listed. Quotation and last sale information for options on Commodity-Based Trust Shares will be available via OPRA
The Exchange notes that the Commission has previously approved generic listing standards pursuant to Rule 19b-4(e) of the Act
The Exchange believes that the proposed rule change would promote transparency surrounding the listing process for options on Commodity-Based Trust Shares. Exchange listing standards play a critical role in ensuring transparency in the market. Adopting objective criteria, such as those that would be applicable for the listing and trading of options on Commodity-Based Trust Shares would help investors to make informed decisions about which options to invest in and would provide a level of transparency that is essential for a well-functioning market.
The Exchange also believes that the standards for listing and trading options
The Exchange believes that its proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes the proposed rule change will also result in increased competition as other exchanges will likely adopt an identical rule to the one proposed by the Exchange that would allow the listing and trading of options on Commodity-Based Trust Shares that are approved for trading on those other markets. Multiple listing of ETFs, options and other securities and competition are some of the central features of the national market system. The Exchange believes that the proposal would encourage a more open market and national market system based on competition and multiple listing.
The proposed rule change adds an additional listing mechanism for certain qualifying options on ETFs to be listed on the Exchange in a manner that is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, to protect investors and the general public.
The Exchange further believes that the proposed rules applicable to trading pursuant to generic listing and trading criteria, together with the Exchange's surveillance procedures applicable to trading in the securities covered by the proposed rules, serve to remove impediments to and perfect the mechanism of a free and open market and a national market system.
The Exchange has an adequate surveillance program in place to detect manipulative trading in options on Commodity-Based Trust Shares. The Exchange represents that it and OPRA have the necessary systems capacity to support new options series that would be listed and traded pursuant to this proposed rule change.
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. To the contrary, the Exchange believes that the proposal is, as discussed, pro-competitive and is a competitive response to the Exchange's inability to list options on Commodity-Based Trust Shares without submitting a separate proposed rule change. The Exchange believes the proposed rule change will result in additional investment options and opportunities to achieve the investment objectives of market participants seeking efficient trading and hedging vehicles, to the benefit of investors, market participants, and the marketplace in general. Competition is one of the principal features of the national market system. The Exchange believes that this proposal will expand competitive opportunities to list and trade products on the Exchange as noted.
The Exchange does not believe the proposal will impose any burden on intra-market competition, as all market participants will be treated in the same manner under this proposal. Additionally, the Exchange does not believe the proposal will impose any burden on inter-market competition, as nothing prevents the other options exchanges from proposing similar rules to list and trade options on Commodity-Based Trust Shares. In fact, the Exchange believes other options exchanges will adopt an identical rule so that they may also list and trade options on Commodity-Based Trust Shares without submitting a separate proposed rule change.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove the 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.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 18f-3 (17 CFR 270.18f-3) under the Investment Company Act of 1940 (15 U.S.C. 80a-1
The requirement that the fund prepare and directors approve a written rule 18f-3 plan is intended to ensure that the fund compiles information relevant to the fairness of the separate arrangement and expense allocation for each class, and that directors review and approve the information. Without a blueprint that highlights material differences among classes, directors might not perceive potential conflicts of interests when they determine whether the plan is in the best interests of each class and the fund. In addition, the plan may be useful to Commission staff in reviewing the fund's compliance with the rule.
The following estimates of average burden hours are made solely for purposes of the Paperwork Reduction Act of 1995
The information provided under rule 18f-3 will not be kept confidential. 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 public may view background documentation for this information collection at the following website:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend FINRA Rule 6730 to reduce the 15-minute TRACE reporting timeframe to one minute, with exceptions for member firms with
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA 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. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA has collected and disseminated transaction information in fixed income securities through TRACE since 2002.
FINRA rules specify the applicable outer-limit reporting timeframe for different types of TRACE-Eligible Securities,
Thus, today, transactions in these securities are generally required to be reported as soon as practicable
FINRA is proposing amendments to Rule 6730 (Transaction Reporting) to reduce the trade reporting timeframe for securities currently subject to the 15-minute reporting outer limit to one minute, with exceptions for member firms with
Under existing Rule 6730(a)(1), transactions in corporate bonds, agency debt, ABS, and MBS TBA GD generally must be reported as soon as practicable, but no later than within 15 minutes of execution. Specifically, transactions executed on a business day at or after 12:00:00 a.m. ET through 7:59:59 a.m. ET must be reported the same day no later than 15 minutes after the TRACE system opens. Transactions executed on a business day at or after 8:00:00 a.m. ET through 6:29:59 p.m. ET must be reported no later than within 15 minutes of the Time of Execution, except for transactions executed on a business day less than 15 minutes before 6:30 p.m. ET, which must be reported no later than 15 minutes after the TRACE system opens the next day (and, if reported on T+1, designated “as/of” with the date of execution). Finally, transactions executed on a business day at or after 6:30:00 p.m. ET through 11:59:59 p.m. ET, or trades executed on a Saturday, a Sunday, a federal or religious holiday, or other day on which the TRACE system is not open at any time during that day, must be reported on the next business day no later than 15 minutes after the TRACE system opens (and must be designated “as/of” and include the date of execution).
To provide more timely information about transactions in corporate bonds, agency debt, ABS, and MBS TBA GD, subject to the exceptions discussed below and as provided in Rule 6730(a)(2), FINRA is proposing to amend Rule 6730(a)(1) to reduce the trade reporting timeframe as follows. Amended Rule 6730(a)(1) would provide that transactions must be reported as soon as practicable, but no later than within one minute of the Time of Execution.
FINRA is proposing two exceptions from the one-minute reporting timeframe for: (1) member firms with “limited trading activity” in the TRACE-Eligible Securities that are subject to one-minute reporting; and (2) manual trades.
New Supplementary Material .08 would provide an exception to the one-minute reporting timeframe for members with “limited trading activity.” A member with “limited trading activity” would be defined as a member that, during one of the prior two calendar years, reported to TRACE fewer than 4,000 transactions in the TRACE-Eligible Securities that are subject to paragraphs (a)(1)(A) through (a)(1)(D) of Rule 6730 (
Members that exceeded the 4,000-trade threshold two calendar years in a row would be required to comply with the one-minute reporting requirements of paragraphs (a)(1)(A) through (a)(1)(D) of the Rule beginning 90 days after the firm no longer meets the criteria for the exception (
New Supplementary Material .09 would provide an exception for manual trades that would afford firms additional time to report transactions that are not electronic from end to end, as described further below. Where a trade qualifies for the manual trades exception, a 15-minute outer limit would apply for the first year following implementation; a 10-minute outer limit would apply for the second year; and a five-minute outer limit would apply thereafter.
The manual trades exception would apply narrowly only to “transactions that are manually executed” or where a “member must manually enter any of the trade details or information necessary for reporting the trade through the TRAQS website or into a system that facilitates trade reporting to TRACE.” Thus, a trade that requires manual intervention at any point to complete the trade execution or reporting process would qualify for the manual trades exception. In that regard, while an exhaustive list cannot be provided here, FINRA contemplates that the exception would be available for a variety of situations that meet the specified criteria, including, for example:
• where a member executes a trade
• where allocations to individual accounts must be manually input in connection with a trade by a dually-registered broker-dealer/investment adviser;
• where an electronic trade is subject to manual review for risk management or regulatory compliance purposes and, as part of or following the review, the trade must be manually approved, amended, or released before the trade is reported to TRACE (
• where a member trades a bond for the first time and additional manual steps are necessary to set the bond up in the firm's systems to book and report the trade (
• where a member agrees to trade a basket of securities at a single price and manual action is required to calculate the price of component securities in the basket or to book and report the trade in component securities to TRACE.
The above examples are illustrative of the types of circumstances in which, due to the manual nature of components of the trade execution or reporting process, reporting a transaction within one minute of the Time of Execution may be unfeasible, even where a member makes reasonable efforts to report the trade as soon as practicable (as required). FINRA also will assess members' trade reporting in connection with manual trades to determine whether the five-minute trade reporting timeframe (to become applicable after two years) is appropriate, and will be prepared to make adjustments, as necessary.
FINRA has extensive experience and data regarding members' historic behaviors reporting transactions to TRACE under a myriad of scenarios. FINRA will be reviewing the use of the manual trades exception—members may not, in any case, purposely delay the execution or reporting of a transaction by handling any aspect of a trade manually or introducing manual steps following the Time of Execution. Additionally, in light of the overarching obligation to report trades as soon as practicable, members should consider the types of transactions in which they regularly engage and whether they can reasonably reduce the time between a trade's Time of Execution and its reporting, and more generally must make a good faith effort to report their trades as soon as practicable.
In addition, FINRA proposes to amend Rule 6730(d)(4) to require that any member that executes or reports a trade manually append a manual trade
Finally, FINRA is proposing to amend Rule 6730(f) to provide that a pattern or practice of late reporting may be considered conduct inconsistent with high standards of commercial honor and just and equitable principles of trade, in violation of Rule 2010, absent “reasonable justification” (in addition to the rule's existing reference to “exceptional circumstances”).
If the Commission approves the proposed rule change, FINRA will announce the effective date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA believes that reducing the reporting timeframe to as soon as practicable, but no later than within one minute from the time of execution for corporate, agency, ABS and MBS TBA GD transactions helps achieve the purposes of the Act. As discussed above, the 15-minute reporting timeframe has been in place for corporate bonds and agency debt securities since 2005. Since that time, the fixed income markets have changed dramatically, including a significant increase in the use of electronic trading platforms or other electronic communication protocols to facilitate the execution of transactions. With these changes, FINRA has been considering ways to modernize the rule and provide for more timely, granular and informative data to enhance the value of disseminated transaction data. FINRA believes that the proposed rule change helps achieve the purposes of the Act in that it will improve the timeliness of information reported to TRACE, thereby benefiting transparency and allowing investors and other market participants to obtain and evaluate more timely pricing information for these securities. FINRA also believes that the proposed exceptions from the one-minute reporting requirement for members with
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
FINRA has undertaken an economic impact assessment, as set forth below, to further analyze the regulatory need for the proposed rule change, its potential economic impacts, including anticipated costs, benefits, and distributional and competitive effects, relative to the current baseline, and the alternatives considered in assessing how best to meet its regulatory objective.
As described below in more detail, approximately 83 percent of transactions in TRACE-Eligible Securities currently subject to the 15-minute reporting timeframe are reported within one minute of execution. However, there is significant variation in reporting timeframes within and across member firms of different sizes and across different products. The proposed
As discussed previously, over the last 18 years there have been significant advancements in the fixed income markets, and in recognition of those advancements, FINRA is proposing to reduce the TRACE trade reporting timeframe for transactions in all TRACE-Eligible Securities that currently are subject to a 15-minute reporting timeframe. Timelier reporting provides more timely transaction information to the market, supporting more effective price formation and potentially decreasing trading costs and increasing liquidity.
The economic baseline stems from current Rule 6730, establishing a reporting requirement of as soon as practicable but no later than within 15 minutes of the Time of Execution. Factors that may affect the speed with which firms can report executions include, but are not limited to, security characteristics, recency of trading in a particular security, trading platform, execution method, reporting process and level of automation.
Overall, in 2022 838 member firms reported trades in TRACE-Eligible Securities currently subject to the 15-minute reporting timeframe, with 803, 443, 79, 216 and 173 member firms reporting trades in corporate bonds, agency debt, MBS TBA GD, equity-linked notes (ELNs) and ABS respectively.
Specifically, FINRA analyzed trade reporting times by dealers and alternative trading systems (ATSs) under the current 15-minute reporting timeframe using TRACE data from January 2022 through December 2022.
FINRA examined the distribution of trade reports from one to 15 minutes from the Time of Execution for corporate bonds, agency debt, MBS TBA GD, ELNs and ABS.
FINRA examined whether reporting timeframes differ across trade sizes. For certain products, large trades are more likely to be more complex or a voice trade, or otherwise require manual handling. FINRA examined the distribution of trade reports from one to 15 minutes from the Time of Execution
Panel B of Table 2 shows that, for corporate bonds and agency debt, smaller trades were reported faster while larger trades took longer to report. FINRA found that 84 percent of corporate bond trades smaller than $1 million were reported within one minute whereas 62 percent of trades greater than or equal to $25 million were reported within one minute. For agency debt, 84 percent of trades smaller than $1 million were reported within one minute whereas 44 percent of trades greater than or equal to $25 million were reported within one minute. Trade size did not appear to be strongly associated with reporting time for other products.
FINRA compared trade reporting times across firms with different levels of activity to assess how the potential burdens stemming from the proposed rule change would be distributed across firms. The analysis measured reporters' activity by number of trades in 2022 and assigned them to three activity groups: where a reporter's trades accounted for less than 0.01 percent, 0.01 through 0.1 percent, or greater than 0.1 percent of total reported trades.
On average, the most active trade reporters reported their trades to TRACE more quickly. Specifically, 84 percent of trades executed by the most active reporters (with more than 0.1 percent of reported trades) were reported within
In addition, FINRA examined the reporting times by individual reporters by measuring the percentage of firms that reported at least 95 percent of their trades within one minute. Overall, approximately 18 percent of reporters submitted 95 percent of their trades within one minute. When examined by reporter activity level, 35 percent of reporters with greater than 0.1 percent of trade reports submitted 95 percent of their trades within one minute, compared to 17 percent of reporters with less than 0.01 percent of trade reports. FINRA notes that most firms reported some material portion of their trades after one minute, regardless of their level of trading activity.
FINRA examined trades that were executed during TRACE system hours and compared the findings to trades that were executed outside of these hours, which are subject to different reporting timeframe requirements. Table 4 shows that trades executed and reported after hours represented only 1.18 percent of total par value. In all cases, these trades took longer to report. For instance, less than 21 percent of trades executed between 6:15 and 6:29 p.m. ET were reported within one minute,
FINRA examined several trading scenarios, described further below, where trading or reporting could involve manual processes.
When a bond starts to trade, the security may not be on the member firm's security master (or on FINRA's security master), which requires firms to engage in a set-up process to facilitate execution or trade reporting. FINRA examined the reporting time for bonds when they first start to trade in the secondary market. Table 5 shows that in the three-day period after secondary market trading commenced in a newly issued bond, 63 percent of trades were reported within one minute, as compared to 83 percent for trades executed more than three days after the first trade. Longer reporting times were associated with the commencement of secondary market trading in newly issued bonds, but not in cases where a firm first started to trade a bond that was not new to market (but where the firm had not previously traded the security).
FINRA examined transaction reporting times for self-cleared trades as well as those cleared through third-party clearing firms and found that trades that are cleared through third-party clearing firms overall took longer to report. For trades cleared through a third party, 71 percent were reported within one minute, as compared to 85 percent for self-cleared trades. FINRA found that trades through some third-party clearing firms were reported as fast as self-cleared trades. There were also significant variations in trade reporting time by correspondent firms through the same third-party clearing firm.
FINRA examined transaction reporting times for trades that were subsequently suballocated across multiple accounts and found that, for allocated trades,
FINRA examined transaction reporting times for basket or portfolio trades and found that overall, these trades take longer to report. For portfolio trades,
FINRA analyzed the number of transactions executed on or through an ATS, which approximates a subset of electronically executed and reported transactions. ATS trades represented 28.1 percent of total trade reports during the sample period. Of those, 81.0 percent were reported within one minute and 93.9 percent were reported within two minutes. For non-ATS trades, which represented 71.9 percent of total reports (some of which may qualify for the phased-in five-minute reporting timeframe available for manual trades), 83.7 percent were reported within one minute and 96.9 percent were reported within five minutes.
The proposed reporting timeframe reduction would require members to adopt enhancements to their current trade reporting processes to facilitate timelier reporting for transactions that currently are not reported within one minute (in 2022, 82.9 percent of the trades executed after 8:00 a.m. and before 6:15 p.m. E.T. were reported within one minute of execution). The proposed rule change therefore likely would result in quicker reporting and thus dissemination of transaction information for at least a portion of the approximately 17 percent of transactions that are not currently reported within one minute of execution. FINRA estimates that, after adjusting for the proposed
FINRA analyzed the number of transactions executed on or through an ATS, which approximates a subset of electronically executed and reported transactions for which the manual trades exception will not be applicable. ATS trades represented 28.1 percent of total reports during the sample period. Of those, 81.0 percent were reported within one minute and 93.9 percent were reported within two minutes. This indicates that the proposed rule change will likely result in at least an additional 5.3 percent (28.1 percent × (1−.81)) of total trades being reported within one minute (not accounting for the impact of the proposed
A reduction in the time between trade execution and price dissemination would enhance transparency in the fixed income market and is consistent with the purposes of TRACE. Timelier reporting would allow FINRA to provide more timely pricing and other transaction information to the market, which supports more efficient price formation. Timely reporting has also been shown to increase dealer market-making activities in the municipal markets.
Large trades took longer on average to report than smaller trades. Large trades may also have a greater impact on the direction of the market. To the extent the proposed rule change results in faster dissemination of pricing information for large trades, the market could benefit from earlier access to information that could be more indicative of market movement.
FINRA believes that the proposed rule change would likely result in direct and indirect costs for members to implement changes to their processes and systems for reporting transactions to TRACE within the new timeframes. While members currently using a third-party reporting service may incur less costs, as these costs will likely be borne largely by the third-party reporting service which may spread the costs across all of the reporting firms using its services, those firms that do not currently use a third-party reporting service may opt to do so if the costs would be lower than building or augmenting their own system. However, as discussed above, FINRA proposes to provide relief for members with respect to manual trades and for members with
Most firms reported some material portion of their trades after one minute. This is true even for very active firms that may have a more sophisticated trade reporting infrastructure in place. For these trades, members may incur costs to modify their reporting systems and procedures to report more quickly and to monitor that the trades are reported in the required timeframe. The costs may be mitigated by the proposed relief for members with respect to manual trades and for members with
Given current differences in access to trading and reporting technologies across firms, some firms may be impacted by the proposed rule change more than others. FINRA understands that larger and more active firms already employ reporting services and technologies to automate trade reporting and would be better positioned to absorb the costs of the proposal. Any impact on competition is likely to be limited, given the proposed exceptions described above. In particular, the
Additionally, given trading in the fixed income products covered by the proposed rule change in many instances continues to involve manual intervention at some point to complete the trade execution or reporting process (
Some firms close to exceeding the
Members qualifying for the
Depending on the relative costs of investing in systems to report in a timelier manner, members may opt to change their practices around executing and reporting trades to comply in ways other than improving the reporting process, and such modifications might have implications for the way in which a member operates its business and manages competing tasks. Members may also be reluctant to conduct trades for which it will be difficult to comply with the shortened reporting timeframe instead of making system changes necessary to comply. However, any indirect costs incurred as a result are bounded by the costs of improving the reporting process. FINRA expects that members will choose to improve their reporting process if it is more cost effective than other compliance approaches. The cost effectiveness of improving the reporting process through
FINRA considered requiring members to report trades as soon as practicable but no later than five minutes from execution. In 2022, 82.9 percent of trades were reported within one minute after a trade execution. By comparison, in 2022 more than 97.6 percent of trades were reported in five minutes or less. Accordingly, reducing the required reporting time to as soon as practicable but no later than five minutes would enhance the timeliness of up to only 2.4 percent of the trades as compared to 17.1 percent by moving to no later than one minute. FINRA believes a five-minute reporting requirement would not meaningfully advance the immediacy of information transparency for market participants.
FINRA considered several alternatives to the threshold for the
FINRA solicited comment on a proposal to reduce the 15-minute reporting timeframe to one minute in
Commenters expressed concerns that implementation of the proposal would be costly for all member firms,
To address these concerns, as described above, FINRA is proposing to provide an exception for members with
Commenters identified several circumstances under which the nature of the execution or reporting process may make it unfeasible to report within one minute. In particular, commenters argued that manually executed or reported trades,
With respect to commenters' concern that certain types of transactions cannot feasibly be reported within one minute, FINRA believes that the exception for manual trades included in the proposed rule change will adequately address these concerns. New Supplementary Material .09 would phase in a five-minute reporting standard for trades that involve manual intervention in the execution or reporting process. This exception would address commenters' concern that reducing the reporting timeframe to one minute would threaten the viability of manual trades. Similarly, based on feedback from commenters and outreach to members, FINRA understands that other types of trades raised by commenters, such as some allocation trades and portfolio or list trades, may involve manual intervention in either the execution or reporting process
Commenters raised additional concerns that other operational obstacles might make reporting trades within one minute unfeasible. As mentioned above, FINRA believes many of the concerns raised should be addressed with the proposed exceptions; however, other instances described by commenters do not appear to warrant an exception. For example, with respect to comments that TRACE reporting through a third-party clearing firm presents an operational obstacle to one minute reporting, FINRA has observed that 71 percent of third-party cleared trades are reported within one minute (as compared to 85 percent for self-cleared trades), and there are significant variations in trade reporting time by correspondent firms through the same third-party clearing firm, which suggests that other factors contribute to the reporting timeframe. FINRA notes that many smaller members rely on their third-party clearing firms to report trades to TRACE. Under the proposed rule change, members with “limited trading activity” would continue to be subject to a 15-minute outer limit reporting standard.
With respect to trades in securities that are not already in the member firm's security master (or on FINRA's master list), FINRA believes that the proposed rule change's exception for manual trades should help alleviate commenters' concerns. FINRA understands that setting up a security in a firm's security master (or with FINRA) typically involves manual intervention. Thus, initial trades in such securities—where manual steps must be taken to set up the security at the firm or with FINRA before the trade(s) can be booked or reported—would be subject to the phased-in five-minute reporting standard for manual trades rather than the one-minute standard. In addition, in response to commenters' concern regarding trades reportable to FINRA on the next business day, FINRA is proposing to retain a reporting timeframe of as soon as practicable but no later than within 15 minutes of when the TRACE system opens.
While some commenters argued that the benefits associated with shortening the timeframe for trade reporting have not been sufficiently explained,
FINRA recognizes that covered depository institutions will not be subject to the proposed rule change.
While the proposed rule change may lead to an increase in reporting errors, corrections, and late reporting rates, particularly at the outset as members adapt to the proposed rule change's new standards,
FINRA also believes that the extended reporting timeframes available for members with
Finally, commenters also suggested a number of alternatives to the proposal that they believed would improve the TRACE reporting regime, including implementing a phased-in approach to shortening the reporting timeframe,
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.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 498 (17 CFR 230.498) under the Securities Act of 1933 (15 U.S.C. 77a
The purpose of rule 498 is to enable a fund to provide investors with a Summary Prospectus containing key information necessary to evaluate an investment in the fund. Unlike many other federal information collections, which are primarily for the use and benefit of the collecting agency, this information collection is primarily for the use and benefit of investors. The information filed with the Commission also permits the verification of compliance with securities law requirements and assures the public availability and dissemination of the information.
Based on an analysis of fund filings, the Commission estimates that approximately 11,241 funds are using a Summary Prospectus. The Commission estimates that the annual hourly burden per fund associated with the compilation of the information required on the cover page or the beginning of the Summary Prospectus is 0.5 hours, and estimates that the annual hourly burden per fund to comply with the website posting requirement is approximately 1 hour, requiring a total of 1.5 hours per fund per year.
Estimates of the average burden hours are made solely for the purposes of the Paperwork Reduction Act and are not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms. Under rule 498, use of the Summary Prospectus is voluntary, but the rule's requirements regarding provision of the statutory prospectus upon investor request are mandatory for funds that elect to send or give a Summary Prospectus in reliance upon rule 498. The information provided under rule 498 will not be kept confidential. 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 public may view background documentation for this information collection at the following website:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Options 4, Section 3, Criteria for Underlying Securities. This Amendment No. 1 supersedes the original filing in its entirety.
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 Options 4, Section 3, Criteria for Underlying Securities, to allow the Exchange to list and trade options on iShares Bitcoin Trust (the “Trust”)
Currently, Options 4, Section 3(h) provides that securities deemed appropriate for options trading shall include shares or other securities (“Exchange-Traded Fund Shares” or “ETFs”) that are traded on a national securities exchange and are defined as an “NMS” stock under Rule 600 of Regulation NMS, and that meet certain criteria specified in Options 4, Section 3(h), including that they:
(i) represent interests in registered investment companies (or series thereof) organized as open-end management investment companies, unit investment trusts or similar entities that hold portfolios of securities and/or financial instruments, including, but not limited to, stock index futures contracts, options on futures, options on securities and indices, equity caps, collars and floors, swap agreements, forward contracts, repurchase agreements and reverse repurchase agreements (the “Financial Instruments”), and money market instruments, including, but not limited to, U.S. government securities and repurchase agreements (the “Money Market Instruments”) comprising or otherwise based on or representing investments in broad-based indexes or portfolios of securities and/or Financial Instruments and Money Market Instruments (or that hold securities in one or more other registered investment companies that themselves hold such portfolios of securities and/or Financial Instruments and Money Market Instruments) or
(ii) represent interests in a trust or similar entity that holds a specified non-U.S. currency or currencies deposited with the trust when aggregated in some specified minimum number may be surrendered to the trust or similar entity by the beneficial owner to receive the specified non-U.S. currency or currencies and pays the beneficial owner interest and other distributions on the deposited non-U.S. currency or currencies, if any, declared and paid by the trust (“Currency Trust Shares”) or
(iii) represent commodity pool interests principally engaged, directly or indirectly, in holding and/or managing portfolios or baskets of securities, commodity futures contracts, options on commodity futures contracts, swaps, forward contracts and/or options on physical commodities and/or non-U.S. currency (“Commodity Pool ETFs”) or
(iv) represent interests in the SPDR® Gold Trust, the iShares COMEX Gold Trust, the iShares Silver Trust, or the ETFS Gold Trust or
(v) represents an interest in a registered investment company (“Investment Company”) organized as an open-end management company or similar entity, that invests in a portfolio of securities selected by the Investment Company's investment adviser consistent with the Investment Company's investment objectives and policies, which is issued in a specified aggregate minimum number in return for a deposit of a specified portfolio of securities and/or a cash amount with a value equal to the next determined net asset value (“NAV”), and when aggregated in the same specified minimum number, may be redeemed at a holder's request, which holder will be paid a specified portfolio of securities and/or cash with a value equal to the next determined NAV (“Managed Fund Share”).
In addition to the aforementioned requirements, Options 4, Section 3(h)(1) and (2) must be met to list options on ETFs.
The Exchange proposes to expand the list of ETFs that are appropriate for options trading on the Exchange in Options 3, Section 4(h)(iv) to include the Trust.
The Shares are issued by the Trust, a Delaware statutory trust. The Trust operates pursuant to a trust agreement (the “Trust Agreement”) between the Sponsor, BlackRock Fund Advisors (the “Trustee”) as the trustee of the Trust and Wilmington Trust, National Association, as Delaware trustee (the “Delaware Trustee”). The Trust issues Shares representing fractional undivided beneficial interests in its net assets. The assets of the Trust consist only of bitcoin, held by a custodian on behalf of the Trust except under limited circumstances when transferred through the Trust's prime broker temporarily (described below), and cash. Coinbase Custody Trust Company, LLC (the “Bitcoin Custodian”) is the custodian for the Trust's bitcoin holdings, and maintains a custody account for the Trust (“Custody Account”); Coinbase, Inc. (the “Prime Execution Agent”), an affiliate of the Bitcoin Custodian, is the prime broker for the Trust and maintains a trading account for the Trust (“Trading Account”); and Bank of New York Mellon is the custodian for the Trust's cash holdings (the “Cash Custodian” and together with the Bitcoin Custodian, the “Custodians”) and the administrator of the Trust (the “Trust Administrator”). Under the Trust Agreement, the Trustee may delegate all or a portion of its duties to any agent, and has delegated the bulk of the day-to-day responsibilities to the Trust Administrator and certain other administrative and record-keeping functions to its affiliates and other agents. The Trust is not an investment company registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
The investment objective of the Trust is to reflect generally the performance of the price of bitcoin. The Trust seeks to reflect such performance before payment of the Trust's expenses and liabilities. The Shares are intended to constitute a simple means of making an investment similar to an investment in bitcoin through the public securities market rather than by acquiring, holding
An investment in the Shares is backed by bitcoin held by the Bitcoin Custodian on behalf of the Trust. All of the Trust's bitcoin will be held in the Custody Account, other than the Trust's bitcoin which is temporarily maintained in the Trading Account under limited circumstances,
The Exchange believes that offering options on the Trust will benefit investors by providing them with an additional, relatively lower cost investing tool to gain exposure to spot Bitcoin as well as a hedging vehicle to meet their investment needs in connection with Bitcoin products and positions. Similar to other commodity ETFs in which options may be listed on ISE (
Options on the Trust will trade in the same manner as options on other ETFs on the Exchange. Exchange Rules that currently apply to the listing and trading of all options on ETFs on the Exchange, including, for example, Rules that govern listing criteria, expirations, exercise prices, minimum increments, position and exercise limits, margin requirements, customer accounts and trading halt procedures, will apply to the listing and trading of options on the Trust on the Exchange. Today, these rules apply to options on the various commodities ETFs deemed appropriate for options trading on the Exchange pursuant to Options 4, Section 3(h)(iv).
The Exchange's initial listing standards for ETFs on which options may be listed and traded on the Exchange will apply to the Trust. The initial listing standard as set forth in Options 4, Section 3(a) provides that:
Underlying securities with respect to which put or call options 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; and (2) the security shall be characterized by a substantial number of outstanding shares that are widely held and actively traded.
Pursuant to ISE Options 4, Section 3, ETFs on which options may be listed and traded must satisfy the listing standards set forth in Options 4, Section 3(h). Specifically, the Trust must meet either:
(1) the criteria and guidelines for underlying securities set forth in Options 4, Section 3(h), or
(2) it must be available for creation or redemption each business day from or through the issuing trust, investment company, commodity pool or other entity in cash or in kind at a price related to net asset value, and the issuer is obligated to issue Exchange-Traded Fund Shares in a specified aggregate number even if some or all of the investment assets and/or cash required to be deposited have not been received by the issuer, subject to the condition that the person obligated to deposit the investment assets has undertaken to deliver them as soon as possible and such undertaking is secured by the delivery and maintenance of collateral consisting of cash or cash equivalents satisfactory to the issuer of the Exchange-Traded Fund Shares, all as described in the Exchange-Traded Fund Shares' prospectus, or the Exchange-Traded Fund Shares must be based on international or global indexes, or portfolios that include non-U.S. securities, and meet other criteria.
Options on the Trust will also be subject to the Exchange's continued listing standards for options on ETFs set forth in Options 4, Section 4(g). Specifically, options approved for trading pursuant to Options 4, Section 3(h) will not be deemed to meet the requirements for continued approval, and the Exchange shall not open for trading any additional series of option contracts of the class covering such ETFs if the ETFs are delisted from trading as provided in subparagraph (b)(5) of Options 4, Section 4
(1) in the case of options covering Exchange-Traded Fund Shares approved pursuant to Options 4, Section 3(h)(A)(i), in accordance with the terms of subparagraphs (b)(1), (2), (3) and (4) of Options 4, Section 4;
(2) in the case of options covering Fund Shares approved pursuant to Options 4, Section 3(h)(A)(ii),
(3) the value of the index or portfolio of securities or non-U.S. currency, portfolio of
(4) such other event occurs or condition exists that in the opinion of the Exchange makes further dealing in such options on the Exchange inadvisable.
Options on the Trust would be physically settled contracts with American-style exercise.
Pursuant to Options 4, Section 5(d), which governs strike prices of series of options on ETFs, the interval between strike prices of series of options on ETFs approved for options trading pursuant to Section 3(h) of Options 4 shall be fixed at a price per share which is reasonably close to the price per share at which the underlying security is traded in the primary market at or about the same time such series of options is first open for trading on the Exchange, or at such intervals as may have been established on another options exchange prior to the initiation of trading on the Exchange. With respect to the Short Term Options Series or Weekly Program, during the month prior to expiration of an option class that is selected for the Short Term Option Series Program, the strike price intervals for the related non-Short Term Option (“Related non-Short Term Option”) shall be the same as the strike price intervals for the Short Term Option.
Position and exercise limits for options on ETFs, including options on the Trust, are determined pursuant to Options 9, Sections 13 and 15, respectively. Position and exercise limits for ETFs options vary according to the number of outstanding shares and the trading volumes of the underlying ETF over the past six months, where the largest in capitalization and the most frequently traded ETFs have an option position and exercise limit of 250,000 contracts (with adjustments for splits, re-capitalizations, etc.) on the same side of the market; and smaller capitalization ETFs have position and exercise limits of 200,000, 75,000, 50,000 or 25,000 contracts (with adjustments for splits, re-capitalizations, etc.) on the same side of the market. Further, Options 6C, Section 3, which governs margin requirements applicable to the trading of all options on the Exchange including options on ETFs, will also apply to the trading of the Trust options.
The Exchange represents that the same surveillance procedures applicable to all other options on other ETFs currently listed and traded on the Exchange will apply to options on the Trust. Also, the Exchange represents that it has the necessary systems capacity to support the new option series. The Exchange believes that its existing surveillance and reporting safeguards are designed to deter and detect possible manipulative behavior which might potentially arise from listing and trading options on ETFs, including the proposed Trust options.
The Exchange has also analyzed its capacity and represents that it believes the Exchange and the Options Price Reporting Authority or “OPRA” have the necessary systems capacity to handle the additional traffic associated with the listing of new series that may result from the introduction of options on the Trust up to the number of expirations currently permissible under the Exchange Rules. Because the proposal is limited to one class, the Exchange believes any additional traffic that may be generated from the introduction of the Trust options will be manageable.
Finally, the Exchange proposes a technical amendment to Options 4, Section 3(h)(iv) to amend the name “ETFS Gold Trust” to “Aberdeen Standard Physical Gold Trust.” In 2018 this ETF was renamed.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
In particular, the Exchange believes that the proposal to list and trade options on the Trust will remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors because offering options on the Trust will provide investors with a greater opportunity to realize the benefits of utilizing options on an ETF based on spot bitcoin, including cost efficiencies and increased hedging strategies. The Exchange believes that offering options on a competitively priced ETF based on spot bitcoin will benefit investors by providing them with an additional, relatively lower cost risk management tool allowing them to manage, more easily, their positions, and associated risks, in their portfolios in connection with exposure to spot bitcoin. Today, the Exchange lists options on other commodity ETFs structured as a trust, which essentially offer the same objectives and benefits to investors, and for which the Exchange has not identified any issues with the continued listing and trading of options on those ETFs.
The Exchange also believes the proposal to permit options on the Trust will remove impediments to and perfect the mechanism of a free and open market and a national market system, because options on the Trust will comply with current Exchange Rules. Options on the Trust must satisfy the initial listing standards and continued listing standards currently in the Exchange Rules, applicable to options on all ETFs, including options on other commodity ETFs already deemed appropriate for options trading on the Exchange pursuant to Options 4, Section 3(h)(iv). Further, Exchange Rules that currently govern the listing and trading of options on ETFs, including permissible expirations, strike prices, minimum increments, position and exercise limits, and margin requirements, will govern the listing and trading of options on the Trust. The Exchange represents that it has the necessary systems capacity to support options on the Trust. The Exchange believes that its existing surveillance and reporting safeguards are designed to deter and detect possible manipulative behavior which might arise from listing and trading options on ETFs, including the Trust options.
Finally, the Commission has previously approved the listing and trading of options on other commodity ETFs structured as a trust, such as SPDR® Gold Trust,
Further, the Exchange's proposal to amend the name “ETFS Gold Trust” to “Aberdeen Standard Physical Gold Trust” in Options 4, Section 3(h)(iv) is consistent with the Act and the protection of investors as this amendment reflects the current name of this product. Also, the Exchange's proposal to correct two citations in Options 4, Section 4(g)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act as options on the Trust will be subject to initial listing standards and continued listing standards the same as other options on ETFs listed on the Exchange. Further, options on the Trust will be subject to Exchange Rules that currently govern the listing and trading of options on ETFs, including permissible expirations, strike prices, minimum increments, position and exercise limits, and margin requirements. Options on the Trust will be equally available to all market participants who wish to trade such options. Also, and as stated above, the Exchange already lists options on other commodity ETFs structured as a trust.
The Exchange does not believe that the proposal to list and trade options on the Trust will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the extent that permitting options on the Trust to trade on the Exchange may make the Exchange a more attractive marketplace to market participants, such market participants are free to elect to become market participants on the Exchange. Additionally, other options exchanges are free to amend their listing rules, as applicable, to permit them to list and trade options on the Trust. The Exchange believes that the proposed rule change may relieve any burden on, or otherwise promote, competition as it is designed to increase competition for order flow on the Exchange in a manner that is beneficial to investors by providing them with a lower-cost option to hedge their investment portfolios. The Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues that offer similar products. Ultimately, the Exchange believes that offering options on the Trust for trading on the Exchange will promote competition by providing investors with an additional, relatively low-cost means to hedge their portfolios and meet their investment needs in connection with spot bitcoin prices and bitcoin related products and positions.
Finally, the Exchange's proposal to amend the name “ETFS Gold Trust” to “Aberdeen Standard Physical Gold Trust” in Options 4, Section 3(h)(iv) does not impose an undue burden on competition as this amendment reflects the current name of this product. Also, the Exchange's proposal to correct two
No written comments were either solicited or received.
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, as modified by Amendment No. 1, 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 with the Securities and Exchange Commission (“Commission”) a proposed rule change to amend the Fee Schedule on the BOX Options Market LLC (“BOX”) options facility. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's internet 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 Section IV.A (Non-Auction Transactions) of the BOX Fee Schedule. The Exchange proposes to decrease Professional Customer and Broker Dealer maker fees on transactions in Penny Interval Classes and SPY where the contra party is a Public Customer.
In Section IV.A of the BOX Fee Schedule, fees and credits for electronic Non-Auction Transactions are assessed depending on three factors: (i) the account type of the Participant submitting the order; (ii) whether the Participant is a liquidity provider or liquidity taker; and (iii) the account type of the contra party. Currently, when a Professional Customer or Broker Dealer
The Exchange notes that the proposed fees are comparable in amount with the fees at several other exchanges.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act, in general, and Section 6(b)(4) and 6(b)(5) of the Act,
The Exchange notes that it operates in a highly competitive environment. Indeed, there are currently 17 registered options exchanges that trade options. Based on publicly available information, no single options exchange has more than 17% of the market share and currently the Exchange represents only approximately 7% of the market share.
The Exchange believes the proposed electronic Non-Auction Transaction fees for Professional Customer and Broker Dealer Penny Interval Class and SPY transactions contra to Public Customers are reasonable as the proposed fees are comparable to similar transaction fees assessed at other exchanges.
The Exchange believes that assessing Professional Customers and Broker Dealers $0.50 for Penny Interval Class and SPY electronic Non-Auction Transactions contra to Public Customers is equitable and not unfairly discriminatory. The Exchange notes that Market Maker maker fees assessed for Penny Interval Classes contra to Public Customers for electronic Non-Auction Transactions are $0.50 and Market Maker maker fees assessed for SPY contra to Public Customers for electronic Non-Auction Transactions are $0.00. Thus, Professional Customer, Broker Dealer, and Market Maker maker fees in Penny Interval Classes contra to Public Customers for electronic Non-Auction Transactions will be the same.
The Exchange notes that Professional Customer and Broker Dealer maker fees for Penny Interval Classes and SPY contra to Public Customers for electronic Non-Auction Transactions will remain higher than Public Customer transactions where the contra party is another Public Customer. The securities markets generally, and BOX in particular, have historically aimed to improve markets for investors and develop various features within the market structure for Public Customer benefit. Accordingly, the Exchange believes that charging a lower fee for Public Customers compared to other account types on BOX is appropriate and not unfairly discriminatory. The Exchange believes that charging a lower fee for Public Customers will attract a high level of Public Customer order flow and create liquidity which will ultimately benefit all Participants trading on BOX.
The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can shift order flow and discontinue or reduce use of certain categories of products in response to fee changes. Accordingly, competitive forces constrain options exchange transaction fees. Stated differently, changes to exchange transaction fees can have a direct effect on the ability of an exchange to compete for order flow. The Exchange believes the proposed changes are a reasonable attempt to effectively compete for electronic non-auction Professional Customer and Broker Dealer orders. The Exchange believes that the proposed change may incentivize Professional Customer and Broker Dealer order flow and, in turn, may make BOX a more competitive venue for order execution to the benefit of all Participants. Finally, the Exchange believes the proposed changes are consistent with the Act because, to the extent the modifications permit the Exchange to continue to attract greater volume and liquidity, the proposed changes would improve BOX's overall competitiveness and strengthen market quality for all 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 the proposed changes to Professional Customer and Broker Dealer maker fees for Penny Interval Classes and SPY contra to Public Customers in the electronic Non-Auction Transactions fee structure will not impose a burden on intramarket competition as BOX believes that the changes will result in Professional Customers and Broker Dealers being charged appropriately for their Penny Interval Class and SPY maker
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and rebates to remain competitive with other exchanges. Because competitors are free to modify their own fees and rebates in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee or rebate changes in this market may impose any burden on competition is extremely limited. For the reasons described above, the Exchange believes that the proposed rule change will encourage intermarket competition.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Exchange Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend the rule change if it appears to the Commission that the action is necessary or appropriate in the public interest, for the protection of investors, or would otherwise further 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 with the Securities and Exchange Commission (“Commission”) a proposed rule change to amend the Fee Schedule on the BOX Options Market LLC (“BOX”) options facility. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's internet 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 Section IV.A, Non-Auction Transactions, of the BOX Fee Schedule. Specifically, the Exchange proposes to establish separate fees and rebates on electronic Non-Auction Transactions for options overlying the INVESCO QQQ Trust
Currently, in Section IV.A of the BOX Fee Schedule, fees and credits for electronic Non-Auction Transactions are assessed depending on three factors: (i) the account type of the Participant submitting the order; (ii) whether the Participant is a liquidity provider or liquidity taker; and (iii) the account type of the contra party.
The Exchange now proposes to assess separate fees for QQQ and IWM electronic Non-Auction Transactions. Currently, when a Public Customer QQQ or IWM order is a liquidity taker contra to a Professional Customer, Broker Dealer, or a Market Maker, the Public Customer is provided a $0.20 rebate. The Exchange now proposes to increase Public Customer taker fees on QQQ and IWM electronic Non-Auction Transactions. Accordingly, when a Public Customer QQQ or IWM order is a liquidity taker contra to a Professional Customer, Broker Dealer, or a Market Maker, the Public Customer will be assessed $0.10. Further, under this proposal, Public Customer QQQ or IWM orders that interact with a Public Customer QQQ or IWM order will continue to not be assessed a fee.
Further, when a Professional Customer or Broker Dealer QQQ or IWM order interacts with a Public Customer QQQ or IWM order, the Exchange proposes to assess a $0.50 fee when making liquidity or $0.50 when taking liquidity. When a Professional Customer or Broker Dealer QQQ or IWM order interacts with a Professional Customer, Broker Dealer, or Market Maker QQQ or IWM order, the Exchange proposes to assess $0.15 for making liquidity or $0.50 for taking liquidity. The Exchange notes that these fees are the same as fees currently assessed to QQQ and IWM transactions as QQQ and IWM are Penny Interval Classes.
When a Market Maker QQQ or IWM order interacts with a Public Customer QQQ or IWM order, the Exchange proposes to assess $0.00 when making liquidity or $0.50 when taking liquidity. The Exchange notes that assessing Market Maker QQQ and IWM orders that interact with Public Customers $0.00 for making liquidity is a fee decrease from the current fee, which is $0.50. Lastly, when a Market Maker QQQ or IWM order interacts with a Professional Customer, Broker Dealer, or Market Maker QQQ or IWM order, the Exchange proposes to assess no fee when making liquidity or $0.50 when taking liquidity, which is the same as the currently assessed fee for QQQ and IWM orders.
The proposed fee structure for QQQ and IWM electronic Non-Auction Transactions will be as follows:
For example, under the proposal, if a Public Customer submitted a QQQ order to the BOX Book (making liquidity), the Public Customer would not be charged a fee if the order interacted with a Market Maker's QQQ order and the Market Maker (taking liquidity) would be charged $0.50.
The Exchange also proposes to amend Section IV.A.1 of the Fee Schedule, Tiered Volume Rebate for Non-Auction Transactions. Specifically, the Exchange proposes to adopt separate rebates for QQQ and IWM transactions for Public Customers in Non-Auction Transactions. For Tier 1, where percentage thresholds of Public
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act, in general, and Section 6(b)(4) and 6(b)(5) of the Act,
The Exchange's proposal to adopt separate fees for QQQ and IWM electronic Non-Auction Transactions is reasonable, equitable, and not unfairly discriminatory because pricing by symbol is a common practice on many U.S. options exchanges as a means to incentivize order flow to be sent to an exchange for execution in the most actively traded options classes. The Exchange notes that the proposed fees are identical to the fees currently assessed for SPY transactions on BOX. The Exchange also notes that other exchanges assess separate fees and credits for QQQ and IWM transactions.
The Exchange believes the proposed electronic Non-Auction Transaction fees for Public Customer QQQ and IWM transactions are reasonable. Under the proposal, Public Customers will never pay a fee for their QQQ or IWM Non-Auction Transactions when making liquidity against Public Customer or Non-Public Customer QQQ or IWM orders. The Exchange notes that Public Customers are not currently assessed a fee for their QQQ or IWM Non-Auction Transactions when making liquidity against Public Customer or Non-Public Customer QQQ or IWM orders. The securities markets generally, and BOX in particular, have historically aimed to improve markets for investors and develop various features within the market structure for Public Customer benefit. The Exchange believes that assessing no fee will attract Public Customer order flow, which provides increased opportunities to interact with Public Customer order flow to the benefit of all Participants. Accordingly, the Exchange believes that charging no fee for Public Customers when making liquidity for their QQQ and IWM transactions is appropriate and not unfairly discriminatory.
Under the proposal, Public Customer taker fees for QQQ and IWM electronic Non-Auction Transactions when taking liquidity against Professional Customers, Broker Dealers, or Market Makers will be $0.10, which is a fee increase from what is currently assessed. The Exchange believes the proposed electronic Non-Auction transaction fees for Public Customer QQQ and IWM transactions are reasonable as the proposed fees are lower than similar transaction fees assessed at other exchanges.
The Exchange believes further that charging a fee of $0.10 to Public Customers for QQQ and IWM electronic Non-Auction Transactions is equitable and not unfairly discriminatory. The Exchange notes that Professional Customer, Broker Dealer, and Market Maker taker fees for QQQ and IWM electronic Non-Auction Transactions when taking liquidity against any contra party are $0.50 while Public Customers will be assessed $0.10 when taking liquidity against Professional Customers, Broker Dealers, and Market Makers. The Exchange again notes that the securities markets generally, and BOX in particular, have historically aimed to improve markets for investors and develop various features within the market structure for Public Customer benefit. The Exchange believes that assessing lower fees for Public Customers compared to other account types will attract Public Customer order flow, which provides increased opportunities to interact with Public Customer order flow to the benefit of all Participants. Accordingly, the Exchange believes that charging a lower fee for Public Customers for their QQQ and IWM transactions compared to other account types on BOX is appropriate and not unfairly discriminatory.
The Exchange believes that charging Professional Customers and Broker Dealers higher fees than Public Customers for QQQ and IWM electronic Non-Auction Transactions is equitable and not unfairly discriminatory.
The Exchange believes it is reasonable, equitable and not unfairly discriminatory to assess no maker fee for BOX Market Makers trading against a Public Customer, Professional Customer, Broker Dealer, or Market Maker for QQQ and IWM electronic Non-Auction Transactions. The Exchange notes that under this proposal Market Makers making liquidity against a Public Customer for QQQ and IWM electronic Non-Auction Transactions will not be assessed a fee, which is a fee decrease from what is currently assessed. As a result of this change, Market Makers may tighten their spreads in QQQ and IWM and therefore will increase market quality in QQQ and IWM options. Specifically, Market Makers can provide higher volumes of liquidity and lowering certain fees will help attract a higher level of Market Maker order flow to the BOX Book and create liquidity. As such, the Exchange believes it is appropriate that Market Makers be charged lower transaction fees than Professional Customers and Broker Dealers for QQQ and IWM electronic Non-Auction Transactions.
The Exchange believes that the proposed Public Customer QQQ and IWM rebates in the Tiered Volume Rebate for Non-Auction Transactions structure are reasonable, equitable, and not unfairly discriminatory. The proposed volume thresholds and applicable rebates for QQQ and IWM transactions are meant to incentivize Public Customers to post orders on BOX to obtain the benefit of the rebate, which will in turn benefit all market participants by increasing liquidity on BOX. The Exchange notes that the proposed QQQ and IWM rebates are identical to the rebates that are currently assessed to SPY transactions today.
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 the proposed change will not impose a burden on intramarket competition as BOX believes that the changes will result in the Participants being charged appropriately for their QQQ and IWM transactions. Specifically, the change to eliminate Market Maker maker fees when contra to Public Customers is designed to incentivize order flow to BOX by incentivizing Market Makers to provide tighter spreads thus improving market quality to the benefit of all BOX Participants. Additionally, the Exchange believes that eliminating Public Customer credits when taking liquidity contra to a Professional Customer, Broker Dealer, or Market Maker and instead assessing a fee will not disincentivize the sending of such orders because BOX's electronic Non-Auction Transactions fee structure is designed to attract competitive quotes and orders, which results in liquid markets that Public Customers may find attractive. The Exchange notes further that submitting an order is entirely voluntary and Participants can determine which type of order they wish to submit, if any, to BOX. Further, the Exchange believes the proposed changes will not impose a burden on intermarket competition as another exchange currently assesses separate fees for QQQ and IWM transactions.
The Exchange believes the addition of QQQ and IWM to the rebate structure for Public Customer electronic Non-Auction Transactions will not impose a burden on competition among various Exchange Participants. The Exchange believes that the proposed changes will result in Public Customers being rebated appropriately for their QQQ and IWM transactions. Further, the Exchange believes that this proposal will enhance competition between exchanges because it is designed to allow BOX to better compete with other exchanges for this order flow.
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Exchange Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend the rule change if it appears to the Commission that the action is necessary or appropriate in the public interest, for the protection of investors, or would otherwise further the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
SR-BOX-2024-05 on the subject line.
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Exchange Rule 402, Criteria for Underlying Securities.
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 402, Criteria for Underlying Securities,
Current Exchange Rule 402(i)(4) provides that, subject to certain other criteria set forth in that Rule, securities deemed appropriate for options trading include ETFs that represent certain types of interests,
Bitcoin ETPs are bitcoin-backed commodity ETPs structured as trusts.
The Exchange's initial listing standards for ETFs on which options may be listed and traded on the Exchange will apply to the Bitcoin ETPs. The Exchange expects Bitcoin ETPs to satisfy the initial listing standards as set forth in Exchange Rule 402(a) and Exchange Rule 402(i). Pursuant to Exchange Rule 402(a), a security (which includes ETFs) on which options may be listed and traded on the Exchange must be duly registered (with the Commission) and be an NMS stock (as defined in Rule 600 of Regulation NMS under the Act,) and be characterized by a substantial number of outstanding shares that are widely held and actively traded.
Options on Bitcoin ETPs will also be subject to the Exchange's continued listing standards set forth in Exchange Rule 403(g), for ETFs deemed appropriate for options trading pursuant to Exchange Rule 402(i). Specifically, Exchange Rule 403(g) provides that ETFs that were initially approved for options trading pursuant to Exchange Rule 402(i) shall be deemed not to meet the requirements for continued approval, and the Exchange shall not open for trading any additional series of option contracts of the class covering that such ETFs, if the ETFs are delisted from trading pursuant to Exchange Rule 403(b)(4), are halted or suspended from trading in their primary market. Additionally, options on ETFs may be subject to the suspension of opening transactions in any of the following circumstances: (1) in the case of options covering ETFs approved for trading under Exchange Rule 402(i)(5)(i)(A), in accordance with the terms of paragraphs (b)(1), (2), and (3) of Exchange Rule 403; (2) in the case of options covering ETFs approved for trading under Exchange Rule 402(i)(5)(i)(B), following the initial twelve-month period beginning upon the commencement of trading in the ETFs on a national securities exchange and are defined as an NMS stock [sic], there are fewer than 50 record and/or beneficial holders of such ETFs for 30 or more consecutive trading days; (3) the value of the index or portfolio of securities, non-U.S. currency, or portfolio of commodities including commodity futures contracts, options on commodity futures contracts, swaps, forward contracts and/or options on physical commodities and/or financial instruments and money market instruments on which the Units are based is no longer calculated or available; or (4) such other event shall occur or condition exist that in the opinion of the Exchange makes further dealing in such options on the Exchange inadvisable.
Options on a Bitcoin ETP will be physically settled contracts with American-style exercise.
Pursuant to Exchange Rule 404, Interpretation and Policy .06, which governs strike prices of series of options on Trust Issued Receipts, the interval of strikes prices for series of options Bitcoin ETPs will be $1 or greater when the strike price is $200 or less and $5 or greater where the strike price is over $200.
Bitcoin ETP options will trade in the same manner as any other ETF options on the Exchange. The Exchange Rules that currently apply to the listing and trading of all ETFs options on the Exchange, including, for example, Exchange Rules that govern listing criteria, expiration and exercise prices, minimum increments, position and exercise limits, margin requirements, customer accounts and trading halt procedures will apply to the listing and trading of Bitcoin ETPs on the Exchange in the same manner as they apply to other options on all other ETFs that are listed and traded on the Exchange, including the precious-metal backed commodity ETFs already deemed appropriate for options trading on the Exchange pursuant to current Exchange Rule 402(i)(4).
Position and exercise limits for options on ETFs, including options on Bitcoin ETPs, are determined pursuant to Exchange Rules, Chapter III, Business Conduct. Position and exercise limits for ETFs options vary according to the number of outstanding shares and the trading volumes of the Underlying Security
The Exchange represents that the same surveillance procedures applicable to all other options on ETFs currently listed and traded on the Exchange will apply to options on Bitcoin ETPs, and that it has the necessary systems capacity to support the new option series. The Exchange believes that its existing surveillance and reporting safeguards are designed to deter and detect possible manipulative behavior which might potentially arise from listing and trading ETFs options, including precious metal-commodity backed ETFs options, as proposed. Also, the Exchange may obtain information from CME Group Inc.'s designated contract markets that are members of the Intermarket Surveillance Group related to any financial instrument that is based, in whole or in part, upon an interest in or performance of bitcoin, as applicable.
The Exchange has also analyzed its capacity and represents that it believes the Exchange and OPRA have the necessary systems capacity to handle the additional traffic associated with the listing of new series that may result from the introduction of options on Bitcoin ETPs up to the number of expirations currently permissible under the Rules. Because the proposal is limited to ETFs on a single commodity, the Exchange believes any additional traffic that may be generated from the introduction of Bitcoin ETP options will be manageable.
The Exchange believes that offering options on Bitcoin ETPs will benefit investors by providing them with an additional, relatively lower cost investing tool to gain exposure to the price of bitcoin and [sic] hedging vehicle to meet their investment needs in connection with bitcoin-related products and positions. The Exchange expects investors will transact in options on Bitcoin ETPs in the unregulated over-the-counter (“OTC”) options market (if the Commission approves Bitcoin ETPs for exchange-trading),
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that the proposal to list and trade options on Bitcoin ETPs will remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors because offering options on Bitcoin ETPs will provide investors with an opportunity to realize the benefits of utilizing options on a bitcoin-based ETP, including cost efficiencies and increased hedging strategies. The Exchange believes that offering Bitcoin ETP options will benefit investors by providing them with a relatively lower-cost risk management tool, which will
The Exchange also believes the proposed rule change will remove impediments to and perfect the mechanism of a free and open market and a national market system, because it is consistent with current Exchange Rules, previously filed with the Commission. Options on Bitcoin ETPs must satisfy the initial listing standards and continued listing standards currently in the Exchange Rules, applicable to options on all ETFs, including ETFs that hold other commodities already deemed appropriate for options trading on the Exchange. Bitcoin ETP options will trade in the same manner as any other ETFs options—the same Exchange Rules that currently govern the listing and trading of all ETsF [sic] options, including permissible expirations, strike prices and minimum increments, and applicable position and exercise limits and margin requirements, will govern the listing and trading of options on Bitcoin ETPs in the same manner.
The Exchange represents that it has the necessary systems capacity to support the new ETF option series. The Exchange believes that its existing surveillance and reporting safeguards are designed to deter and detect possible manipulative behavior which might arise from listing and trading ETF options, including Bitcoin ETP options.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act as Bitcoin ETPs would need to satisfy the initial listing standards set forth in the Exchange Rules in the same manner as any other ETFs before the Exchange could list options on them. Additionally, Bitcoin ETP options will be equally available to all market participants who wish to trade such options. The Exchange Rules currently applicable to the listing and trading of options on ETFs on the Exchange will apply in the same manner to the listing and trading of all options on Bitcoin ETPs. Also, and as stated above, the Exchange already lists options on other commodity-based ETFs.
The Exchange does not believe that the proposal to list and trade options on Bitcoin ETPs will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the extent that the advent of Bitcoin ETP options trading on the Exchange may make the Exchange a more attractive marketplace to market participants at other exchanges, such market participants are free to elect to become market participants on the Exchange. Additionally, other options exchanges are free to amend their listing rules, as applicable, to permit them to list and trade options on Bitcoin ETPs. Additionally, the Exchange notes that listing and trading Bitcoin ETP options on the Exchange will subject such options to transparent exchange- based rules as well as price discovery and liquidity, as opposed to alternatively trading such options in the OTC market. The Exchange believes that the proposed rule change may relieve any burden on, or otherwise promote, competition as it is designed to increase competition for order flow on the Exchange in a manner that is beneficial to investors by providing them with a lower-cost option to hedge their investment portfolios. The Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues that offer similar products. Ultimately, the Exchange believes that offering Bitcoin ETP options for trading on the Exchange will promote competition by providing investors with an additional, relatively low-cost means to hedge their portfolios and meet their investment needs in connection with bitcoin prices and bitcoin-related products and positions on a listed options exchange.
Written comments were neither solicited nor received.
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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”),
This proposed rule change would codify OCC's process for adjusting certain parameters in its proprietary system for calculating margin requirements during periods when the products OCC clears and the markets it serves experience high volatility. Proposed changes to OCC's Margin Policy are submitted in Exhibit 5 to File No. SR-OCC-2024-001. Material proposed to be added is marked by underlining and material proposed to be deleted is marked with strikethrough text. All terms with initial capitalization that are not otherwise defined herein have the same meaning as set forth in the OCC By-Laws and Rules.
In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
OCC is the sole clearing agency for standardized equity options listed on national securities exchanges registered with the Commission. OCC also clears certain stock loan and futures transactions. In its role as a clearing agency, OCC guarantees the performance of its Clearing Members for all transactions cleared by OCC by becoming the buyer to every seller and the seller to every buyer (or the lender to every borrower and the borrower to every lender, in the case of stock loan transactions). These clearing activities could expose OCC to financial risks if a Clearing Member fails to fulfil its obligations to OCC. In its role as guarantor for all transactions cleared through OCC, one of the more material risks related to a Clearing Member's failure to perform is credit risk arising from the activity of the Clearing Members whose performance OCC guarantees. OCC manages these financial risks through financial safeguards, including the collection of margin collateral from Clearing Members designed to, among other things, address the market risk associated with a Clearing Member's positions during the period of time OCC has determined it would take to liquidate those positions.
OCC has established a proprietary system, the System for Theoretical Analysis and Numerical Simulation (“STANS”), that runs various models used to calculate each Clearing Member's margin requirements. One of OCC's margin models generates variance forecasts for the returns on individual equity securities, the result of which OCC then includes as one of the inputs to the margin calculation. As discussed in more detail below, OCC has observed that this particular model may produce results that are “procyclical,” which means that changes in margin requirements produced by the model may be positively correlated with the overall state of the market and, if not appropriately addressed, could threaten the stability of its members during periods of heightened volatility.
Regulations applicable to OCC require it to take certain measures with respect to its margin models during periods of time when the products cleared or markets served display high volatility. For example, the SEC's Standards for Covered Clearing Agencies require OCC to establish policies and procedures related to the review of OCC's model parameters
To mitigate procyclical margin requirements during periods when OCC's cleared products or the markets its serves experience high volatility, OCC has established regular and high volatility control settings under its margin methodology. OCC's price return model employs bounds (
To determine when implementation of high volatility control settings may be appropriate, OCC monitors the volatility of the products it clears and the markets it serves. Based on the results of this monitoring, OCC may determine to implement high volatility control settings for those model parameters. Under OCC's margin methodology, these high volatility control settings may be applied to individual securities, which are among several “risk factors” under OCC's margin methodology, or globally across a class of risk factors (
OCC previously described its use of high volatility control settings within STANS in its filing to establish its STANS Methodology Description.
STANS is OCC's proprietary risk management system for calculating Clearing Member margin requirements.
Forecasted returns on individual risk factors are an input to OCC's calculation of margin requirements. A “risk factor” within STANS is a product or attribute whose historical data is used to estimate and simulate the risk for an associated product. Risk factors include the returns on individual equity securities, returns on equity indexes, and returns on implied volatility risk factors, among others.
OCC uses a GARCH
To mitigate such procyclicality, OCC also applies numerical constraints to certain statistical parameters that inform the model's reaction to market volatility. Specifically, the GARCH model uses statistical alpha (α),
OCC refers to the constraints applicable under normal market conditions as “regular” control settings. The STANS Methodology Description further provides that OCC maintains projections of various market conditions in which pre-determined constraints (
OCC has implemented global settings on only a few occasions. For example, OCC implemented global control settings for equities, indexes, volatility-based products and short ETF products from March 9, 2020 until April 9, 2020 in connection with the market volatility associated with the onset of the COVID-19 pandemic and on January 27, 2021 for volatility-based products in connection with market volatility caused by the so-called “meme stock” episode. On March 9, 2020, for example, when the SPX experienced a return of approximately -7.5%, coverage for SPX options under regular control settings would have increased from long coverage
OCC has implemented idiosyncratic control settings for individual risk factors more frequently.
In general, OCC has not observed backtesting exceedances attributable to the implementation of global or idiosyncratic volatility control settings. Currently, OCC monitors margin sufficiency at the Clearing Member account level to identify backtesting exceedances. Account exceedances are investigated to determine the cause of the exceedance, including whether the exceedance can be attributed to the implementation of high volatility control settings. No account level exceedance has been attributed to the implementation of high volatility control settings. OCC also performs model backtesting on all risk factors with listed derivatives or stock loan positions, or securities pledged as collateral within Clearing Member accounts, including for risk factors subject to high volatility control settings. Model backtesting has not identified an issue with the adequacy of margin coverage associated with the implementation of idiosyncratic control settings. OCC also conducted instrument-level backtesting over a two-year time horizon on securities for which idiosyncratic control settings were implemented. Of the 14 out of 244 securities for which 2-day expected shortfall coverages was less than 99%, OCC found that the coverages with regular control settings would not have been significantly different.
OCC proposes to amend its Margin Policy to add a new section
First, OCC proposes to amend the Margin Policy to add a subsection under the new control settings section that would address how OCC reviews and sets the regular and high volatility control sets (
OCC currently conducts daily monitoring for high market volatility and idiosyncratic price moves for individual securities against thresholds that, if breached, would require escalation to appropriate
While these thresholds are set in accordance with the Clearing Fund Methodology Policy with respect to its stress testing procedures, OCC uses the same thresholds as triggers for review of its risk-based margin system, including (1) more frequent sensitivity analysis of its margin model and a review of OCC's parameters and assumptions for backtesting, and (2) with respect to the high volatility threshold, escalation to the MRWG for consideration of whether to implement global control settings. However, unlike the Clearing Fund Methodology Policy, the Margin Policy does not currently reference how the thresholds are set. As proposed to be amended, the “Margin Monitoring” section of the Margin Policy would be amended to add a discussion of the CCA Monitoring Thresholds.
To monitor for volatility experienced by individual risk factors that may merit implementing idiosyncratic control settings, the Margin Policy would require FRM to monitor securities against thresholds for idiosyncratic price moves that would be established in its procedures (“Idiosyncratic Thresholds”).
When the monitoring thresholds discussed above are breached, appropriate decisionmakers at OCC determine whether to implement idiosyncratic or global control settings. Specifically, for breaches of the CCA Monitoring Threshold for high volatility, the Margin Policy would require that FRM escalate the matter to the MRWG and make a recommendation as to whether global control settings should be applied to all risk factors or a class of risk factors. The Margin Policy would require MRWG approval to implement global control settings. In making that determination, the Margin Policy would describe how MRWG would review coverage rates under potential control settings generated by taking a weighting of the bounds for regular and high volatility control sets. The Margin Policy would further require that MRWG make this determination considering factors including, but not limited to, which blended control value sets generate coverage levels that converge with the implied volatility of the SPX.
The Margin Policy would also provide for how OCC would revert back to regular control settings after having implemented global control settings. Such reversion would also require MRWG approval. The Margin Policy would further provide that when making a determination that market volatility has decreased to a level where global control settings are no longer required, the MRWG would consider factors including, but not limited to, whether SPX coverage rates produced under regular control settings have converged with the initial coverage rates when global control settings were first implemented.
With respect to breaches of the Idiosyncratic Thresholds, the Margin Policy would provide that FRM maintains authority to implement idiosyncratic control settings for an individual risk factor. Implementation of such idiosyncratic high volatility control settings would require approval of an FRM Officer.
Finally, the Margin Policy would provide for reversion from idiosyncratic control settings to regular control settings. Specifically, the Margin Policy would provide that generally, an FRM Officer will approve such reversion when the coverage rates under the regular control set converges with the initial coverage rate when idiosyncratic control settings were first implemented or when the coverage rates decline to or below the coverage rate under the Idiosyncratic Thresholds that triggered the idiosyncratic control settings.
OCC believes that the proposed rule change is consistent with Section 17A of the Exchange Act
OCC believes that the proposed changes are also consistent with SEC Rule 17Ad-22(e)(6), which requires, in part, that a covered clearing agency establish, implement, maintain and enforce written policies and procedures reasonably designed to cover its credit exposures to its participants by establishing a risk-based margin system that, at a minimum, considers, and produces margin levels commensurate with, the risks and particular attributes of each relevant product, portfolio, and market.
SEC Rule 17Ad-22(e)(6) further requires that a covered clearing agency's policies and procedures be reasonably designed to monitoring its risk-based margin system on an ongoing basis, including by conducting a review of its parameters during periods of time when the products cleared or markets served display high volatility, report the results to appropriate decisionmakers, and use the results to evaluate the adequacy of and adjust its model parameters.
In addition, OCC believes that proposed changes to promote aspects of the high volatility control setting process to OCC's rule-filed Margin Policy are consistent with Section 19(b) of the Exchange Act
OCC further believes that other internal procedures and technical documents concerning the execution of the high volatility control settings would be reasonably and fairly implied by its rules, as amended—including the regular and high volatility control sets, the thresholds used to escalate price movements and market volatility to appropriate decisionmakers to consider implementing high volatility control settings, and the method for reviewing and updating those control sets and thresholds based on the latest market data.
For the above reasons, OCC believes that the proposed rule change is consistent with Section 17A of the Exchange Act
Section 17A(b)(3)(I) of the Exchange Act
While high volatility control settings implemented under the proposed changes may impact different accounts to a greater or lesser degree depending on the composition of positions in each account, OCC does not believe that such impacts would impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act. As discussed above, OCC is obligated under the Exchange Act and the regulations thereunder to review its model parameters during periods of time when the products cleared or markets served display high volatility, report the results to appropriate decisionmakers, and use the results to evaluate the adequacy of and adjust its model parameters.
Written comments were not and are not intended to be solicited with respect to the proposed change and none have been received.
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.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
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 Vanessa Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection.
All submissions should refer to file number SR-OCC-2024-001 and should be submitted on or before February 15, 2024.
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 (“Exchange Act” or “Act”),
This proposed rule change would amend the OCC Rules, By-Laws, certain Clearing Member documents
The proposed changes are included in Exhibits 5A through 5F to File No. SR-OCC-2024-002. Material proposed to be added as currently in effect is underlined and material proposed to be deleted is marked in strikethrough text. All capitalized terms not defined herein have the same meaning as set forth in the OCC By-Laws and Rules.
In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The proposed rule change consists of modifications to OCC Rules, By-Laws, and certain Clearing Member documents in connection with the recently adopted amendments to Commission Rule 15c6-1(a) to shorten the standard settlement cycle for most broker-dealer securities transactions from two business days after the trade date (“T+2”) to one business day after the trade date (“T+1”).
Rule 15c6-1 establishes a standard settlement cycle for most purchases or sales of securities by broker-dealers. The Commission adopted Rule 15c6-1(a) in 1993 to establish T+3 as the standard trade settlement cycle (instead of five business days after the trade date), and it became effective in June 1995.
Since the change to T+2, the Commission and the financial services industry have continued to explore the idea of shortening the settlement cycle even further. In February 2021, the Depository Trust and Clearing Corporation (“DTCC”) published a White Paper discussing the benefits of accelerated settlement beyond T+2.
On February 9, 2022, the Commission proposed amendments to Rule 15c6-1(a) to shorten the standard settlement cycle to T+1 on the basis that the shorter settlement cycle would reduce the credit, market and liquidity risks in securities transactions faced by market participants and U.S. investors.
OCC proposes certain amendments in light of the anticipated industry move to a T+1 settlement cycle. OCC has determined that shortening the settlement cycle to T+1 would require revisions to OCC Rules, By-Laws, and Clearing Member documents, which are currently aligned with a T+2 settlement cycle. Specifically, OCC proposes to (i) revise provisions connected to late exercise that are impacted by a shortened settlement cycle, (ii) change timeframes related to the standard settlement cycle to reflect T+1, and (iii) make certain other conforming and clarifying changes.
OCC proposes to amend provisions in Chapter VIII of the Rules that are affected by a shortened settlement cycle. Rules 801 and 805 require Clearing Members to submit exercise notices within the timeframes prescribed by OCC.
OCC proposes to cease facilitating the late exercise process after the move to T+1. OCC reviewed its internal operational processes to assess the implications of the shortened settlement cycle on late exercises. Currently, when a late exercise is processed, OCC sends the delivery information to the National Securities Clearing Corporation (“NSCC”) for T+1 settlement.
OCC does not believe that such changes represent a significant departure from its current practices or the practices of other self-regulatory organizations. As described above, OCC's Rules allow OCC to prescribe timeframes during which Clearing
OCC proposes to revise Rule 801, which addresses the exercise of options other than at expiration. OCC propose to remove language in paragraph (a) that requires a Clearing Member to prepare and preserve a memorandum describing the error that gave rise to a late filing. OCC also proposes to remove paragraph (d) that grants certain individuals the discretion to permit a Clearing Member to file a late exercise notice to correct a bona fide error, subject to certain conditions, including liability for a late filing fee, a final deadline for submission, and potential disciplinary action.
OCC propose similar changes to Rule 805, which addresses exercises on expiration. OCC proposes to remove the language in paragraph (c) and related language in paragraph (e) that allows Clearing Members to file late exercise notices subject to a final deadline for submission. OCC would replace the text in paragraph (c) with the term “Reserved.” OCC proposes to remove paragraphs (g), (h), and (i) that set out various terms and conditions governing the submission of late exercise notices, including liability for a late filing fee and potential disciplinary action for the Clearing Member. OCC would eliminate and update references to the provisions in Rule 805 (including the Interpretation and Policy) and make conforming changes throughout the Rules, including in Rules 1305, 1401, and 2702.
OCC proposes changes to timeframes in its Rules, By-Laws, and Clearing Member documents that are related to the current T+2 standard settlement cycle. The following provisions would need to be updated to facilitate the move to T+1 and are discussed in more detail below:
• OCC Rule 901 (Settlement Through Correspondent Clearing Corporations);
• OCC Rule 903 (Obligation to Deliver);
• OCC Rule 1302 (Delivery of Underlying Securities);
• OCC Rule 1302B (Delivery of Underlying Treasury Securities);
• OCC Rule 1503 (Exercise Settlement Date for Event Options and Range Options);
• OCC Rule 2201 (Instructions to the Corporation);
• OCC Rule 2208 (Settlement Date);
• Article XXI of OCC's By-Laws (Stock Loan/Hedge Program);
• OCC Rule 2209A (Termination of Market Loans); and
• OCC Rule 2502 (Settlement Date for BOUNDs).
OCC proposes to amend certain of its Rules that govern the settlement of physically-settled options and futures through NSCC. Rule 901 requires that certain obligations be settled through the facilities of NSCC. Consistent with the new standard settlement cycle, OCC proposes to amend paragraph (c) of Rule 901 to remove a parenthetical indicating that “regular way” settlement under NSCC's rules and procedures does not occur on T+1. Further, paragraph (d) permits OCC to revoke a specification in any delivery advice that settlement be made through the facilities of NSCC at any time prior to the obligation time. In such event, Rule 901(d) allows specified OCC senior officers to extend or postpone the time for delivery to no more than two business days after the date of such revocation. To be consistent with the T+1 settlement cycle, OCC proposes to change the amount of time that OCC has to extend or postpone the time of delivery to one business day.
OCC proposes related changes to conform language with the T+1 settlement cycle in Rule 901(f) and (g) and in certain associated Clearing Member documents. Rule 901(f) permits a Clearing Member (the “Appointing Clearing Member”) that is not an NSCC member to appoint another Clearing Member that is an NSCC member (the “Appointed Clearing Member”) to act on its behalf with respect to the settlement of exercised or matured cleared securities in its accounts through NSCC. OCC maintains a related Clearing Member document (the “Appointment of Clearing Member Form” or an “appointment form”) that permits the Appointed Clearing Member to act on behalf of the Appointing Clearing Member for this purpose. Rule 901(g) permits a Canadian Clearing Member, on behalf of which CDS Clearing and Depository Services Inc. (“CDS”)
Rule 903 governs a Clearing Member's obligation to deliver when either a delivery advice or OCC directs that settlement be made on a broker-to-broker basis. Under Rule 903, the delivery date for physically-settled options is the second business day following the day on which the exercise notice was, or is deemed to have been, properly tendered to OCC, and the
In Chapter XIII regarding futures, futures options and commodity options, OCC proposes to revise Rule 1302 concerning the delivery of underlying securities and Rule 1302B concerning the delivery of underlying Treasury securities. With certain exceptions, Rule 1302 currently provides that the delivery date for a physically-settled stock future is the second business day following the maturity date of the applicable series. Rule 1302B(a) currently provides that the delivery date for each physically-settled Treasury future in respect of which a delivery intent has been submitted (or deemed submitted) is the second business day following such submission (or deemed submission). OCC also maintains a related Clearing Member document (the “Designation of Clearing Member” or a “designation form”) that permits, among other things, a Clearing Member to designate another Clearing Member for the purposes of effecting settlement of physically-settled treasury futures through the Fixed Income Clearing Corporation (“FICC”).
OCC proposes similar changes to make language consistent with the T+1 settlement cycle in Rule 1503. With certain exceptions, Rule 1503 currently provides that the exercise settlement date for a credit default option and credit default basket option is the second business day following the date on which the option is deemed to have been exercised. Under the proposed rule change, OCC would replace the “second” business day with the “first” business day.
OCC also proposes to amend provisions of its Rules and By-Laws concerning its two Stock Loan Programs. OCC operates two programs in which it acts as a central counterparty for stock loan transactions: the Stock Loan/Hedge Program and Market Loan Program.
In respect of the Stock Loan/Hedge Program, Rule 2201(c) currently permits a Canadian Clearing Member on behalf of which CDS maintains a subaccount at DTC to appoint CDS to act on its behalf with respect to effecting delivery orders for stock loan and stock borrow transactions in its accounts through DTC. OCC also maintains a related Clearing Member document (the “Appointment of CDS—Stock Loan Form” or an “appointment form”) that permits CDS to act on behalf of the Canadian Clearing Member for this purpose. Such appointment currently becomes effective as of the second business day following the day on which OCC receives written notice, or such later date as may be specified. Under the proposed rule change, OCC would replace the “second” business day with the “first” business day in Rule 2201(c) and in the appointment form.
In addition, with respect to the Stock Loan/Hedge Program, Rule 2208(a) currently provides that the settlement date for the termination of a stock loan will be the earlier of: (1) the date on which the borrowing Clearing Member initiates the termination or (2) the date that is two stock loan business days after the date on which the lending Clearing Member initiates the termination. OCC proposes to amend Rule 2208(a) to change “two stock loan business days” to “one stock loan business day.”
OCC may terminate outstanding stock loans under certain conditions pursuant to Article XXI, Section 2(c) of OCC's By-Laws with respect to the Stock Loan/Hedge Program. If any stock loans are so terminated, OCC is required to provide written notice to the affected Clearing Members specifying the date on which such termination is to become effective, which will be at least two stock loan business days after the date of such notice. OCC proposes to make the effective date consistent with the new T+1 settlement cycle by changing the minimum number of days between notice and termination from two to one.
Regarding the Market Loan Program, a market loan (
OCC proposes to amend Rule 2502 concerning the settlement date for BOUNDs. Namely, OCC proposes to update the settlement date for a BOUND contract from the second business day following the expiration date to the first business day.
OCC proposes changes to Chapter VI of its Rules related to deposits in lieu of margin. In lieu of depositing margin, OCC permits a Clearing Member or an approved custodian to deposit eligible collateral in respect of certain option contracts included in a short position in accordance with OCC Rule 610. More specifically, OCC permits certain types of deposits in lieu of margin, including member specific deposits, third-party specific deposits, and escrow deposits, which are further described in Rules 610A, 610B and 610C, respectively.
With certain exceptions, OCC Rule 610C(o) provides that any escrow
OCC proposes conforming changes throughout Chapter VI. OCC proposes to amend Rule 610B(d)(2) regarding third-party specific deposits
OCC further proposes revisions to Chapter XIV in relation to Treasury securities options. As U.S. Treasury securities commonly settle on a T+1 basis, OCC proposes to update the exercise settlement date for Treasury securities options from the second business day following the expiration date to the first business day in Rule 1402(a). Additionally, Clearing Members are required to notify OCC within a prescribed timeframe if a trade required to be completed pursuant to Rule 1403 has not been successfully matched at FICC.
As discussed above, OCC would implement the proposed rule change in coordination with the Commission's compliance date for the amendments to Rule 15c6-1(a) and the transition to T+1. OCC would provide notice to Clearing Members of the implementation through an Information Memorandum posted to its public website at least two (2) weeks prior to implementation.
For the following reasons, OCC believes that the proposed rule change is consistent with Section 17A(b)(3)(F) of the Act
OCC believes that the proposed changes to amend timeframes related to the standard settlement cycle are also consistent with Section 17A(b)(3)(F) of the Act.
Additionally, OCC believes that the proposed conforming and clarifying changes to its Rules are consistent with Section 17A(b)(3)(F) of the Act.
OCC believes the proposed changes are also consistent with the requirements in Rule 17Ad-22(e)(1) under the Act.
Section 17A(b)(3)(I) of the Act
Written comments were not and are not intended to be solicited with respect to the proposed rule change, and none have been received.
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.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
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 Vanessa Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection.
All submissions should refer to file number SR-OCC-2024-002 and should be submitted on or before February 15, 2024.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend Rule 4.3. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 4.3 regarding the criteria for underlying securities. Specifically, the Exchange proposes to amend Rule 4.3, Interpretation and Policy .06(a)(4) to allow the Exchange to list and trade options on Units
Bitcoin ETPs are bitcoin-backed commodity ETPs structured as trusts.
The Exchange's initial listing standards for ETFs on which options may be listed and traded on the Exchange will apply to the Bitcoin ETPs. The Exchange expects Bitcoin ETPs to satisfy the initial listing standards as set forth in Rule 4.3(a) and Rule 4.3, Interpretation and Policy .06(b). Pursuant to Rule 4.3(a), a security (which includes a Unit) on which options may be listed and traded on the Exchange must be duly registered (with the Commission) and be an NMS stock (as defined in Rule 600 of Regulation NMS under the Securities Exchange Act of 1934, as amended (the “Act”)), and be characterized by a substantial number of outstanding shares that are widely held and actively traded.
Options on Bitcoin ETPs will also be subject to the Exchange's continued listing standards set forth in Rule 4.4, Interpretation and Policy .06 for Units deemed appropriate for options trading pursuant to Rule 4.3, Interpretation and Policy .06. Specifically, Rule 4.4, Interpretation and Policy .06 provides that Units that were initially approved for options trading pursuant to Rule 4.3, Interpretation and Policy .06 shall be deemed not to meet the requirements for continued approval, and the Exchange shall not open for trading any additional series of option contracts of the class covering that [sic] such Units, if the Units cease to be an NMS stock or the Units are halted from trading in their primary market. Additionally, options on Units may be subject to the suspension of opening transactions in any of the following circumstances: (1) in the case of options covering Units approved for trading under Rule 4.3, Interpretation and Policy .06(b)(1), in accordance with the terms of paragraphs (a), (b), and (c) of Rule 4.4, Interpretation and Policy .01; (2) in the case of options covering Units approved for trading under Rule 4.3 Interpretation and Policy .06(b)(2), following the initial twelve-month period beginning upon the commencement of trading in the Units on a national securities exchange and are defined as an NMS stock [sic], there are fewer than 50 record and/or beneficial holders of such Units for 30 or more consecutive trading days; (3) the value of the index or portfolio of securities, non-U.S. currency, or portfolio of commodities including commodity futures contracts, options on commodity futures contracts, swaps, forward contracts and/or options on physical commodities and/or financial instruments and money market instruments on which the Units are based is no longer calculated or available; or (4) such other event shall occur or condition exist that in the opinion of the Exchange makes further dealing in such options on the Exchange inadvisable.
Options on a Bitcoin ETP will be physically settled contracts with American-style exercise.
Pursuant to Rule 4.5, Interpretation and Policy .07, which governs strike prices of series of options on Units, the interval of strikes prices for series of options Bitcoin ETPs will be $1 or greater when the strike price is $200 or less and $5 or greater where the strike price is over $200.
Bitcoin ETP options will trade in the same manner as any other Unit options on the Exchange. The Exchange Rules that currently apply to the listing and trading of all Unit options on the Exchange, including, for example, Rules that govern listing criteria, expiration and exercise prices, minimum increments, position and exercise limits, margin requirements, customer accounts and trading halt procedures will apply to the listing and trading of Bitcoin ETPs on the Exchange in the same manner as they apply to other options on all other Units that are listed and traded on the Exchange, including the precious-metal backed commodity Units already deemed appropriate for options trading on the Exchange pursuant to current Rule 4.3, Interpretation and Policy .06(a)(4).
Position and exercise limits for options on Units, including options on Bitcoin ETPs, are determined pursuant to Rules 8.30 and 8.42, respectively. Position and exercise limits for Unit options vary according to the number of outstanding shares and the trading volumes of the underlying Unit over the past six months, where the largest in capitalization and the most frequently traded Units have an option position and exercise limit of 250,000 contracts (with adjustments for splits, re-capitalizations, etc.) on the same side of the market; and smaller capitalization Units have position and exercise limits of 200,000, 75,000, 50,000 or 25,000 contracts (with adjustments for splits, re-capitalizations, etc.) on the same side of the market.
The Exchange represents that the same surveillance procedures applicable to all other options on Units currently listed and traded on the Exchange will apply to options on Bitcoin ETPs, and that it has the necessary systems capacity to support the new option series. The Exchange believes that its existing surveillance and reporting safeguards are designed to deter and detect possible manipulative behavior which might potentially arise from listing and trading Unit options, including precious metal-commodity backed Unit options, as proposed [sic]. Also, the Exchange may obtain information from CME Group Inc.'s designated contract markets that are members of the Intermarket Surveillance Group related to any financial instrument that is based, in whole or in part, upon an interest in or performance of bitcoin, as applicable.
The Exchange has also analyzed its capacity and represents that it believes the Exchange and OPRA have the necessary systems capacity to handle the additional traffic associated with the listing of new series that may result from the introduction of options on Bitcoin ETPs up to the number of expirations currently permissible under the Rules. Because the proposal is limited to Units on a single commodity, the Exchange believes any additional traffic that may be generated from the introduction of Bitcoin ETP options will be manageable.
The Exchange believes that offering options on Bitcoin ETPs will benefit investors by providing them with an additional, relatively lower cost investing tool to gain exposure to the price of bitcoin and hedging [sic] vehicle to meet their investment needs in connection with bitcoin-related products and positions. The Exchange expects investors will transact in options on Bitcoin ETPs in the unregulated over-the-counter (“OTC”) options market (if the Commission approves Bitcoin ETPs for exchange-trading),
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
In particular, the Exchange believes that the proposal to list and trade options on Bitcoin ETPs will remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors because offering options on Bitcoin ETPs will provide investors with an opportunity to realize the benefits of utilizing options on a bitcoin-based ETP, including cost efficiencies and increased hedging strategies. The Exchange believes that offering Bitcoin ETP options will benefit investors by providing them with a relatively lower-cost risk management tool, which will allow them to manage their positions and associated risk in their portfolios more easily in connection with exposure to the price of bitcoin and with bitcoin-related products and positions. Additionally, the Exchange's offering of Bitcoin ETP options will provide investors with the ability to transact in such options in a listed market environment as opposed to in the unregulated OTC options market, which would increase market transparency and enhance the process of price discovery conducted on the Exchange through increased order flow to the benefit of all investors. The Exchange also notes that it already lists options on other commodity-based Units,
The Exchange also believes the proposed rule change will remove impediments to and perfect the mechanism of a free and open market and a national market system, because it is consistent with current Exchange Rules, previously filed with the Commission. Options on Bitcoin ETPs must satisfy the initial listing standards and continued listing standards currently in the Exchange Rules, applicable to options on all Units, including Units that hold other commodities already deemed appropriate for options trading on the Exchange. Bitcoin ETP options will trade in the same manner as any other Unit options—the same Exchange Rules that currently govern the listing and trading of all Unit options, including permissible expirations, strike prices and minimum increments, and applicable position and exercise limits and margin requirements, will govern the listing and trading of options on Bitcoin ETPs in the same manner.
The Exchange represents that it has the necessary systems capacity to support the new Unit option series. The Exchange believes that its existing surveillance and reporting safeguards are designed to deter and detect possible manipulative behavior which might arise from listing and trading Unit options, including Bitcoin ETP options.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act as Bitcoin ETPs would need to satisfy the initial listing standards set forth in the Exchange Rules in the same manner as any other Unit before the Exchange could list options on them. Additionally, Bitcoin ETP options will be equally available to all market participants who wish to trade such options. The Exchange Rules currently applicable to the listing and trading of options on Units on the Exchange will apply in the same manner to the listing and trading of all options on Bitcoin ETPs. Also, and as stated above, the Exchange already lists options on other commodity-based Units.
The Exchange does not believe that the proposal to list and trade options on Bitcoin ETPs will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the extent that the advent of Bitcoin ETP options trading on the Exchange may make the Exchange a more attractive marketplace to market participants at other exchanges, such market participants are free to elect to become market participants on the Exchange. Additionally, other options exchanges are free to amend their listing rules, as applicable, to permit them to list and trade options on Bitcoin ETPs. Additionally, the Exchange notes that listing and trading Bitcoin ETP options on the Exchange will subject such options to transparent exchange-based rules as well as price discovery and liquidity, as opposed to alternatively trading such options in the OTC market. The Exchange believes that the proposed rule change may relieve any burden on, or otherwise promote, competition as it is designed to increase competition for order flow on the Exchange in a manner that is beneficial to investors by providing them with a lower-cost option to hedge their investment portfolios. The Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues that offer similar products. Ultimately, the Exchange believes that offering Bitcoin ETP options for trading on the Exchange will promote competition by providing investors with an additional, relatively low-cost means to hedge their portfolios and meet their investment needs in connection with bitcoin prices and bitcoin-related products and positions on a listed options exchange.
The Exchange neither solicited nor received written 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.
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 402, Criteria for Underlying Securities.
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 402, Criteria for Underlying Securities,
Current Exchange Rule 402(i)(4) provides that, subject to certain other criteria set forth in that Rule, securities deemed appropriate for options trading include ETFs that represent certain types of interests,
Bitcoin ETPs are bitcoin-backed commodity ETPs structured as trusts.
The Exchange's initial listing standards for ETFs on which options may be listed and traded on the Exchange will apply to the Bitcoin ETPs. The Exchange expects Bitcoin ETPs to satisfy the initial listing standards as set forth in Exchange Rule 402(a) and Exchange Rule 402(i). Pursuant to Exchange Rule 402(a), a security (which includes ETFs) on which options may be listed and traded on the Exchange must be duly registered (with the Commission) and be an NMS stock (as defined in Rule 600 of Regulation NMS under the Act,) and be characterized by a substantial number of outstanding shares that are widely held and actively traded.
Options on Bitcoin ETPs will also be subject to the Exchange's continued listing standards set forth in Exchange Rule 403(g), for ETFs deemed appropriate for options trading pursuant to Exchange Rule 402(i). Specifically, Exchange Rule 403(g) provides that ETFs that were initially approved for options trading pursuant to Exchange Rule 402(i) shall be deemed not to meet the requirements for continued approval, and the Exchange shall not open for trading any additional series of option contracts of the class covering that such ETFs, if the ETFs are delisted from trading pursuant to Exchange Rule 403(b)(4), are halted or suspended from trading in their primary market. Additionally, options on ETFs may be subject to the suspension of opening transactions in any of the following circumstances: (1) in the case of options covering ETFs approved for trading under Exchange Rule 402(i)(5)(i)(A), in accordance with the terms of paragraphs (b)(1), (2), and (3) of Exchange Rule 403; (2) in the case of options covering ETFs approved for trading under Exchange Rule 402(i)(5)(i)(B), following the initial twelve-month period beginning upon the commencement of trading in the ETFs on a national securities exchange and are defined as an NMS stock [sic], there are fewer than 50 record and/or beneficial holders of such ETFs for 30 or more consecutive trading days; (3) the value of the index or portfolio of securities, non-U.S. currency, or portfolio of commodities including commodity futures contracts, options on commodity futures contracts, swaps, forward contracts and/or options on physical commodities and/or financial instruments and money market instruments on which the Units are based is no longer calculated or available; or (4) such other event shall occur or condition exist that in the opinion of the Exchange makes further dealing in such options on the Exchange inadvisable.
Options on a Bitcoin ETP will be physically settled contracts with American-style exercise.
Pursuant to Exchange Rule 404, Interpretation and Policy .06, which governs strike prices of series of options on Trust Issued Receipts, the interval of strikes prices for series of options Bitcoin ETPs will be $1 or greater when the strike price is $200 or less and $5 or greater where the strike price is over $200.
Bitcoin ETP options will trade in the same manner as any other ETF options on the Exchange. The Exchange Rules that currently apply to the listing and trading of all ETFs options on the Exchange, including, for example, Exchange Rules that govern listing criteria, expiration and exercise prices, minimum increments, position and exercise limits, margin requirements, customer accounts and trading halt procedures will apply to the listing and trading of Bitcoin ETPs on the Exchange in the same manner as they apply to other options on all other ETFs that are listed and traded on the Exchange, including the precious-metal backed commodity ETFs already deemed appropriate for options trading on the Exchange pursuant to current Exchange Rule 402(i)(4).
Position and exercise limits for options on ETFs, including options on Bitcoin ETPs, are determined pursuant to Exchange Rules 307 and 309, respectively. Position and exercise limits for ETFs options vary according to the number of outstanding shares and the trading volumes of the Underlying Security
The Exchange represents that the same surveillance procedures applicable to all other options on ETFs currently listed and traded on the Exchange will apply to options on Bitcoin ETPs, and that it has the necessary systems capacity to support the new option series. The Exchange believes that its existing surveillance and reporting safeguards are designed to deter and detect possible manipulative behavior which might potentially arise from listing and trading ETFs options, including precious metal-commodity backed ETFs options, as proposed. Also, the Exchange may obtain information from CME Group Inc.'s designated contract markets that are members of the Intermarket Surveillance Group related to any financial instrument that is based, in whole or in part, upon an interest in or performance of bitcoin, as applicable.
The Exchange has also analyzed its capacity and represents that it believes the Exchange and OPRA have the necessary systems capacity to handle the additional traffic associated with the listing of new series that may result from the introduction of options on Bitcoin ETPs up to the number of expirations currently permissible under the Rules. Because the proposal is limited to ETFs on a single commodity, the Exchange believes any additional traffic that may be generated from the introduction of Bitcoin ETP options will be manageable.
The Exchange believes that offering options on Bitcoin ETPs will benefit investors by providing them with an additional, relatively lower cost investing tool to gain exposure to the price of bitcoin and [sic] hedging vehicle to meet their investment needs in connection with bitcoin-related products and positions. The Exchange expects investors will transact in options on Bitcoin ETPs in the unregulated over-the-counter (“OTC”) options market (if the Commission approves Bitcoin ETPs for exchange-trading),
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
In particular, the Exchange believes that the proposal to list and trade options on Bitcoin ETPs will remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors because offering options on Bitcoin ETPs will provide investors with an opportunity to realize the benefits of utilizing options on a bitcoin-based ETP, including cost efficiencies and increased hedging strategies. The Exchange believes that offering Bitcoin ETP options will benefit investors by providing them with a relatively lower-cost risk management tool, which will allow them to manage their positions and associated risk in their portfolios more easily in connection with exposure to the price of bitcoin and with bitcoin-related products and positions. Additionally, the Exchange's offering of Bitcoin ETP options will provide investors with the ability to transact in such options in a listed market environment as opposed to in the unregulated OTC options market, which would increase market transparency and enhance the process of price discovery conducted on the Exchange through increased order flow to the benefit of all investors. The Exchange also notes that it already lists options on other commodity-based ETFs,
The Exchange also believes the proposed rule change will remove impediments to and perfect the mechanism of a free and open market and a national market system, because it is consistent with current Exchange Rules, previously filed with the Commission. Options on Bitcoin ETPs must satisfy the initial listing standards and continued listing standards currently in the Exchange Rules, applicable to options on all ETFs, including ETFs that hold other commodities already deemed appropriate for options trading on the Exchange. Bitcoin ETP options will trade in the same manner as any other ETFs options—the same Exchange Rules that currently govern the listing and trading of all ETFs options, including permissible expirations, strike prices and minimum increments, and applicable position and exercise limits and margin requirements, will govern the listing and trading of options on Bitcoin ETPs in the same manner.
The Exchange represents that it has the necessary systems capacity to support the new ETF option series. The Exchange believes that its existing surveillance and reporting safeguards are designed to deter and detect possible manipulative behavior which might arise from listing and trading ETF options, including Bitcoin ETP options.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act as Bitcoin ETPs would need to satisfy the initial listing standards set forth in the Exchange Rules in the same manner as any other ETFs before the Exchange could list options on them. Additionally, Bitcoin ETP options will be equally available to all market participants who wish to trade such options. The Exchange Rules currently applicable to the listing and trading of options on ETFs on the Exchange will apply in the same manner to the listing and trading of all options on Bitcoin ETPs. Also, and as stated above, the Exchange already lists options on other commodity-based ETFs.
The Exchange does not believe that the proposal to list and trade options on Bitcoin ETPs will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the extent that the advent of Bitcoin ETP options trading on the Exchange may make the Exchange a more attractive marketplace to market participants at other exchanges, such market participants are free to elect to become market participants on the Exchange. Additionally, other options exchanges are free to amend their listing rules, as applicable, to permit them to list and trade options on Bitcoin ETPs. Additionally, the Exchange notes that listing and trading Bitcoin ETP options on the Exchange will subject such options to transparent exchange-based rules as well as price discovery and liquidity, as opposed to alternatively trading such options in the OTC market. The Exchange believes that the proposed rule change may relieve any burden on, or otherwise promote, competition as it is designed to increase competition for order flow on the Exchange in a manner that is beneficial to investors by providing them with a lower-cost option to hedge their investment portfolios. The Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues that offer similar products. Ultimately, the Exchange believes that offering Bitcoin ETP options for trading on the Exchange will promote competition by providing investors with an additional, relatively low-cost means to hedge their portfolios and meet their investment needs in connection with bitcoin prices and bitcoin-related products and positions on a listed options exchange.
Written comments were neither solicited nor received.
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.
Pursuant to the authority granted to the United States Small Business Administration under Section 309 of the Small Business Investment Act of 1958, as amended, and 13 CFR 107.1900 of the Code of Federal Regulations to function as a small business investment company under the Small Business Investment Company license number 09/09-0471 issued to Pivotal Capital Fund, LP, said license is hereby declared null and void.
Social Security Administration (SSA).
Request for Information.
The SSA is soliciting comments and suggestions from the public on the DRAFT
To ensure that your comments are considered, we must receive them no later than February 26, 2024.
You may submit comments by any one of three methods—internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2023-0048 so that we may associate your comments with the correct docket.
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Comments are available for public viewing on the Federal eRulemaking portal at
Robert Weathers, Office of Retirement and Disability Policy, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, (410) 615-6965, email:
SSA has developed a DRAFT SSA Scientific Integrity Policy to help ensure science and scientific activities are proposed, conducted, reviewed, managed, communicated, and used in ways that preserve accuracy and objectivity. The policy aligns with Federal Government scientific integrity efforts described in the 2021 Presidential Memorandum on
For nearly 90 years, we have administered programs and provided services that make a difference in millions of people's lives. In fiscal year (FY) 2023, our programs provided a combined total of about $1.4 trillion in benefit payments to an average of over 70 million beneficiaries. The major programs we administer—the Old-Age Survivors and Disability Insurance program and the Supplemental Security Income program—provide an important source of economic security for millions of Americans. Our fundamental mission is to deliver quality Social Security services that ensure equity and accessibility, improve the customer experience, and address systemic barriers to participation in our programs.
The 2021 Presidential Memorandum states the Administration's goal is to make evidence-based decisions guided by the best available science and data, recognizing that scientific and technological information, data, and evidence are central to the development and iterative improvement of sound policies and to the equitable delivery of programs across every area of the Federal Government. The 2021 Presidential Memorandum emphasizes that political interference in the work of Federal scientists and other scientists who support the work of the Federal Government (
We conduct scientific activities that include evaluations of pilot projects, evaluations of demonstration projects, quantitative studies, qualitative studies, and mixed methods studies that inform important priorities, such as delivering services effectively, improving the way we conduct business, updating policies and regulations, and ensuring effective stewardship. For example, we conducted evidence-building activities relevant to our Equity Action Plan,
We also conduct extramural research, demonstration projects, and outreach under sections 1110, 1115, and 1144 of the Social Security Act (Act). Sections 1110 and 1115 of the Act provide the waiver authority we need to conduct extramural research and demonstration projects, while section 1144 of the Act addresses outreach activities to inform and assist Medicare beneficiaries with low income who may be eligible for Medicare cost sharing or subsidized prescription drug coverage. A previous authority, under section 234 of the Act, allowed us to waive Disability Insurance program rules to enhance labor force participation; that authority sunset in 2022. We currently fund a range of scientific projects designed to:
• Help us keep pace with advancements in medicine and technology;
• Modernize our vocational rules;
• Test work support models;
• Analyze program trends, gaps, and inconsistencies; and
• Measure the public's understanding of our programs, as well as the impact of program changes.
Through this RFI, we are asking interested persons, including stakeholders across public and private sectors who may be familiar with or interested in the work of our agency, for input on the DRAFT SSA Scientific Integrity Policy.
We invite suggestions that will help strengthen and promote scientific integrity throughout the agency. The responses to this RFI that interested persons submit to us will be considered as we develop a final SSA Scientific Integrity Policy. This RFI is for information and planning purposes only and should not be construed as a solicitation or as an obligation on our part. We will not respond to the comments we receive in response to this RFI. However, we will use the input to develop our Scientific Integrity Policy.
The Commissioner of the Social Security Administration, Martin O'Malley, having reviewed and approved this document, is delegating the authority to electronically sign this document to Faye I. Lipsky, who is the primary Federal Register Liaison for SSA, for purposes of publication in the
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 March 25, 2024.
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 statutes and 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 2020, FRA issued a final rule titled, State Highway-Rail Grade Crossing Action Plans,
FRA uses the collection of information to ensure that States meet the Congressional mandate and devise and implement suitable plans to reduce/eliminate highway-rail grade collisions. FRA reviews these crossing action plans and crossing action plan revisions to ensure that these plans include the following: (1) identify specific strategies for improving safety at highway-rail grade crossings, including highway-rail grade crossing closures or grade separations; (2) focus on crossings that have experienced multiple accidents or are at high risk for such accidents; and (3) cover a five-year period.
In this 60-day notice, FRA makes no adjustments to the previously approved burden hours and responses in the 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.