Forest Service
National Agricultural Library
Census Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
National Technical Information Service
Patent and Trademark Office
Army Department
Navy Department
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
U.S. Immigration and Customs Enforcement
Indian Affairs Bureau
Land Management Bureau
Employee Benefits Security Administration
Federal Highway Administration
Foreign Assets Control Office
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Federal Election Commission.
Final rule; correction.
The Federal Election Commission is correcting two amendatory instructions that appeared in a final rule published in the
Effective March 1, 2024.
Ms. Amy Rothstein, Assistant General Counsel, or Ms. Joanna S. Waldstreicher or Mr. Tony Buckley, Attorneys, 1050 First Street NE, Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
In FR Doc. 2023-27908 appearing on page 196 in the
On behalf of the Commission.
U.S. Small Business Administration.
Direct final rule; correction.
The Small Business Administration (SBA) is correcting a rule that appeared in the
This correction is effective March 4, 2024.
In FR Doc. 2024-00559 appearing on page 3542 in the
Federal Energy Regulatory Commission, DOE.
Final rule.
In accordance with the Commission's regulations, the Commission, by its designee, the Executive Director, issues this annual update to the fee schedule in the appendix to the part, which lists per-acre rental fees by county (or other geographic area) for use of government lands by hydropower licensees.
Raven A. Rodriguez, Financial Management Division Office of the Executive Director, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6276,
Section 11.2 of the Commission's regulations provides a method for
This final rule is effective January 29, 2024. The provisions of 5 U.S.C. 804, regarding Congressional review of final rules, do not apply to this final rule because the rule concerns agency procedure and practice and will not substantially affect the rights or obligations of non-agency parties. This final rule merely updates the fee schedule published in the Code of Federal Regulations to reflect scheduled adjustments, as provided for in § 11.2 of the Commission's regulations.
Public lands.
By the Executive Director.
In consideration of the foregoing, the Commission amends appendix A to part 11, chapter I, title 18, Code of Federal Regulations, as follows.
16 U.S.C. 792-828c; 42 U.S.C. 7101-7352.
Corporation for National and Community Service.
Final rule.
The Corporation for National and Community Service, which operates as AmeriCorps, is updating its regulations to reflect required annual inflation-related increases to the civil monetary penalties under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Act) and Office of Management and Budget (OMB) guidance.
This rule is effective January 29, 2024.
Elizabeth Appel, Office of General Counsel, at
AmeriCorps is a Federal agency that engages millions of Americans in service. AmeriCorps members and AmeriCorps Seniors volunteers serve directly with nonprofit organizations to tackle our nation's most pressing challenges. For more information, visit
AmeriCorps has two civil monetary penalties in its regulations. A civil monetary penalty under the Act is a penalty, fine, or other sanction that: (1) is for a specific monetary amount as provided by Federal law or has a maximum amount provided for by Federal law; and (2) is assessed or enforced by an agency pursuant to Federal law; and (3) is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts. (
The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (sec. 701 of Pub. L. 114-74) (the “Act”) requires agencies to adjust their civil monetary penalties for inflation annually. This rule updates AmeriCorps' two civil penalties for inflation.
The inflation adjustment for each applicable civil monetary penalty is determined using the percent increase in the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October of the year in which the amount of each civil money penalty was most recently established or modified.
• The civil monetary penalties related to Restrictions on Lobbying (45 CFR 1230.400) range from $23,728 to $237,267. Using the 2024 multiplier, the new range of possible civil monetary penalties is from $24,497 to $244,957.
• The Program Fraud Civil Remedies Act of 1986 (45 CFR 2554.1) civil monetary penalty has an upper limit of $13,508. Using the 2024 multiplier, the new upper limit of the civil monetary penalty is $13,946.
This final rule adjusts the civil monetary penalty amounts related to Restrictions on Lobbying (45 CFR 1230.400) and the Program Fraud Civil Remedies Act of 1986 (45 CFR 2554.1). The range of civil monetary penalties related to Restrictions on Lobbying increase from “$23,728 to $237,267” to “$24,497 to $244,957.” The civil monetary penalties for the Program Fraud Civil Remedies Act of 1986 increase from “up to $13,508” to “up to $13,946.”
Section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553) provides that, when an agency for good cause finds that notice and public comment procedures are impracticable, unnecessary, or contrary to the public interest, then the agency may issue a rule without providing notice and an opportunity for prior public comment. The agency finds that there is good cause to except this rule from the public notice and comment provisions of the APA in this case. Because the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires the agency to update its regulations based on a prescribed formula, the agency has no discretion in the nature or amount of the change to the civil monetary penalties to reflect any views or suggestions provided by commenters. Accordingly, it would serve no purpose to provide an opportunity for public comment on this rule prior to promulgation. Thus, providing for notice and public comment is impracticable and unnecessary. Additionally, it would not be possible to meet the deadlines imposed by the Act if we were to first publish a proposed rule, allow the public sufficient time to submit comments, analyze the comments, and publish a final rule. Therefore, notice and comment for these proscribed updates is impracticable and unnecessary.
Furthermore, the agency finds under section 553(d)(3) of the APA that good cause exists to make this final rule effective immediately upon publication in the
Accordingly, we are issuing the annual adjustments as a final rule without prior notice or an opportunity for comment and with an effective date immediately upon publication in the
The agency has determined that making technical changes to the amount of civil monetary penalties in its regulations does not trigger any requirements under procedural statutes and Executive orders that govern rulemaking procedures.
Government contracts, Grant programs, Loan programs, Lobbying, Penalties, Reporting and recordkeeping requirements.
Claims, Fraud, Organization and functions (Government agencies), Penalties.
For the reasons discussed in the preamble, under the authority of 42 U.S.C. 12651c(c), the Corporation for National and Community Service amends chapters XII and XXV, title 45 of the Code of Federal Regulations as follows:
Section 319, Pub. L. 101-121 (31 U.S.C. 1352); Pub. L. 93-113; 42 U.S.C. 4951,
Pub. L. 99-509, Secs. 6101-6104, 100 Stat. 1874 (31 U.S.C. 3801-3812); 42 U.S.C. 12651c-12651d.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS closes the General category fishery for Atlantic bluefin tuna (BFT) for the remainder of the January through March time period. The General category may only retain, possess, or land large medium and giant (
Effective 11:30 p.m., local time, January 26, 2024, through March 31, 2024.
Larry Redd, Jr.,
BFT fisheries are managed under the 2006 Consolidated HMS Fishery Management Plan (FMP) and its amendments, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801
As described in § 635.27(a), the current baseline U.S. BFT quota is 1,316.14 metric tons (mt) (not including the 25 mt ICCAT allocated to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area per § 635.27(a)(3)). The current baseline quota for the General category is 710.7 mt. The General category may only retain, possess, or land large medium and giant (
Under § 635.28(a)(1), NMFS files a closure action with the Office of the Federal Register for publication when a BFT quota (or subquota) is reached or is projected to be reached. Retaining, possessing, or landing BFT under that quota category is prohibited on or after the effective date and time of a closure notice for that category until the opening of the relevant subsequent quota period or until such date as specified.
To date, reported landings for the General category January through March time period total 52.5 mt. Based on
During a closure, fishermen aboard General category permitted vessels and HMS Charter/Headboat permitted vessels may tag and release BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize their survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at
NMFS will continue to monitor the BFT fisheries closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT as specified at § 635.5(b)(2)(i). Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustments, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General and HMS Charter/Headboat category vessel owners are required to report the catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing
After the fishery reopens on June 1, depending on the level of fishing effort and catch rates of BFT NMFS may determine that additional adjustments are necessary to ensure available subquotas are not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas as specified under § 635.27(a)(7). If needed, subsequent adjustments will be published in the
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act and regulations at 50 CFR part 635 and is exempt from review under Executive Order 12866.
The Assistant Administrator for NMFS (AA) finds that pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and opportunity to provide comment on this action, as notice and comment would be impracticable and contrary to the public interest for the following reasons. Specifically, the regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Providing for prior notice and an opportunity to comment is impracticable and contrary to the public interest as this fishery is currently underway and, based on landings information, the available time period subquota is projected to be reached shortly. Delaying this action could result in BFT landings exceeding the adjusted January through March time period subquota and reduce the opportunity for U.S. fishing vessels to harvest quota later in the year. Taking this action does not raise conservation or management concerns, and would support effective management of the BFT fishery. NMFS notes that the public had an opportunity to comment on the underlying rulemakings that established the U.S. BFT quota and the inseason adjustment criteria.
For all of the above reasons, the AA also finds that pursuant to 5 U.S.C. 553(d), there is good cause to waive the 30-day delay in effective date.
16 U.S.C. 971
Board of Governors of the Federal Reserve System.
Notice of proposed rulemaking; extension of comment period.
On November 14, 2023, the Board of Governors of the Federal Reserve System (Board) published in the
The comment period for the proposed rulemaking published on November 14, 2023 (88 FR 78100) is extended. Comments must be received by May 12, 2024.
You may submit comments by any of the methods identified in the proposal.
Benjamin Snodgrass, Senior Counsel (202-263-4877) or Cody Gaffney, Senior Attorney (202-452-2674), Legal Division; or Krzysztof Wozniak, Section Chief (202-452-3878) or Elena Falcettoni, Senior Economist (202-452-2528), Division of Reserve Bank Operations and Payment Systems. For users of TTY-TRS, please call 711 from any telephone, anywhere in the United States or (202) 263-4869.
On November 14, 2023, the Board published in the
The proposal provided for a comment period ending on February 12, 2024. Since the publication of the proposal, multiple commenters have requested that the Board extend the comment period, while one commenter has expressed opposition to any extension. An extension of the comment period will provide additional opportunity for interested parties to consider the proposal and prepare comments. Therefore, the Board is extending the end of the comment period for the proposal from February 12, 2024, to May 12, 2024.
In addition, to assist the public in commenting on the proposed new methodology for determining the base component of the interchange fee cap, additional data concerning this aspect of the proposal are being made available on the Board's website.
By order of the Board of Governors of the Federal Reserve System, acting through the Secretary of the Board under delegated authority, January 22, 2024.
Consumer Product Safety Commission.
Request for comment on petition for rulemaking.
The U.S. Consumer Product Safety Commission (Commission or CPSC) received a petition requesting an amendment to its rule on button cell or coin battery packaging to allow for a smaller “Keep out of Reach” icon on the principal display panel for packages of button cell or coin batteries (Petition). The Commission invites written comments concerning this Petition.
Submit comments by March 29, 2024.
Submit comments, identified by Docket No. CPSC-2024-0004, by any of the following methods:
Alberta E. Mills, Secretary, Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814; telephone: 301-504-7479;
On September 21, 2023, as part of its implementation of Reese's Law (Pub. L. 117-171, 15 U.S.C. 2056e), the Commission published a Safety Standard for Button Cell or Coin Batteries and Consumer Products Containing Such Batteries, codified at 16 CFR part 1263. 88 FR 65296 (battery package labeling); 88 FR 65274 (consumer products).
On November 1, 2023, the Commission received a petition from Elliott Alexander (Petitioner), President of Micropower Battery Company. The Petition requests the Commission to modify the rule for battery package labeling to allow for a smaller “Keep out of Reach” icon when space prohibits the full warning on the principal display panel, suggesting a minimum icon size of 8 mm, and allowing a scaled icon depending on the size of the packaging up to a 20 mm icon. The Petition includes example images of existing battery packaging to demonstrate space limitations. The Petition alleges that existing packaging has been made child-resistant, but if a 20 mm icon is required on the front of the package, then manufacturers will collectively be required to spend millions of dollars on production of larger packages and different package configurations. The Petition also questions why an additional “Keep out of Reach” icon is necessary on the front packaging when batteries 16 mm and larger already include the same icon on each battery, which is visible through the packaging.
The Petition requests an amendment to the final rule to allow “Keep out of Reach” icons on the primary display panel to be between 8 to 20 mm, depending on the packaging, and alternatively to allow the words “Keep Away from Children” on the front of battery packaging. In a December 28, 2023, letter to Commission staff (Follow-Up Letter), the Petitioner further explains why he believes battery packaging cannot be reconfigured to allow space for a 20 mm icon on the principal display panel, and provides a proposed sliding scale for “Keep out of Reach” icon sizes from 7 to 40 mm.
The Petition and the Follow-Up Letter are available at:
• Whether the Petition presents any issues or evidence that could not have been presented to the Commission during the comment period on the notice of proposed rulemaking, prior to adoption of the final rule establishing the requirement for a 20 mm “Keep out of Reach” icon.
• Whether, if a 20 mm “Keep out of Reach” icon in sticker format is used on the outside of battery packaging, including over a packaged battery, to meet the requirements of the current rule, the permanency of such a sticker should be tested in accordance with the permanency test in UL 4200A or another standard, and whether such a sticker could be a cost-effective way to meet the product safety requirement for small packages.
Federal Communications Commission.
Petition for Reconsideration.
Petition for Reconsideration (Petitions) have been filed in the Commission's proceeding Aryeh B. Fishman, on behalf of Edison Electric Institute.
Oppositions to the Petitions must be filed on or before February 13, 2024. Replies to oppositions must be filed on or before February 8, 2024.
Federal Communications Commission, 45 L Street NE, Washington, DC 20554.
For additional information on this proceeding, contact Michael Ray of the Wireline Competition Bureau, Competition Policy Division, at (202) 418-0357 or
This is a summary of the Commission's document, Report No. 3209, released January 22, 2024. The full text of the Petitions can be accessed online via the Commission's Electronic Comment Filing System at:
Federal Communications Commission.
Proposed rule; solicitation of comment.
In this document, the Federal Communications Commission (Commission) proposes to implement certain decisions regarding the 24.25-27.5 GHz band made in the World Radiocommunication Conference held by the International Telecommunication Union (ITU) in 2019 (WRC-19). Specifically, the Commission proposes to align part 30 of the Commission's rules for mobile operations with the Resolution 750 limits on unwanted emissions into the passive 23.6-24.0 GHz band that were adopted at WRC-19. These proposed rule changes would help to facilitate the protection of passive sensors used for weather forecasting and scientific research in the 23.6 GHz-24.0 GHz band, while continuing to promote flexible commercial use of the 24.25-24.45 GHz and 24.75-25.25 GHz bands (collectively, 24 GHz band). The Commission also seeks comment on alternatives to the proposals it makes, and on other related issues.
Comments are due on or before February 28, 2024; reply comments are due on or before March 14, 2024. Written comments on the Initial Regulatory Flexibility Analysis (IRFA) in this document must have a separate and distinct heading designating them as responses to the IRFA and must be submitted by the public on or before February 28, 2024.
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
•
•
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.
• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19.
Simon Banyai of the Wireless Telecommunications Bureau, Broadband Division, at 202-418-1443 or
This is a summary of the Commission's Notice of Proposed Rulemaking (
1. The 23.6-24.0 GHz band is allocated to the Earth Exploration Satellite Service (EESS) (passive), Space Research Service (passive), and Radio Astronomy Service (RAS) on a primary basis. EESS utilizes passive sensors located on satellites to measure the power level of naturally occurring radio emissions from water vapor and cloud liquid water molecules in the atmosphere, critical measurements for climatology science and weather forecasting. The National Oceanic and Atmospheric Administration (NOAA) uses such passive sensors to measure moisture data and determine water vapor in its weather forecast models. Because these naturally occurring emissions in the 23.6-24.0 GHz band are very weak, the passive sensors measuring them are sensitive and vulnerable to interference. As these sensors receive all natural and man-made emissions in general, passive sensors are not able to differentiate these two sources of signals.
2. The Commission first authorized service in the 24.25-24.45 GHz and 25.05-25.25 GHz bands in 1997, when it transitioned the Digital Electronic Messaging Service (DEMS) to these bands from the 18 GHz band. In 2000, the Commission adopted competitive bidding and service rules for these bands and created a 24 GHz Service. This 24 GHz Service had a total of 176 Economic Areas (EA) or EA-like service areas. In 2004, the Commission held Auction 56, in which it made 880 24 GHz licenses available. Only seven of the 880 licenses were sold. As of 2017, there were 33 active DEMS licenses in these bands.
3. In 2017, the Commission authorized the 24 GHz band for Upper Microwave Flexible Use Services (UMFUS), and generally applied the same licensing and technical rules to UMFUS in the 24 GHz band that it applied to UMFUS in other upper microwave bands. The UMFUS rules allow licensees flexibility as to the services they will deploy and the architecture of their networks. Under these rules, licensees are able to deploy mobile services, but they also may implement fixed point-to-point and point-to-multipoint systems. Among other things, the UMFUS rules specify that emissions outside of a licensee's assigned frequency block must be limited to −13 dBm/MHz.
4. WRC-19 allocated 24.25-25.25 GHz to mobile (except aeronautical) on a primary basis in Regions 1 and 2, globally identified the 24.25-27.5 GHz band for IMT, and established limits on unwanted emissions applicable to IMT in the 24.25-27.5 GHz band to protect EESS passive systems in the 23.6-24.0 GHz band from harmful interference. To protect EESS passive systems, WRC-19 modified a footnote to the International Table of Allocations to add a new limit contained in Resolution 750 (Rev. WRC-19). Resolution 750 specifies unwanted emissions limits in terms of Total Radiated Power (TRP) as the amount of power that may be radiated into any 200 megahertz block of the 23.6-24.0 GHz passive band by IMT base stations and IMT mobile stations operating in the 24.25-27.5 GHz band. Resolution 750 sets emissions limits for current IMT devices as well as more stringent emissions limits for IMT devices that will be brought into use in the 24.25-27.5 GHz band on or after September 1, 2027.
5. On April 26, 2021, the Office of Engineering and Technology and the Wireless Telecommunications Bureau issued a
6. The
7. The
8. Comments on the
9. The Commission proposes to adopt the Resolution 750 unwanted emissions limits adopt WRC-19, to apply them to all mobile systems in the 24 GHz band, and to incorporate those limits into its part 30 technical rules as well as codifying them in a new U.S. footnote to the Table of Frequency Allocations (Allocation Table). Under this proposal, as of the effective date of the rules, mobile operations in the 24 GHz band would be required to comply with the current TRP limits adopted at WRC-19. The Commission seeks comment on this proposal and on alternative limits, including the effect of any changes to existing limits on smaller entities. The Commission also seeks comment on the schedule for adoption of any revised limits, including adjustments that should be made for smaller entities to come into compliance. Appropriate out-of-band emissions limits in the 24.25-27.5 GHz band are important to protect passive sensing operations in the 23.6-24.0 GHz band, which are central to weather forecasting and scientific research.
10. Based on the record before the Commission, it appears that the proposed Resolution 750 unwanted emission limits likely strike the appropriate balance between protecting passive sensing and facilitating use of the 24 GHz band.
11. The Commission notes that, while equipment manufacturers support adopting the Resolution 750 limits, Qualcomm, in its comments to the
12. The Commission proposes to adopt the limits set forth in Resolution 750. In doing so, the Commission also seeks comment on whether some changes to these limits may be appropriate to help strike the best balance and better serve the public interest in the United States while protecting EESS operations in the 23.6-24.0 GHz band. For example, CORF asserts that the WRC limits are not stringent enough to protect EESS operations, and it requests that the Commission should either adopt the European OOBE standard it offered going into WRC-19 (−42 dBW in 200 MHz)
13. AT&T, T-Mobile, and CTIA request that the Commissionrejectthe more stringent limits suggested by CORF. AT&T argues that the stricter limits mayhinder the roll-out and growth of 5G services. T-Mobile notes that theResolution 750 limitsfrom the ITUwere carefully considered andare a product of extensive collaboration, and that CORF has not demonstrated why these limits are inadequate. CTIA argues thatadopting CORF's proposal would conflict withthe notice that it asserts was given to bidders in the 24 GHz auctionthat theCommissionwould notadopt limits that are significantly stricter than whatwas agreed to at WRC-19. The Commission seeks comment on CORF's proposal in the record. Parties supporting changes to the Resolution 750 unwanted emission limits should provide additional technical justification and explain why any stricter changes are necessary to protect EESS operations in the United States. While CORF also raises issues concerning RAS, the Commission notes that Resolution 750 was limited to protection of EESS, and RAS is outside the scope of this proceeding. The Commission also notes that RAS observations that are protected under US74 historically have received a lower level of protection than EESS.
14. The Commission proposes to make any changes to the limits on emissions into the 23.6-24.0 GHz band by amending its part 30 rules and adding a footnote to the U.S. Table of Allocations. Since the Commission's part 30 rules already contain a rule governing emissions limits, it appears to be appropriate to incorporate any changes the Commission makes in this proceeding into that rule. CORF, CTIA, and T-Mobile all support incorporating any changes to the Commission's emissions limits into part 30 of the Commission's rules. The Commission seeks comment on alternative approaches.
15. The Commission proposes to apply the Resolution 750 unwanted emissions limits to all mobile operations (as defined in parts 2 and 20 of the Commission's rules)
16. The Commission seeks comment on whether it would be necessary to apply emissions limits stricter than −13 dBm/MHz to fixed operations in the 24 GHz band. Proponents of applying stricter limits as well as those arguing for maintaining the existing limits should provide specific technical data justifying their respective positions, as well as the costs and benefits of applying stricter limits or of keeping the existing limits.
17. Finally, the Commission seeks comment on Ericsson's and AT&T's proposal that indoor small-cell systems be exempt from the Resolution 750 limits. The Commission urges parties who support an exemption for indoor systems to include a technical justification for treating indoor small-cell systems differently. The Commission notes that indoor systems normally run at lower power and should have less difficulty meeting the Resolution 750 limits. Conversely, building attenuation would further reduce the likelihood of unwanted emissions in the 23.6-24 GHz passive band from indoor small cell transmitters.
18. The Commission proposes to apply the new Resolution 750 unwanted emissions limits on the timeframes adopted at WRC-19. Under this proposal, the first phase limits (−33 dBW for base stations, −29 dBW for mobile stations) would apply as of the effective date of the rules, and the second phase limits (−39 dBW for base stations, −35 dBW for mobile stations) would apply to all deployments after September 1, 2027. AT&T, CTIA, Ericsson, Nokia, and T-Mobile support adopting the WRC limits on the timeframes adopted by WRC-19. The Commission notes that no party has alleged that there will be a problem complying with the first phase limits or has asserted that existing deployments in the 24 GHz band would be constrained by such limits. AT&T, Ericsson, and Nokia state they will have equipment that meets the interim Phase 1 standard, and that they are working on compliance with the 2027 standards, which will depend on advances in chipsets and significant research and development.
19. One of the tools that the Commission uses to ensure compliance with its technical rules is its equipment authorization program for RF devices, which is codified in part 2 of its rules. In general, and for 24 GHz band devices used for mobile services, RF devices must comply with the Commission's technical and equipment authorization requirements before they can be imported into or marketed in the United States.
20. IEEE asks that the U.S. apply the stricter Phase 2 standards on an accelerated schedule for new deployments and in 2027 for all deployments, consistent with the European Union. The Commission seeks comment on the feasibility and appropriateness of accelerating the deadline for compliance with the Phase 2 standards. In that regard, the Commission requests that equipment manufacturers and 24 GHz licensees provide further information on timelines for mobile equipment availability and system deployment. As noted above, while equipment manufacturers are working on equipment that would comply with the Phase 2 standards, it is not clear that equipment meeting the Phase 2 standards would be widely available on an accelerated time frame. Furthermore, the Phase 2 standards anticipate ubiquitous deployment of mobile systems in the band, and it is not clear that widespread deployment of mobile systems will occur in the band before 2027. The Commission also notes that licensees in the band in the U.S. will not be required to demonstrate buildout before 2029.
21. NTIA requests that the Commission incentivize early adoption of the 2027 WRC limits, asserting that the WRC limits are based on estimates of gradual 5G deployment, which is at odds with the United States' national priority of rapid 5G deployment. Noting that rapid 5G deployment in a range of frequency bands covering high-band, mid-band, and low-band spectrum is a priority for many countries around the world, and that international 5G deployments are well underway, the Commission seeks comment on NTIA's request. What incentives would facilitate deployment of equipment that meets the Phase 2 limits? Are there steps the Commission can take to encourage the development and deployment of equipment that meets the Phase 2 standards?
22. NTIA urges, and AGU/AMS/NWA agrees, that base stations and user equipment modified or replaced after September 1, 2027, should comply with the post-2027 (
23. The Commission seeks comment on adopting a timetable that matches what was adopted at WRC-19;
24. Currently, the UMFUS rules permit equipment manufacturers the flexibility of demonstrating compliance with the out-of-band emissions limits by using either a TRP or conductive methodology when obtaining equipment certification. To the extent that the Commission adopts new emissions limits to protect passive sensors in the 23.6-24.0 GHz band, the Commission proposes to allow compliance with the unwanted emissions limits for the 23.6-24.0 GHz band to be demonstrated using TRP measurements, and the Commission seeks comment on whether to permit use of conductive power measurements as well.
25. CTIA, Nokia, and AT&T support the Commission permitting use of either TRP or conductive power methodologies to measure emissions, while NTIA, AGU/AMS/NWA, and Ericsson argue that only TRP should be allowed, consistent with the rules adopted at WRC-19. CTIA urges the Commission to allow for measurement of emissions either in terms of TRP or conductive power to provide manufacturers the flexibility to determine the most feasible approach for a particular device without affecting compliance with the established limits. Other commenters assert that the Commission should not permit the conductive power methodology to be used to measure emissions into the 23.6-24.0 GHz band. NTIA suggests that only TRP measurements should be permitted because the Resolution 750 unwanted emissions limits are based on the use of TRP and because conductive power, while useful, is presently less understood than TRP. Ericsson adds that mobile terrestrial systems are increasingly relying on large arrays of active antenna elements in their design, and there are no physical connections to the antenna elements, making conductive power measurements unnecessary. Ericsson does not anticipate encountering any difficulties in performing TRP measurements on low signal levels in the 24.25-24.45 GHz and 24.75-25.25 GHz bands in a controlled chamber environment, such as anechoic chambers, where reliable and repeatable power measurements can be taken at discrete sets of points from all directions from the antenna. AGU/AMS/NWA recognize Ericsson's support for TRP and state that permitting multiple measurement techniques would make it difficult for the scientific community to use the measurement data from licensees to determine if those emissions may be detrimental to passive sensing measurements.
26. The Commission notes that no party objects to including TRP measurements as an acceptable alternative. As the Commission stated in the Spectrum Frontiers proceeding, however, a TRP measurement of a device requires that EIRP measurements be made around a spherical surface surrounding the device for both polarizations, and as a result it can be time consuming and difficult.
27. Marcus & Jornet support adopting the WRC limits but ask the Commission to consider alternative antenna technologies or standards that they believe would protect passive sensing. For example, they urge the Commission to entertain waiver requests for alternative antenna technologies that demonstrate that the resulting emissions will protect the passive satellites to the limits stated in Recommendation ITU-R RS.2017-0. The Commission will consider waiver requests in accordance with its normal practice if a specific request is filed, and in light of the specific circumstances, and does not see
28. Meanwhile, Choyu Networks offers a proposal for Real-time Geospatial Spectrum Sharing (RGSS) as a method to ensure the protection of EESS radiometers from interference while enabling adjacent and coincident radio frequency spectrum to be used for 5G/6G (or alternative) communication networks. While the concept has potential interest, Choyu Networks admits that further research would be necessary to develop even a proof of concept RGSS system. Accordingly, it would appear to be premature to develop proposed rules based on an RGSS system at this time, but the Commission seeks comment on this alternative proposal.
29. Finally, the Commission, as part of its continuing effort to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations
30. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this
31. In the
32. The proposed action is authorized pursuant to sections 4(i), 301, 302, 303(r), 308, 309, and 333 of the Communications Act of 1934, 47 U.S.C. 154(i), 301, 302a, 303(r), 308, 309, 333.
33. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
34.
35. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2018, there were approximately 571,709 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.
36. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships,
37.
38.
39.
40.
41.
42. The proposal in the
43. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for such small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.
44. Having data on the costs and economic impact of the proposals and approaches discussed in the
45. Based on the record from the
46. In the alternative, if the Commission were to propose and adopt its own emissions limits, particularly if the emissions limits were stricter than both the existing emission limits and Resolution 750 emission limits, small entities could be subjected to significantly increased compliance costs without any of the above-mentioned benefits. Further, if the Commission were to propose and adopt less stringent emissions limit requirements or if the Commission simply maintained the existing requirements, the Commission's rules may not provide the necessary protections for passive satellite operations to operate in the 24GHz band and might make it difficult for EESS to make observations free from harmful interference, thereby jeopardizing the accuracy of critical weather forecasting and climatology science data. Instead, the Commission believes its proposal to adopt the Resolution 750 emission limits which were carefully considered and the product of extensive industry collaboration, is the right approach and any potential burdens are outweighed by the benefits of protecting passive observations in the 23.6-24.0 GHz band, including improvements in weather forecasting.
47. Finally, in addition to seeking comment on the costs and service impacts of the Commission's proposals, the
48. None.
49. Accordingly,
Common carriers.
Communications common carriers.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 2 and 30 as follows:
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
(a) * * *
(c) * * *
(146) USxxx In the bands 24.25-24.45 GHz and 24.75-27.5 GHz, the total radiated power (TRP) of emissions from stations in the mobile service in any 200 MHz of the band 23.6-24 GHz shall not exceed −33 dBW/200 MHz for base stations and −29 dBW/200 MHz for mobile stations, and for stations brought into use after September 1, 2027, TRP shall not exceed −39 dBW/200 MHz for base stations and −35 dBW/200 MHz for mobile stations.
47 U.S.C. 151, 152, 153, 154, 301, 303, 304, 307, 309, 310, 316, 332, 1302, unless otherwise noted.
(d)(1) In addition to the limits noted above, for licensees operating mobile equipment in the 24.25-24.45 GHz or 24.75-25.25 GHz bands, the total radiated power of emissions in any 200 MHz of the 23.6−24.0 GHz band shall not exceed −33 dBW (for base stations) or −29 dBW (for mobile stations).
(2) For mobile equipment placed in service after September 1, 2027, the total radiated power of emissions in any 200 MHz of the 23.6-24.0 GHz band shall not exceed −39 dBW (for base stations) or −35 dBW (for mobile stations).
Federal Communications Commission.
Petition for Reconsideration.
Petition for Reconsideration (Petitions) have been filed in the Commission's proceeding Thomas C. Power, on behalf of CTIA.
Oppositions to the Petitions must be filed on or before February 13, 2024. Replies to oppositions must be filed on or before February 8, 2024.
Federal Communications Commission, 45 L Street NE, Washington, DC 20554.
For additional information on this proceeding, contact Stephen Wang of the Wireline Competition Bureau, Telecommunications Access Policy Division, at (202) 418-7400 or
This is a summary of the Commission's document, Report No. 3208, released January 22, 2024. The full text of the Petitions can be accessed online via the Commission's Electronic Comment Filing System at:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule, Request for Comments.
NMFS has received a request from the U.S. Space Force (USSF) for authorization to take marine mammals incidental to launches and supporting activities at Vandenberg Space Force Base (VSFB) in Vandenberg, California from April, 2024 to April, 2029. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue regulations governing the incidental taking of marine mammals incidental to the specified activities. NMFS is proposing regulations to govern that take, and requests comments on the proposed regulations. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision. Missile launches conducted at VSFB, which comprise a smaller portion of the activities, are considered military readiness activities pursuant to the MMPA, as amended by the National Defense Authorization Act for Fiscal Year 2004 (2004 NDAA).
Comments and information must be received no later than February 28, 2024.
Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to
A copy of the USSF's application and other supporting documents and documents cited herein may be obtained online at:
Leah Davis, Office of Protected Resources, NMFS, (301) 427-8401.
This proposed rule, if promulgated, would establish a framework under the authority of the MMPA (16 U.S.C. 1361
We received an application from the USSF requesting 5-year regulations and an associated letter of authorization to incidentally take marine mammals. Take is expected to occur by Level B harassment incidental to launch noise and sonic booms. Please see “Background” below for definitions of harassment.
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). If such findings are made, NMFS must prescribe the permissible methods of taking; “other means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”); and requirements pertaining to the monitoring and reporting of such takings.
Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for proposing and, if appropriate, issuing regulations and an associated letters of authorization, or LOA(s). This proposed rule describes permissible methods of taking and mitigation, monitoring, and reporting requirements for USSF's proposed activities.
The National Defense Authorization Act for Fiscal Year 2004 (2004 NDAA, Pub. L. 108-136) amended the MMPA to remove the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as applied to a “military readiness activity.” Missile launches conducted at VSFB, which comprise a small portion of the activities, are considered military readiness activities pursuant to the MMPA, as amended by the 2004 NDAA.
A subset of the activities described here and for which incidental take of marine mammals is being requested (specifically, missile launches) qualifies as a military readiness activity.
Following is a summary of the major provisions of the regulations regarding USSF rocket and missile launches and supporting activities. These measures include:
• Scheduling launches to avoid lowest tides during harbor seal and California sea lion pupping seasons, when practicable;
• Required flight paths for aircraft takeoffs and landings and minimum altitude requirements to reduce disturbance to haul out areas;
• Required minimum altitudes for unscrewed aerial systems (UAS);
• Required acoustic and biological monitoring during a subset of launches to record the presence of marine mammals and document marine mammal responses to the launches; and
• Required semi-monthly surveys of marine mammal haulouts at VSFB and NCI.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the proposed action qualifies to be categorically excluded from further National Environmental Policy Act (NEPA) review.
Information in the USSF application and this notice collectively provide the environmental information related to proposed issuance of these regulations and subsequent incidental take authorization for public review and comment. We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the request for incidental take authorization.
On November 2, 2022, NMFS received a request from USSF requesting authorization for the take of marine mammals incidental to rocket and missile launch activities and aircraft operations at VSFB in Vandenberg, California. Following NMFS' review of the materials provided, USSF submitted a revised application on May 25, 2023. The application was deemed adequate and complete on May 26, 2023. USSF's request for authorization pertains to incidental take of 6 species of marine mammals, by Level B harassment only.
On June 15, 2023, we published a notice of receipt of the USSF's application in the
The take of marine mammals incidental to rocket and missile launches and aircraft operations at VSFB is currently authorized by NMFS via an LOA issued under current incidental take regulations, which are effective from April 10, 2019 through April 10, 2024 (84 FR 14314; April 10, 2019). To date, NMFS has promulgated incidental take regulations under the MMPA for substantially similar activities at the site four times.
Responsibility for activities at the site were transferred from the U.S. Air Force (USAF) to the USSF in May, 2021 and both entities complied with the requirements (
USSF operations include launch activities for commercial entities, as well as the Department of Defense,
Rocket and missile launch activities create noise (launch noise and/or sonic booms (overpressure of high-energy impulsive sound)) and visual stimulus that can take pinnipeds hauled out on shore along the periphery of VSFB by Level B harassment. In addition, a subset of rocket launches can create noise that affects pinniped haul outs along the shoreline of the Northern Channel Islands (NCI), particularly San Miguel and Santa Rosa islands.
The USSF anticipates incremental increases in launch activity each year with a peak in activity of no more than 110 rocket launches and 15 missile launches occurring in any one year (table 1).
In addition to rocket and missile launch activities at VSFB, aircraft conduct flight operations to support activities at VSFB. Here, “aircraft” includes crewed fixed wing airplanes and rotary wing helicopters, and different types of UAS. Slightly more than 600 aircraft flights occur each year, and approximately 100 of those flights are UAS. These flight operations address mission needs including emergency response, search-and-rescue, delivery of rocket components, launch mission support, security reconnaissance, and training. VSFB no longer has aircraft stationed on site, but “transient” aircraft may be stationed at the site on a temporary basis several times per year for periods of two or more weeks per operation. Take of hauled out pinnipeds from crewed fixed-wing airplanes and helicopter operations are not anticipated because these aircraft adhere to flight paths, minimum altitude requirements, and a buffer zone established to avoid haulouts when possible. In addition, pinnipeds that customarily haul out at sites near the airfield may be acclimated to aircraft and helicopter overflights. However, there is a limited potential for take to result from UAS operations. UAS are categorized by size into five classes, 0-5. While harassment of hauled out pinnipeds from UAS classes 0-2 is unlikely to occur at altitudes of 200 feet (ft) and above (Erbe
The activities proposed by USSF would occur for 5 years, from April 2024 through April 2029. Activities would occur year-round and could occur at any time of day, during any or all days of the week. As annual launch numbers increase, more than one launch could occur on some days.
VSFB occupies approximately 99,100 acres of land and approximately 68 kilometers (km) of coastline in central Santa Barbara County, California (Figure 1). The Santa Ynez River and State Highway 246 divide the base into two distinct parts, North Base and South Base.
Pinnipeds making use of haul-out sites along the coastline of VSFB are affected by launch noise. In addition to these effects at VSFB, some of the rocket launches and first-stage recoveries originating at VSFB may result in sonic booms that impact portions of the NCI, and as such NCI is also considered part of the project area. The NCI comprises four islands (San Miguel, Santa Rosa, Santa Cruz, and Anacapa) located approximately 50 km south of Point
Rocket and missile flights originate from several different launch locations on VSFB, distributed across both North Base and South Base. Currently, there are nine active missile launch sites and seven active space launch facilities. In addition, two new launch sites and one former site on the base are expected to become operational in the future. The two largest classes of UAS use the VSFB airfield, three smaller classes of UAS can be launched from any location that is in keeping with buffers to pinniped haulout and rookery sites. The proximity of the launch sites in relation to specific pinniped haul-out and rookery areas at VSFB is shown in table 2. LF-09 is the closest active missile launch facility to a haul-out area, located about 0.5 km from Little Sal, and LF-10 is the most remote facility from any haul-out area, located about 2.7 km from Lion's Head (see figure 2 in USSF's application).
While rocket and missile launches do not occur in National Marine Sanctuary waters, depending on the direction of a given launch, rockets and missiles may cross over the Channel Islands National Marine Sanctuary.
VSFB is the primary west coast launch facility for placing commercial, government, and military satellites into polar orbit on uncrewed launch vehicles, and for the testing and evaluation of ICBMs and sub-orbital target and interceptor missiles by the Missile Defense Agency (MDA). Below, we discuss in detail, USSF's proposed rocket launches and recoveries, missile launches, and aircraft operations including UAS.
Table 1 shows estimates of the numbers proposed rocket launches, missile launches, and UAS activities for each year. Reporting years would span one year from date of LOA issuance and each successive year thereafter, in accordance with the reporting requirements described in the Proposed Monitoring and Reporting section, below. The anticipated maximum number of launches in one year shown in table 1 is similar to the maximum number of launches in one year analyzed in the 2019 rulemaking (84 FR 14314; April 10, 2019), with a small increase. For this rulemaking, USSF anticipates that the total number of launches would increase from the 500 analyzed for the 2019 rulemaking to 550 over the effective period of this rule. Similarly, the estimated number of launches that may cause a sonic boom that affect haulouts at NCI are proposed to increase from 88 to 104 over the effective period of this rulemaking.
A large percentage of this anticipated increase is expected to consist of smaller launch payloads moved by smaller rockets than previously utilized at VSFB. Accordingly, USSF is developing a new Small Launch Vehicles program (SLV) for the South Base launch sites at VSFB. This program is expected to require as many as 100 launches annually (included in the basewide 110 rocket launch/year total) and may involve two launches per day on some days. We note that “small” rockets (generally those less than 100 ft tall) are less likely to generate sonic booms that could disturb animals at haul outs.
Whether or not sonic booms from launches originating at VSFB affect the NCI depends on the trajectory of the launch, the size of the rocket, and other factors such as environmental conditions. In any given year of this proposed rule, it is expected that fewer than 10 percent of small rockets, 25 percent of medium rockets and 33 percent of large rockets would “boom” the NCI. When these sonic booms events do occur, they tend to disturb animals at haulouts on San Miguel and (occasionally) Santa Rosa Islands. Santa Cruz and Anacapa Islands are not expected to be impacted by sonic booms in excess of 1 pound per square foot (psf). Further, based on several years of onsite behavioral observations and monitoring data, VSFB maintains and NMFS concurs that harassment of marine mammals is unlikely to occur when the intensity of a sonic boom is below 2(psf). Although exact numbers are uncertain, launches that generate a sonic boom at NCI higher than 2 psf are expected to occur no more than 5 times in authorization year 2024, 12 times in 2025, 24 times in 2026, 30 times in 2027 and 33 times in 2028.
Some rocket launches include “boost back” and landing of a rocket component at a launch site on the base or on a floating offsite recovery barge.
A variety of small missiles are launched from various Launch Facilities (LFs) on north VSFB including Minuteman III, an ICBM which is launched from underground silos. USSF is currently modifying several existing silos for testing of the new Ground Based Strategic Defense (GBSD) program, which is expected to replace the Minuteman III as early as 2026. Several types of interceptor and target vehicles are also launched for the MDA. The MDA develops various systems including the Ballistic Missile Defense System (BMDS). The MDA estimates that no more than three missile tests per quarter will be conducted each year over the next 5 years, and none of the missiles would be significantly larger than the Minuteman III currently in use. This limitation (three missiles per quarter and none being larger than the Minuteman III) represents the anticipated extent of missile testing at VSFB over the next 5 years. No more than 15 missiles would be launched per year (table 1).
The trajectories of all missile launches are generally westward and USSF indicates that they do not cause sonic boom impacts on the California mainland or the NCI. Missiles also transition to nearly horizontal flight within seconds of launch and do not create extended noise impacts to the coastline or result in a high degree of response from hauled-out pinnipeds. For these reasons, take on the NCI arising from missile launch operations is not anticipated or requested. All take associated with missile launch operations would occur on VSFB.
The VSFB airfield, located on north VSFB, supports various aircraft operations. Aircraft operations include fixed wing airplanes, rotary wing helicopters and UAS. Of these, only UAS is expected to result in take, as discussed below.
Over the past 5 years, an average of slightly more than 600 flights has occurred each year, approximately 100 of which have been UAS, and USSF anticipates 100 UAS flights per year during the effective period of this proposed rule (table 1). Fixed-wing aircraft use VSFB for various purposes, including delivering rocket or missile components and training exercises. Helicopter (or, rotary wing) operations also occasionally occur at VSFB including transits through the area, exercises and mission support. Emergency helicopter operations, including but not limited to search-and-rescue and wildfire containment actions, also occur occasionally.
Three approved flight paths for airfield access have been configured in order to avoid disturbances from aircraft at established pinniped haul out sites. As a result of these routing measures and minimum altitude criteria, and given that pinnipeds that haul out at VSFB are acclimatized to aircraft and helicopter overflights, USSF does not anticipate take of hauled out pinnipeds from fixed-wing and helicopter operations using the airfield, and NMFS concurs. In addition, no pinniped responses to fixed or rotary wing aircraft have ever been reported and none are anticipated (MMCG and SAIC 2012a).
UAS operations at VSFB may include either rotary or fixed wing uncrewed aircraft. These are typically divided into as many as six classes, which graduate in size from class 0 (which are often smaller than 5 inches in diameter and always weigh less than one pound) to class 5 (which can be as large as a small piloted aircraft). UAS classes 03 can be used in almost any location, while classes 4 and 5 typically require a runway and for that reason would only be operated from the VSFB airfield. The launch frequency and class of UAS conducting the flights is not possible to predict. As stated above, there is a limited potential for take to result from UAS operations. While harassment of hauled out pinnipeds from class 02 is unlikely to occur at altitudes of 200 ft and above (Erbe
In addition to the activities described above, USSF operates a small harbor on the south coast, immediately adjacent to a haulout area. Operation of the harbor currently entails a maximum of two large vessel visits per year and one dredging operation typically conducted every other year. In addition, VSFB estimates that SpaceX conducts approximately 30 2-day operations per year using smaller vessels. NMFS does not anticipate take of marine mammals due to these activities for the reasons described herein, and they are not discussed further beyond the brief explanation provided here. While marine mammals may behaviorally respond in some small degree to the noise generated by dredging operations, given the slow, predictable movements of these vessels, and absent any other contextual features that would cause enhanced concern, NMFS does not expect the proposed dredging to result in the take of marine mammals. Further, routine harbor operations are not anticipated to result in take of marine mammals.
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (see Proposed Mitigation and Proposed Monitoring and Reporting).
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and relevant behavior and life history of the potentially affected species. NMFS fully considered all of this information, and we refer the reader to these descriptions and to additional information regarding population trends and threats that may be found in NMFS' Stock Assessment Reports (SARs);
Table 3 lists all species or stocks for which take is expected and proposed to be authorized for this activity, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. PBR is defined by the MMPA as the maximum number of animals, not including natural
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. We also refer to studies and onsite monitoring to inform abundance and distribution trends within the project area. For some species, such as the Guadalupe fur seal, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' SARs. All values presented in table 3 are the most recent available at the time of publication and are available online at:
As indicated above, all six species (with six managed stocks) temporally and spatially co-occur with the specified activity to the degree that take is reasonably likely to occur. In addition to the 6 species of pinniped expected to be affected by the specified activities, an additional 28 species of cetaceans are expected to occur or could occur in the waters near the project area. However, we have determined that the potential stressors associated with the specified activities that could result in take of marine mammals
California sea otters (
Harbor seals haul out on intertidal sandbars, rocky shores and beaches along the California coast and islands including VSFB and, to a lesser extent, NCI. Coastwide, from 400 to 600 haul-out sites exist (Carretta
Harbor seals generally forage locally but individuals, particularly juveniles, may travel up to 500 km either to find food or suitable breeding areas. The greatest numbers haul out during the molting season, from May into August throughout California (Carretta
Harbor seals regularly use haulouts along the shoreline at VSFB. Haulout sites on VSFB can be found on both south VSFB and north VSFB, including Lion's Head and Little Sal.
The California sea lion occurs in the eastern north Pacific from Puerto Vallarta, Mexico, through the Gulf of California and north along the west coast of North America to the Gulf of Alaska (Barlow
In the nonbreeding season, beginning in late summer, adult and subadult males migrate northward along the coast of California to more northerly states, and are largely absent from the southern breeding areas until the following spring (Laake, 2017; Lowry & Forney, 2005). Females and juveniles also disperse to areas north and west of NCI, but tend to stay in the Southern California area. (Lowry & Forney, 2005; Melin & DeLong, 2000; Thomas
California sea lions also occur in open ocean and coastal waters (Barlow
California sea lions haul out at sites in the southern portion of VSFB and have not been observed at any northern VSFB haulout locations, except for rare individuals affected by domoic acid poisoning (USAF 2020; Evans, 2020). There is no known successful breeding of this species on VSFB.
In 2019 a significant die-off of California sea lions, presumed to be caused by domoic acid toxicity associated with red tide algal blooms, was noted. This event included most of Southern and Central California and included more than 80 deceased California sea lions on VSFB beaches (USAF 2020; Evans, 2020).
California sea lion pupping season begins in late May, peaking on or around the third week of June. Female sea lions nurse their pups for 1 to 2 days, before embarking on progressively longer spans of time away from the haulout site to forage. Typically, the adult female spends 2 to 5 days feeding, before returning to nurse the pup. Females continue a pattern of going to sea for several days and nursing ashore for several days until pups are weaned. The weaning period continues for about 8 to 12 months (Carretta
Females usually range from the Mexican border to as far north as San Francisco. If prey is scarce, particularly during El Niño years, they have been known to extend their range into Oregon. Adult males claim their breeding territories in late May, usually leaving by August, with most animals moving north. Adult males may venture as far north as British Columbia or southeast Alaska.
The California breeding stock of the Northern elephant seal extends from the Channel Islands to the southeast Farallon Islands (Carretta
Northern elephant seals spend little time nearshore and migrate four times a year, traveling to and from breeding/pupping and molting areas and spending more than 80 percent of their annual cycle at sea (Robinson
Although northern elephant seals haul out at south VSFB locations, they were not observed at north VSFB haul outs in 2019 or in 2020. Breeding has been observed on south VSFB since 2017 (Evans, 2020), and pupping at VSFB was first documented in January 2017. Additional pupping has been observed every year since 2017, increasing each year, with a maximum of approximately 40 pups in 2022. Pupping occurs from January through March, with peak breeding in mid-February. Pups are weaned at 3 to 4 weeks of age, then abandoned and undergo their first molt, which can take several weeks. They then return to sea and customary offshore waters at the end of the molting cycle. Currently, the Amphitheatre Cove haul out at VSFB is the primary site used by elephant seals for breeding and pupping, however another location, Boathouse Beach, was the site for two successful pups each year in 2021 and 2022. All age classes and sexes haul out on VSFB, at different times of the year, to rest, undergo molting and to reproduce or occasionally to rest at other times of year. On NCI, pupping activity occurs from December through March. While some animals disperse after the weaning period, elephant seals also haul out onshore during the seasonal molting period from March to August.
The eastern U.S. stock of Steller sea lions ranges from Cape Suckling, Alaska, to California (Cape Suckling is almost at the northernmost part of the Gulf of Alaska, at long. 140° W). Año Nuevo Island, in central California, is now the southernmost known breeding colony for Steller sea lions (Carretta
Steller sea lions range along the north Pacific from northern Japan to California (Perrin
Despite the species' general absence from the area, some Steller sea lions (one to two individuals at a time) have been sighted in the Channel Islands and vicinity. Individual adult and subadult male Steller sea lions have been seen hauled out at San Miguel Island during the fall and winter, and adult and subadult males have occasionally been seen on rocks north of Northwest Point at San Miguel Island in the summer (Delong, 2019). Aerial surveys for pinnipeds in the Channel Islands from 2011 to 2015 encountered a single Steller sea lion at SNI in 2013 (Lowry
In April and May 2012 Steller sea lions were observed at VSFB marking the first time this species had been reported at VSFB over the prior two decades. Since 2012, Steller sea lions have been observed occasionally in routine monthly surveys, with a peak of 16 individuals recorded. In 2019, up to four Steller sea lions were observed on south VSFB during monthly marine mammal counts, and none were observed during monthly counts in the years that followed. While flying to VSFB from Santa Maria for an unrelated project, contract biologists observed and photographed three Steller sea lions at Lion Rock (Point Sal) in October 2017 (Ball, 2017). This offshore haulout site can be exposed to in-air noise levels from missile launches and is included in the take estimates provided below.
Northern fur seals range from southern California to the Bering Sea and west to the Okhotsk Sea and Japan. About 74 percent of the breeding population occurs far north of the project area, on the Pribilof Islands of the southern Bering Sea. The San Miguel Island stock comprises less than one percent of the population. In general, Northern fur seals are highly pelagic, and adult northern fur seals spend more than 300 days per year (about 80 percent of their time) at sea, generally well offshore. While at sea, northern fur seals range throughout the North Pacific (Carretta
Adult males stay on or near haul-outs on NCI from May through August, with some non-breeding individuals remaining until November. Beginning in May, male seals start returning to the breeding islands. Upon arrival males seek to occupy and defend optimal breeding territories before the females arrive. Because males do not leave the breeding territory to feed, their ability to fast is critical. Males remain on their territory an average of 46 days. Adult females generally stay on or near haul-outs beginning in June and extending to fall, sometimes to as late as November. Peak pupping is in early July. Females nurse their newborn pups for 5 to 6 days and then go to sea to forage for 3.5 to 9.8 days. Females continue to cycle between land and sea for the remainder of the nursing period. Their time on land declines to less than 2 days and their time at sea generally increases. Pups are nursed until weaned (about 4 months) and leave the breeding site before their mothers to forage independently. Some juveniles are present year-round, but most juveniles and adults head for the open ocean and a pelagic existence until the following year. Pupping occurs at NCI (San Miguel Island) from June through August. Pupping does not occur at VSFB.
Satellite tracking data from Guadalupe fur seals tagged at Guadalupe Island in Mexico, have shown that the seals transit through offshore waters between 50 and 300 km from the U.S. west coast (Norris
This section provides a discussion of the ways in which components of the specified activity may impact marine mammals and their habitat. The Estimated Take of Marine Mammals section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take of Marine Mammals section, and the Proposed Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and whether those impacts are reasonably expected to, or reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
In-air acoustic effects resulting from rocket launches and recoveries, missile launches and UAS operations may affect hauled out marine mammals. The effects of noise from the USSF's proposed activities have the potential to result in Level B harassment of marine mammals in the action area.
This section contains a brief technical background on sound, the characteristics of certain sound types, and on metrics used in this proposal inasmuch as the information is relevant
Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks or corresponding points of a sound wave (length of one cycle). Higher frequency sounds have shorter wavelengths than lower frequency sounds, and typically attenuate (decrease) more rapidly, except in certain cases in shallower water. Amplitude is the height of the sound pressure wave or the “loudness” of a sound and is typically described using the relative unit of the dB. A sound pressure level (SPL) in dB is described as the ratio between a measured pressure and a reference pressure and is a logarithmic unit that accounts for large variations in amplitude; therefore, a relatively small change in dB corresponds to large changes in sound pressure. The source level (SL) represents the SPL referenced at a distance of 1 m from the source while the received level is the SPL at the listener's position. Note that all airborne sound levels in this document are referenced to a pressure of 20 µPa.
Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Root mean square is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Root mean square accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.
Sound exposure level (SEL; represented as dB re 1 μPa
A-weighting is applied to instrument-measured sound levels in an effort to account for the relative loudness perceived by the human ear, as the ear is less sensitive to low audio frequencies, and is commonly used in measuring airborne noise. The relative sensitivity of pinnipeds listening in air to different frequencies is more-or-less similar to that of humans (Richardson
The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and human activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson
Sounds are often considered to fall into one of two general types: Pulsed and non-pulsed (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (
Pulsed sound sources (
Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (
The effects of sounds on marine mammals are dependent on several factors, including the species, size, and behavior (feeding, nursing, resting,
The effects of sounds from the proposed activities are expected to result in behavioral disturbance of marine mammals. Due to the expected sound levels of the activities proposed and the distance of the activity from marine mammal habitat, the effects of sounds from the proposed activities are not expected to result in temporary or permanent hearing impairment (TTS and PTS, respectively), non-auditory physical or physiological effects, or masking in marine mammals. Data from monitoring reports associated with authorizations issued by NMFS previously for similar activities in the same location as the planned activities (described further below) provides further support for the assertion that TTS, PTS, non-auditory physical or physiological effects, and masking are not likely to occur (USAF, 2013b; SAIC,
Disturbance includes a variety of effects, including subtle changes in behavior, more conspicuous changes in activities, and displacement. Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source or exposure context (
Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok
Controlled experiments with captive marine mammals have shown pronounced behavioral reactions, including avoidance of loud underwater sound sources (Ridgway
The onset of noise can result in temporary, short term changes in an animal's typical behavior and/or avoidance of the affected area. These behavioral changes may include: reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior; avoidance of areas where sound sources are located; and/or flight responses (Richardson
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could potentially be biologically significant if the change affects growth, survival, or reproduction. The onset of behavioral disturbance from anthropogenic sound is dependent upon a number of contextual factors including, but not limited to, sound source frequencies, whether the sound source is moving towards the animal, hearing ranges of marine mammals, behavioral state at time of exposure, status of individual exposed (
Marine mammals that occur in the project area could be exposed to in-air sound that has the potential to result in behavioral harassment of pinnipeds that are hauled out. Airborne sound at certain levels is expected to result in behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled out pinnipeds to exhibit changes in their normal behavior such as a change from resting state to an `alert' posture or to flush from a haulout site into the water.
The results from studies of pinniped response to acoustic disturbance arising from launches and associated sonic booms at VSFB and NCI are highly variable (Holst
Post-launch monitoring of pinniped behavior shows that return to pre-launch numbers of animals and types of behaviors occurs within minutes or up to an hour or two after each launch event, regardless of species.
Responsiveness also varies with time of year and age class, with juvenile pinnipeds being more likely to react by entering the water and temporarily leaving the haulout site. The probability and type of behavioral response also depends on the season, the group composition, and the type of activity or behavior at the time of disturbance. For example, in some cases, harbor seals have been found to be more responsive during the pupping/breeding season (Holst
Pup abandonment could theoretically result in instances where adults flush into the water as a result of sound from an in-season launch. In its application, USSF cites one instance of a stampede on NCI that was triggered by launch noise in excess of that predicted to occur from USSF's proposed activity. No instances of pup abandonment are reflected in site-specific monitoring data. Given there is only one known instance of a stampede and no known pup abandonment, we find that abandonment is not likely to occur from future activities that create similar sound levels as those in the past. While reactions are variable, and can involve abrupt movements by some individuals, biological impacts of observed responses to launch activities and supporting operations appear to be limited in duration and consist of behavioral disruption including temporary abandonment of a haul out area.
Habitat includes, but is not necessarily limited to, rookeries, mating grounds, feeding areas, and areas of similar significance. We do not anticipate that the proposed activities would result in any temporary or permanent effects on the habitats used by the marine mammals in the proposed area, including the food sources they use (
While it is anticipated that the proposed activity may result in marine mammals avoiding certain haulout areas due to temporary ensonification of out-of-water habitat, this impact is temporary and reversible and was discussed earlier in this document, in the context of behavioral modification. No impacts are anticipated to accrue to prey species or to foraging areas and in-water habitat frequented by pinnipeds. The main impact associated with the proposed activity will be temporarily elevated in-air noise levels and the associated reaction of certain pinnipeds, previously discussed in this proposed rule.
This section provides an estimate of the number of incidental takes proposed
Harassment is the only type of take expected to result from these activities. Except with respect to military readiness activities, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which: (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). As stated above, a comparatively small portion of USSF's activities are considered military readiness activities. For military readiness activities, the MMPA defines “harassment” as: (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where the behavioral patterns are abandoned or significantly altered (Level B harassment). The take estimate methodology outlined below is considered appropriate for the quantification of take by Level B harassment based on either of the two definitions.
Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to launch related visual or auditory stimulus. Based on the nature of the activity and as shown in activity-specific studies (described below), Level A harassment is neither anticipated nor proposed to be authorized. As described previously, no serious injury or mortality is anticipated or proposed to be authorized for this activity. Below we describe how the proposed take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) the number of days of activities. We note that while these factors can contribute to a basic calculation to provide an initial prediction of potential takes, additional information that can qualitatively inform take estimates is also sometimes available (
For underwater sounds, NMFS recommends the use of acoustic thresholds that identify the received levels above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment). Thresholds have also been developed identifying the received level of in-air sound above which exposed pinnipeds would likely be behaviorally harassed. Here, thresholds for behavioral disturbance from launch activities have been developed based on observations of pinniped responses before, during, and after launches and UAS activity. For rocket and missile launches at VSFB, given the sound levels and proximity, NMFS assumes that all rocket launches will behaviorally harass pinnipeds of any species hauled out at sites around the periphery of the base. For rocket launches from VSFB that transit over or near NCI, based on several years of onsite behavioral observations and monitoring data, NMFS predicts that those that create a sonic boom over 2.0 psf could behaviorally harass pinnipeds of any species hauled out on NCI. For UAS activity NMFS predicts that, given the potential variability of locations, routing and altitudes necessary to meet mission needs, classes 0-3 could behaviorally harass pinnipeds of any species hauled out at VSFB.
Regarding potential hearing impairment, the effects of launch noise on pinniped hearing were the subject of studies at the site in the past. In addition to monitoring pinniped haul-out sites before, during and after launches, researchers were previously required to capture harbor seals at nearby haulouts and Point Conception to test their sensitivity to launch noises. Auditory Brainstem Response (ABR) tests were performed under 5-year SRPs starting in 1997. The goal was to determine whether launch noise affected the hearing of pinnipeds (MMCG and SAIC 2012a). The low frequency sounds from launches can be intense, with the potential of causing a temporary threshold shift (TTS), in which part or all of an animal's hearing range is temporarily diminished. In some cases, this diminishment can last from minutes to days before hearing returns to normal. None of the seals tested in these studies over a span of 15 years showed signs of TTS or PTS, supporting a finding that launch noise at the levels tested is unlikely to cause PTS and that any occurrence of TTS may be of short duration.
Here, we describe operational and environmental parameters of the activity that are used in estimating the area ensonified above the acoustic thresholds, including source levels and transmission loss coefficient.
Because the haulouts at NCI are more distant from the rocket launch sites than those at VSFB, different methods are used to predict when launches are likely to impact pinnipeds at the two sites. As stated above, for rocket and missile launches at VSFB, NMFS conservatively assumes that all rocket launches will behaviorally harass pinnipeds of any species hauled out at sites around the periphery of the base. For rocket launches from VSFB that transit over or near NCI, NMFS predicts that those that are projected to create a sonic boom over 2 psf could behaviorally harass pinnipeds of any species hauled out on NCI. For UAS activity, NMFS predicts that classes 0-3 could behaviorally harass pinnipeds of any species hauled out at VSFB.
The USSF is not able to predict the exact areas that will be impacted by noise associated with the specified activities, including sonic booms, launch noise and UAS operations. Many different types of launch vehicle types are operated from VSFB. Different combinations of vehicles and launch sites create different sound profiles, and dynamic environmental conditions also bear on sound transmission. As such, the different haul-out sites around the periphery of the base are ensonified to varying degrees when launches and, when applicable, recoveries of first stage boosters occur. USSF is not able to predict the exact timing, types and trajectories of these future rocket launch programs. However, as described below, rocket launches are expected to behaviorally disturb pinnipeds at VSFB and some launches are also expected to disturb pinniped hauled out at NCI. Missiles are only expected to impact pinnipeds at Lion Rock (Point Sal), and
Therefore, for the purposes of estimating take, we conservatively estimate that all haulout sites at VSFB will be ensonified by rocket launch noise above the level expected to result in behavioral disturbance. Different space launch vehicles also have varying trajectories, which result in different sonic boom profiles, some of which are likely to affect areas on the NCI (San Miguel, Santa Rosa, Santa Cruz, and Anacapa). Based on several years of onsite monitoring data, harassment of marine mammals is unlikely to occur when the intensity of a sonic boom is below 2 psf. Santa Cruz and Anacapa Islands are not expected to be impacted by sonic booms in excess of 2 psf (USAF, 2018), therefore, USSF does not anticipate take of marine mammals on these islands, and NMFS concurs. Sonic booms from VSFB launches or recoveries can impact haul out areas and may take marine mammals on San Miguel Island and occasionally on Santa Rosa Island. In order to accommodate the variability of possible launches and (when applicable) sonic booms over NCI, USSF estimates that 25 percent of pinniped haulouts on San Miguel and Santa Rosa Islands may be ensonified to a level above 2 psf. NMFS concurs, and we consider this to be a conservative assumption based on sonic boom models which show that areas predicted to be impacted by a sonic boom with peak overpressures of 2 psf and above are typically limited to isolated parts of a single island, and sonic boom model results tend to overestimate actual recorded sonic booms on the NCI (personal communication: R. Evans, USSF, to J. Carduner, NMFS, OPR).
Modeling has not been required for launches of currently deployed missiles because of their trajectories west of VSFB and north of San Miguel Island and the previously well-documented acoustic properties of the missiles. The anticipated GBSD is expected to utilize approximately the same trajectories as the current ICBM, and the GBSD program will be required to model at least one representative launch. When missiles are launched in a generally western direction (they turn south several hundred miles from VSFB and at high altitude), there is no sonic boom impact on the NCI; thus take of pinnipeds on NCI is not anticipated from missile launches. Given flight characteristics and trajectories, take from missile launch is not anticipated for most species. However, given proximity and the generally western trajectory, noise from missile launches from North Base may take California sea lions that haul out at Lion Rock (Point Sal) near VSFB's northern boundary.
In this section, we bring together the information above and describe take from the three different activity types (rockets, missiles, and UAS) expected to occur at VSFB and NCI, the marine mammal occurrence data (based on two survey series specific to VSFB and NCI), species and location-specific data related the likelihood of either exposure (
NMFS uses a three-tiered scale to determine whether the response of a pinniped on land to stimuli is indicative of Level B harassment under the MMPA (table 5). NMFS considers the behaviors that meet the definitions of both movements and flushes in table 5 to qualify as behavioral harassment. Thus a pinniped on land is considered by NMFS to have been behaviorally harassed if it moves greater than two times its body length, or if the animal is already moving and changes direction and/or speed, or if the animal flushes from land into the water. Animals that become alert or stir without other movements indicative of disturbance are not considered harassed. Prior observations of pinniped responses to certain exposures may be used to predict future responses and assist in estimating take. Here, the levels of observed responses of particular species during monitoring are used to inform take estimate correction factors as described in the species and activity-specific sections below.
Data collected from marine mammal surveys including monthly marine mammal surveys and launch-specific monitoring conducted by the USSF at VSFB, and observations collected by NMFS at NCI, represent the best available information on the occurrence of the six pinniped species expected to occur in the project area. Monthly marine mammal surveys at VSFB are conducted to document the abundance, distribution and status of pinnipeds at VSFB. When possible, these surveys are timed to coincide with the lowest afternoon tides of each month, when the greatest numbers of animals are usually hauled out. Data gathered during monthly surveys include: species, number, general behavior, presence of pups, age class, gender, reactions to natural or human-caused disturbances, and environmental conditions. Some species are observed regularly at VSFB and the NCI (
Take estimates were calculated separately for each stock in each year the proposed regulations would be valid
Launches covered in this authorization are not expected to produce a sonic boom over the mainland except that some first stage recoveries back to launch facilities on the base that may do so. Because first stage recoveries always occur within ten minutes of the initial launch, a response from any given animal to both launch and recovery are considered to be one instance of take, even when both launch and recovery meet or exceed the 2 psf threshold for calculating take.
As described above, rocket launches, missile launches, and UAS activities are expected to result in take of pinnipeds on VSFB at haul outs along the periphery of the base. Because the supporting information and/or methods are different for these three activity types, we describe them separately below. Launches from different launch facilities at VSFB create different degrees of ensonification at specific haul out sites, and further, USSF has limited ability to forecast which launch sites may be used for future launches. As described previously, some launches also involve the recovery of a booster component back to the launch site, or to an alternate offshore location.
As noted above, NMFS first estimated the number of hauled out animals per month at VAFB for each stock. NMFS used marine mammal counts collected by USSF during monthly marine mammal surveys to approximate haulout abundance. NMFS compared monthly counts for a given species from 2020 to 2022 and selected the highest count (sum across all haul out sites) for each month for each species, as indicated in table 6. NMFS then selected the highest monthly count for each species and used that as the estimated number of animals that would be hauled out at any given time during a launch. Because launches from different SLCs impact different haul-outs, we expect that using this highest monthly estimate will result in a conservative take estimate. Therefore, NMFS considers the 2020-2022 survey data relied upon to be the best data available.
As further indicated in the table 7, and described below, the predicted number of animals taken by each launch, by species, is adjusted as indicated to account for the fact that (1) for some species, animals are only hauled out and available to be taken during low tide and (2) years of monitoring reports showing that different species respond behaviorally to launches in a different manner.
USSF assumes that all rocket launches would take, by Level B harassment, animals hauled out at sites around the periphery of the base. Some rocket launches create overpressure at time of launch, and some recoveries of first-stage boosters can create a sonic boom when they return to the launch pad. Some flights also transit over or near portions of the NCI, but potential impacts to marine mammals at the NCI are discussed separately, below. Table 8 lists the proposed take by Level B harassment from rocket launch and recovery activities at VSFB, and below, we describe how NMFS estimated take for each species. Note that northern fur seal and Guadalupe fur seal are not anticipated to occur at VSFB, and therefore, NMFS does not anticipate impacts to these species at VSFB.
Pacific harbor seals haul out regularly at more than ten sites on both north and south VSFB. They are the most widespread pinniped species on VSFB and have been seen in all months, with decades of successful pupping. Rocket launches from sites closer to the haulouts are more likely to cause disturbance, including noise and visual impacts. Many of their haulout sites are inundated during high tide, and NMFS anticipates that take of this species would only occur during low tides. Rocket launches from sites closer to the haulouts are more likely to cause disturbance, including noise and visual impacts. However, to capture variability, we assume that all rocket launches result in Level B harassment of 100 percent of the harbor seals at all VSFB haulouts.
To determine the number of animals that would be taken by Level B harassment, we multiplied the max
California sea lions on VSFB only haul out regularly at Rocky Point (north and south) and Amphitheatre Cove. California sea lions are most abundant at the haul out in Zone G at Lion Rock (Point Sal). Rocket launches from SLC-6, SLC-8, and the future SLC-11, which are closest to North Rocky Point, would be the most likely to result in noise and visual impacts. Rocket launches from SLC-3E and SLC-4E, both farther inland and some four times the distance, are less likely to impact California sea lions at North Rocky Point. During very high tides and strong winds, when spray is heavy, the sea lions often leave this site or are unable to access it. Therefore, NMFS assumes that for any given rocket launch at VSFB, 50 percent of the maximum number of California sea lions that haul out at VSFB may be taken by Level B harassment.
To determine the number of animals that would be taken by Level B harassment, we multiplied the max count indicated in table 6 by the number of proposed launches per year (table 8) for each year of the proposed authorization. As noted in table 6, monitoring data show that, generally speaking, most if not all California sea lions hauled out at VSFB would exhibit a behavioral response to launch stimulus that equates to take by Level B harassment and, therefore, we predict that 100 percent of animals exposed to launch noise will be taken per launch. However, given that most haulout sites at VSFB are inundated at high tide, NMFS applied a 50 percent correction factor (table 7). Therefore, the number of estimated takes = max daily count (112) × tidal correction factor (0.5) × number of rocket launches in the area (40 in year 1,
Northern elephant seals historically hauled out at VSFB only rarely, and most animals observed onsite were subadult males. In 2004, a record count of 188 animals was made, mostly newly weaned seals (MMCG and SAIC 2012a); these numbers continued to increase (unpublished data, however reported annually to NMFS). In November 2016, mature adults were observed in Amphitheatre Cove, and pupping was first documented in January 2017 with 18 pups born and weaned. In January 2018, a total of 25 pups were born and weaned; 26 in 2019, 34 in 2020, 33 in 2021 and 49 in 2022. Two pups were born and weaned at Boathouse Beach in both 2021 and 2022. We assume that this site, in addition to Amphitheater, will support pupping in future years. Pupping occurs from December through March, with peak breeding in mid-February.
To determine the number of animals that would be taken by Level B harassment, we multiplied the max count indicated in table 6 by the number of proposed launches per year (table 8) for each year of the proposed authorization. As noted in table 6, given elephant seals' known lack of sensitivity to noise, based on VSFB monitoring reports and the literature, NMFS predicts that only 15 percent of elephant seals exposed to the launch noise would respond in a manner that constitutes take by Level B harassment, and, therefore, a 15 percent correction factor was applied. We also note that, unlike for harbor seals and California sea lions, Northern elephant seal presence and numbers are not affected by tides. Therefore, the number of estimated takes = highest daily count (302) × behavioral harassment correction factor (0.15) × number of rocket launches in the area for each year (40 in year 1,
Steller sea lions have been observed at VSFB since April 2012 (MMCG and SAIC 2012c), though as indicated in table 6, they were not observed between 2020 and 2022. For purposes of estimating take, USSF estimates that up to five Steller sea lions may haul out at VSFB during any given launch. NMFS multiplied this number by the number of proposed launches per year for each year of the proposed authorization (Table 8). NMFS assumes that all rocket launches result in behavioral disturbance (
As stated in the Description of Proposed Activity section, while harassment of hauled out pinnipeds from UAS classes 0-2 is unlikely to occur at altitudes of 200 ft and above (Erbe
Pacific harbor seals are the most common species at Small Haul-Out 1. USSF estimates that up to six harbor seals may be taken by Level B harassment at Small Haul-Out 1 during any given UAS activity, based upon previous monitoring data at Small Haul-Out site 1. NMFS concurs, and multiplied this number by the number of proposed UAS class 0-3 activities per year (100). Therefore, the number of estimated takes per year = 6 animals × 100 UAS activities, and the resulting take numbers NMFS proposes to authorize are listed in table 9.
California sea lions haul out at Small Haul-Out 1, though they are less abundant than Pacific harbor seal at that site. USSF estimates that up to 1 California sea lion may be taken by Level B harassment at Small Haul-Out 1 during any given UAS activity, based upon previous monitoring data at Small Haul-Out site 1. NMFS concurs, and multiplied this number by the number of proposed UAS class 0-3 activities per year (100). Therefore, the number of estimated takes per year = 1 animal X 100 UAS activities, and the resulting take numbers NMFS proposes to authorize are listed in table 9.
USSF oversees missile launches from seven locations on VSFB. The launches occur on a routine basis up to 15 times per year. In addition to originating from different locations than rockets, missile trajectories are also different. All missile launches tend in north-westerly direction, and missiles in flight transition to a near-horizontal profile shortly after launch. USSF's application describes that missile launches are not anticipated to result in take of pinnipeds at south VSFB, as they do not create a “boom.” However, USSF anticipates, and NMFS concurs, that missile launches from sites in North Base could take California sea lions at Lion Rock (Point Sal), an off-base location. Lion Rock (Point Sal) is the only site at which USSF anticipates that take of pinnipeds may occur during missile activities, and NMFS concurs. Lowry
For purposes of estimating take, NMFS conservatively estimates that up to 518 California sea lions may haul out at Lion Rock (Point Sal) during any given missile launch. This is the higher count of California sea lions at the site from 2016 (Lowry
While USSF does not propose launching rockets from NCI, as noted previously, a subset of VSFB rocket launches transit over or near NCI, and a subset of those may create a sonic boom that affects some portion of pinniped haulouts on NCI (San Miguel and Santa Rosa). No take of pinnipeds on NCI is expected to result from missile launches or UAS activities. To estimate take of marine mammals at NCI resulting from rocket launches at VSFB, NMFS first estimated the number of hauled out animals per species across all potentially affected haulouts on San Miguel and Santa Rosa Islands. NMFS selected the high count from San Miguel and Santa Rosa Islands between 2017 and 2019 (NOAA Technical Memorandum SWFSC-656 (Lowry
Next, NMFS determined the approximate number of sonic booms over 2 psf anticipated to occur over the NCI (28 over 5 years, as reflected in USSF's application). USSF's application indicates that during previous monitoring of pinnipeds on NCI during rocket launches, few to no behavioral reactions that would qualify as Level B harassment using the the 3-point scale (table 5) were observed during sonic booms of less than 2 psf. Therefore, in estimating take herein, NMFS assumes that take of marine mammals will only occur during sonic booms of 2 psf or greater. Summarizing 20 years of sonic boom modeling (MMCG and SAIC, 2012a), we anticipate that no more than 25 percent of space launches will produce a sonic boom greater than 2 psf over the NCI (estimated to be 28 launches over 5 years). On one occasion, pinnipeds on one side of San Miguel Island, reacted to a boom, while animals four miles away on the other did not react, nor was the boom detected there by acoustic instruments (MMCG and SAIC, 2012a). Therefore, NMFS multiplied the number of annual booms (table 13) by a 0.25 correction factor for all species and rounded each year up to the next whole number. This is referred to as step 2 below.
Next, NMFS multiplied the number of animals anticipated to be at a haulout during a launch (calculated in step 1) by the number of annual launches anticipated to affect animals at the haulouts (calculated in step 2), and then multiplied the product by the likelihood of a given species responding in a manner that would be considered take by Level B harassment (table 13). NMFS describes the calculations in further detail for each species, below.
For harbor seal, the sum of the high counts at the San Miguel and Santa Rosa haulouts during 2017 and 2019 is 520. NMFS expects Pacific harbor seals to occur at the haulouts year round, and therefore did not apply a correction for seasonal occurrence. NMFS multiplied the harbor seal haulout abundance (520) by the number of booms anticipated to overlap the haulouts (table 13, calculated in step 2 above). Based on years of monitoring reports showing the responses of harbor seals at NCI (which is farther from the launch sites than the VSFB sites) to launches, NMFS anticipates that 50 percent of harbor seals exposed to a sonic boom overlapping a haulout will be taken by Level B harassment. Therefore, for each year, the number of estimated takes = 520 animals × number of sonic booms over 2 psf × 0.5, and the resulting take numbers NMFS proposes to authorize are listed in table 13.
For California sea lion, the sum of the high counts at the San Miguel and Santa Rosa haulouts during 2017 and 2019 is 62,969. While some California sea lions remain in the general vicinity of southern California throughout the year and may haul out onshore, the use of haulout sites at NCI is principally for breeding during peak summer months. Given the fact that most male sea lions and a substantial portion of all sea lions are not onshore at NCI outside of the breeding season, we applied a 50 percent correction factor to better relate instances of take to the number of individuals that may be hauled out and subject to acoustic effects of launches. NMFS multiplied the California sea lion haulout abundance (62,969) by the number of booms anticipated to overlap the haulouts (Table 13, calculated in Step 2 above). Based on years of monitoring reports showing the responses of California sea lions at NCI to launches, NMFS anticipates that 25 percent of California sea lions exposed to a sonic boom overlapping a haulout will be taken by Level B harassment. Therefore, for each year, the number of estimated takes = 62,969 animals × number of sonic booms over 2 psf × 0.25, and the resulting take numbers NMFS proposes to authorize are listed in table 13.
For Northern elephant seal, the sum of the high counts at the San Miguel and Santa Rosa haulouts during 2017 and 2019 is 3,960. NMFS expects Northern elephant seals to occur at the haulouts year round, and therefore did not apply a correction for seasonal occurrence. NMFS multiplied the Northern elephant seal haulout abundance (3,960) by the number of booms anticipated to overlap the haulouts (table 13, calculated in step 2 above). Based on years of monitoring reports showing the responses of Northern elephant seals at NCI to launches, NMFS anticipates that 5 percent of Northern elephant seals exposed to a sonic boom overlapping a haulout will be taken by Level B harassment. Therefore, for each year, the number of estimated takes = 3,960 animals × number of sonic booms over 2.0 psf × 0.05, and the resulting take numbers NMFS proposes to authorize are listed in table 13.
For Northern fur seal, the sum of the high counts at the San Miguel and Santa Rosa haulouts during 2017 and 2019 is 4,377. Northern fur seals spend approximately 80 percent of the year at sea, generally well offshore (Carretta
For Guadalupe fur seal, the sum of the high counts at the San Miguel and Santa Rosa haulouts during 2017 and 2019 is 5. NMFS estimates the potential for Guadalupe fur seals to occur at the haulouts to be comparable throughout the year and, therefore, did not apply a correction for seasonal occurrence. NMFS multiplied the Guadalupe fur seal haulout abundance (5) by the number of booms anticipated to overlap the haulouts (table 13, calculated in step 2 above). Based on years of monitoring reports showing the responses of Guadalupe fur seals at NCI to launches, NMFS anticipates that 50 percent of Guadalupe fur seals exposed to a sonic boom overlapping a haulout will be taken by Level B harassment. Therefore, for each year, the number of estimated takes = 5 animals × number of sonic booms over 2 psf × 0.5, and the resulting take numbers NMFS proposes to authorize are listed in table 13.
Table 14 sums the take estimates described above for VSFB (rocket launches, missile launches, and UAS) and NCI (rocket launches only). These takes represent the number of instances of harassment of pinnipeds following exposure to the indicated activities. However, every take does not necessarily, and in this case is not expected to, represent a separate individual. Rather, given the known repeated use of haulouts by pinnipeds of all species, it is reasonable to expect that some subset of the calculated takes represent repeated takes of the same individuals, which means that the number of individuals taken is expected to be significantly smaller than the number of instances of take.
In order to issue regulations and an LOA under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, and their habitat (50 CFR 216.104(a)(11)). The NDAA for Fiscal Year 2004 amended the MMPA as it relates to military readiness activities and the incidental take authorization process such that “least practicable impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, NMFS considers two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is
(2) The practicability of the measures for applicant implementation, which may consider such things as cost and impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
Below, we describe the proposed mitigation measures for launches (rocket and missile), manned aircraft, and UAS.
USSF must provide pupping information to launch proponents at the earliest possible stage in the launch planning process to maximize their ability to schedule launches to minimize pinniped disturbance during pupping seasons on VSFB from 1 March to 30 April and on the Northern Channel Islands from 1 June-31 July. If practicable, rocket launches predicted to produce a sonic boom on the Northern Channel Islands >3 psf from 1 June-31 July will be scheduled to coincide with tides in excess of +1.0 ft, with an objective to do so at least 50 percent of the time. USSF will provide a detailed plan to NMFS for approval that outlines how this measure will be implemented. This measure will minimize occurrence of launches during low tides when harbor seals and California sea lions are anticipated to haul out in the greatest numbers during times of year when pupping may be occurring, therefore further reducing the already unlikely potential for separation of mothers from pups and potential for injury during stampedes. While harbor seal pupping extends through June, harbor seals reach full size at approximately two months old, at which point they are less vulnerable to disturbances. In consideration of that and practicability concerns raised by USSF, this measure does not extend through the later portion of the harbor seal pupping season at VSFB.
For manned flight operations, aircraft must use approved routes for testing and evaluation. Manned aircraft must also remain outside of a 1,000-ft buffer around pinniped rookeries and haul-out sites (except in emergencies such as law enforcement response or Search and Rescue operations, and with a reduced, 500-ft buffer at Small Haul-out 1). As discussed earlier, use of these routes and implementation of the buffer would avoid behavioral disturbance of marine mammals from manned aircraft operations.
UAS classes 0-2 must maintain a minimum altitude of 300 ft over all known marine mammal haulouts when marine mammals are present, except at take-off and landing. Class 3 must maintain a minimum altitude of 500 ft, except at take-off and landing. UAS classes 4 and 5 only operate from the VSFB airfield and must maintain a minimum altitude of 1,000 ft over marine mammal haulouts except at take-off and landing. USSF must not fly class 4 or 5 UAS below 1,000 ft over haulouts.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present while conducting the activities. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
The USSF has proposed a suite of monitoring measures on both VSFB and the NCI to document impacts of the specified activities on marine mammals. These proposed monitoring measures include both routine, semi-monthly counts at all haul out sites on VSFB, and launch-specific monitoring at VSFB and/or NCI when specific criteria are met. For monitoring at VSFB and NCI, monitoring must be conducted by at least one NMFS-approved PSO trained in marine mammal science. PSOs must have demonstrated proficiency in the identification of all age and sex classes of both common and uncommon pinniped species found at VSFB and the NCI. They must be knowledgeable of approved count methodology and have experience in observing pinniped behavior, especially that due to human disturbances, to document pinniped activity at the monitoring site(s) and to record marine mammal response to base operations. In the event that the requirement for PSO monitoring cannot be met (such as when access is prohibited due to safety concerns), daylight or night-time video monitoring may be used in lieu of PSO monitoring. Specific requirements for monitoring locations at VSFB and NCI respectively, are described in additional detail below.
At VSFB, USSF must conduct marine mammal monitoring and take acoustic measurements for all new rockets (for both existing and new launch proponents using the existing facilities) that are larger or louder than those that
For the purposes of establishing monitoring criteria for VSFB haulouts, computer software is used to model sound pressure levels anticipated to occur for a given launch and/or recovery. Sonic boom modeling will be performed prior to the first three small or medium rocket launches from new launch proponents or at new launch facilities, and all heavy or super-heavy rocket launches. PCBoom, a commercially available modeling program, or an acceptable substitute, will be used to model sonic booms from new vehicles.
Launch parameters specific to each launch will be incorporated into each model run, including: launch direction and trajectory, rocket weight, length, engine thrust, engine plume drag, and launch profile (vehicle position versus time from launch to first-stage burnout), among other aspects. Various weather scenarios will be analyzed from NOAA weather records for the region, then run through the model. Among other factors, these will include the presence or absence of the jet stream, and if present, its direction, altitude and velocity. The type, altitude, and density of clouds will also be considered. From these data, the models will predict peak amplitudes and impacted locations. As described below, this approach is also used to assess whether thresholds (Table 16) for marine mammal monitoring on NCI could be exceeded or not, and whether marine mammal monitoring will be necessary for animals hauled out at NCI.
In general, on both VSFB and NCI, event-specific monitoring typically involves four to six observations of each significant haul-out area each day, over a period of 3 to 5 hours. For launches that occur during the harbor seal pupping season (March 1 through June 30) or when higher numbers of California sea lions are present (June 1 through July 31), monitoring will be conducted by at least one NMFS-approved protected species observer (PSO) trained in marine mammal science. Authorized PSOs shall have demonstrated proficiency in the identification of all age and sex classes of all marine mammal species that occur at VSFB. They shall be knowledgeable of approved count methodology and have experience in observing pinniped behavior, especially that due to human disturbances.
When launch monitoring is required, monitoring will begin at least 72 hours prior to the launch and continue through at least 48 hours after the launch. For launches within the harbor seal pupping season, a two-week follow-up pup survey will be required to ensure that there were no adverse effects to pups. During daylight monitoring, time-lapse video recordings will be made to capture the reactions of pinnipeds to each launch, and during nighttime monitoring, USSF will employ night video monitoring, when feasible. Monitoring will include multiple surveys each day. When possible, PSOs will record: species, number, general behavior, presence of pups, age class, gender, and reaction to launch noise, or to natural or other human-caused disturbances. They will also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
USSF will conduct marine mammal monitoring and take acoustic measurements at the NCI if the sonic boom model indicates that pressures from a boom will reach or exceed the psf level detailed in table 15 during the indicated date range. These dates were determined to be appropriate to account for sensitive seasons, primarily pupping, for the various pinniped species.
USSF will use specialized acoustic instruments to record sonic booms generated by launches from VSFB and resulting overflights or recoveries predicted to affect NCI haul out sites. VSFB will analyze the recordings to determine the intensity, duration, and frequency of sonic booms and resulting marine mammal responses in order to compare monitoring results with levels considered potentially harmful to marine mammals. The analysis can also be used to validate the efficacy of the model.
Monitoring locations on NCI will be selected based upon the model results, prioritizing a significant haulout site on one of the islands where the maximum sound pressures are expected to occur. Currently, monitoring the reactions of northern fur seals and Pacific harbor seals to sonic booms is of a higher priority than monitoring of California sea lions and northern elephant seals, for which more data is currently available (Table 8). Monitoring the reactions of mother-pup pairs of any species is also a high priority.
Considering the large numbers of pinnipeds (sometimes thousands) that occur on some NCI beaches, while estimates of the entire beach population will be made and their reactions to the launch noise noted, more focused and detailed monitoring will be conducted on a smaller subset or focal group. Photos and/or video recordings will be collected for daylight launches when feasible, and if the launch occurs in darkness night vision equipment will be used. Potential impediments to effective use of photographic and video equipment include periods of reduced visibility, terrain that obscures animals from view from one observation point, severe glare and fog that can occur, and/or other factors.
Monitoring will be conducted by at least one NMFS-approved PSO who is trained in marine mammal science. Another person will accompany the monitor for safety reasons. Monitoring will commence at least 72 hours prior to the launch, during the launch and at least 48 hours after the launch, unless no sonic boom is detected by the monitors and/or by the acoustic recording equipment, at which time monitoring would be stopped. If the launch occurs in darkness, night vision equipment will be used. Monitoring for each launch will include multiple surveys each day that record, when possible: species, number, general behavior, presence of pups, age class, gender, and reaction to sonic booms or natural or human-caused disturbances. Photos and/or video recordings will be taken when feasible. Environmental conditions will also be recorded, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
USSF will continue to test equipment and emerging technologies, including but not limited to night vision cameras, newer models of remote video cameras and other means of remote monitoring at both VSFB and on the NCI. UAS-based or space-based technologies that may become available will be evaluated for suitability and practicability, and for any advantage that remote sensing may provide to existing monitoring approaches, including ensuring coverage when scheduling constraints or other factors impede onsite monitoring at NCI.
Multiple years of monitoring indicates that missile launches do not result in significant take (
When missile launch monitoring is required, monitoring will include multiple surveys each day. When possible, PSOs will record: species, number, general behavior, presence of pups, age class, gender, and reaction to launch noise, or to natural or other human-caused disturbances. They will also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
USSF conducts marine mammal surveys on a regular basis in addition to the monitoring that is required based on launch characteristics and sound pressure thresholds, described above. These regular surveys help characterize onsite trends in pinniped presence and abundance and, over the longer term, provide important context for interpreting seasonal trends and launch-specific monitoring results. The current monthly surveys have allowed researchers to assess haul-out patterns and relative abundance over time, presenting a better picture of pinniped population trends at VSFB and whether USSF operations are resulting in cumulative impacts. For the period of this LOA, and in conjunction with proposed changes of monitoring criteria for launches, the applicant proposes to change the frequency of sentinel surveys from monthly to semi-monthly (two surveys per month).
Past surveys have captured important data including novel occurrences (such as unsuccessful California sea lion pupping on VSFB in 2003 and northern elephant seal pupping in 2017) and emerging or fleeting trends (such as greater numbers of northern elephant seals hauling out in 2004, and a temporary increase in California sea lions onsite in 2018 and 2019). These results, in conjunction with anticipated changes in launch activity and environmental factors underscore the value of consistent surveys collected on a regular basis, to provide sound context for launch-specific monitoring results.
USSF will conduct semi-monthly surveys (two surveys per month, rather than the current monthly surveys) to monitor the abundance, distribution, and status of pinnipeds at VSFB. Whenever possible, these surveys will be timed to coincide with the lowest afternoon tides of each month when the greatest numbers of animals are usually hauled out. South VSFB surveys start about two hours before the low tide and end two hours afterward. North VSFB surveys are either conducted by a separate surveyor on the same day as south VSFB, or on the day before/after south VSFB surveys. North VSFB surveys require approximately 90 minutes. Monitoring during nighttime low tides is not possible because of the dangerously unstable nature of the bluffs overlooking many of the observation points. Occasional VSFB or area closures also sometimes preclude monitoring on a given day, in which case the next best day will be selected.
NMFS-approved PSOs will gather the following data at each site: species, number, general behavior, presence of pups, age class, gender, and any reactions to natural or human-caused disturbances. They will also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
The regulations governing the take of marine mammals incidental to launches and supporting activities at VSFB contain an adaptive management component. Our understanding of the effects of launches and supporting activities (
The reporting requirements associated with this rule are designed to provide NMFS with monitoring data from the previous year to allow NMFS to consider whether any changes to existing mitigation, monitoring or reporting requirements are appropriate. The use of adaptive management also allows NMFS to consider new information from different sources to determine (with input from the USSF regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications will have a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring and if the measures are practicable. If the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of the planned LOA in the
Proposed reporting requirements would include launch monitoring reports for each launch where monitoring is required or conducted, annual reports describing all activities and monitoring conducted in the project area that are covered under this proposed rule during each year, and a comprehensive 5-year report.
A launch monitoring report containing the following information would be submitted to NMFS within 90 days after each rocket launch where monitoring is required:
• Date(s) and time(s) of the launch (and sonic boom, if applicable);
• Monitoring program design; and
• Results of the monitoring program, including, but not necessarily limited to:
○ Date(s) and location(s) of marine mammal monitoring;
○ Number of animals observed, by species, on the haulout prior to commencement of the launch or recovery;
○ General behavior and, if possible, age (including presence of pups) and sex class of pinnipeds hauled out prior to the launch or recovery;
○ Number of animals, by species, age, and sex class, that responded at a level indicative of harassment;
○ Number of animals, by species, age, and sex class that entered the water, and any behavioral responses by pinnipeds that were likely in response to the specified activities, including in response to launch noise or a sonic boom;
○ Environmental conditions including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction; and
○ Results of acoustic monitoring, including the recorded sound levels associated with the launch and/or sonic boom (if applicable).
If a dead or seriously injured pinniped is found during post-launch monitoring, the incident must be reported to the NMFS Office of Protected Resources and the NMFS West Coast Regional Office immediately.
USSF must submit an annual report to NMFS on March 1st of each year that summarizes the data reported in all
A final comprehensive 5- year report would be submitted to NMFS no later than 180 days prior to expiration of these regulations. This report must summarize the findings made in all previous reports and assess both the impacts at each of the major rookeries and assess any cumulative impacts on marine mammals from the specified activities.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, this introductory discussion of our analysis applies to all the species listed in table 3, given that many of the anticipated effects of this project on different marine mammal stocks are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, they are described independently in the analysis below.
Activities associated with the proposed activities, as outlined previously, have the potential to disturb and temporarily displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment only, from airborne sounds resulting from launches and recoveries, including sonic booms from certain launches and sound or visual stimuli from UAS operations. Based on the best available information, including monitoring reports from similar activities conducted at the site, the Level B harassment of pinnipeds would likely be limited to reactions such as moving a short distance, with some hauled out animals moving toward or entering the water for a period of time following the disturbance.
As mentioned previously, different species of marine mammals and different conditions at haul out sites can result in different degrees of response from the animals. Sufficient data collected onsite can be used to characterize the relative tendency of species to react to acoustic disturbance and, specifically, to noise from VSFB launches and operations.
These distinctions in species response are discussed above in the Potential Effects of Specified Activities on Marine Mammals and Their Habitat section, and correction factors for species sensitivity are applied to the take estimates provided in this document.
As discussed earlier, Level B harassment of pinnipeds from rocket and missile launch activities or UAS exposure is primarily expected to be of relatively short duration, in the form of changing position, direction, or location on the haulout or, on a subset of occasions, flushing into the water for some amount of time (up to a few hours). UAS flights would be conducted in accordance with minimum altitude requirements designed to minimize impacts over haulouts and planning measures are in place to minimize launch effects to pinnipeds on beaches where pupping is occurring. Given the potential for seasonal site fidelity, it is likely that some individuals will be taken multiple times during the course of the year as a result of exposure to multiple launches, and potentially UAS overflights. However, given the intermittency of the launches and the fact that they do not all originate from the same location, these repeated exposures are not expected to result in prolonged exposures over multiple days. Thus, even repeated instances of Level B harassment of some small subset of an overall stock is unlikely to result in any significant realized decrease in fitness of those individuals, and thus would not result in any adverse impact to the stock as a whole. Level B harassment would be reduced to the level of least practicable adverse impact through use of mitigation measures described above.
As discussed earlier, some of the beaches that may be impacted by launch activities and UAS overflights support pupping in some months, specifically for harbor seals (March through June on VSFB and NCI), California sea lions (May through August on NCI), elephant seal (January through March on VSFB and December through March on NCI), and northern fur seal (June through August on San Miguel Island, NCI).
Broadly speaking, flushing of pinnipeds into the water has the potential to result in mother-pup separation, or in extreme circumstances could result in a stampede, either of which could potentially result in serious injury or mortality. However, based on the best available information, including reports from over 20 years of monitoring pinniped response to launch noise at VSFB and the NCI, no serious injury or mortality of marine mammals is anticipated as a result of the proposed activities. Further, USSF is required to provide pupping information to launch proponents at the earliest possible stage in the launch planning process, to maximize their ability to schedule launches to minimize pinniped disturbance during Pacific harbor seal pupping on Vandenberg SFB (1 March to 30 April) and California sea lion pupping on the Northern Channel Islands (1 June-31 July of each year). If practicable, rocket launches predicted to produce a sonic boom on the Northern Channel Islands >5 psf during the California sea lion pupping season will be scheduled to coincide with tides in excess of +1.0 ft, with an objective to achieve such avoidance at least 50 percent of the time which is expected to minimize the impacts at places and times where pupping could be occurring. Even in the instances of pinnipeds being harassed by sonic booms from rocket launches at VSFB, no
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No injury, serious injury, or mortality are anticipated or authorized;
• The anticipated instances of Level B harassment are expected to consist of, at worst, temporary modifications in behavior (
• The proposed activities are expected to result in no long-term changes in the use by pinnipeds of rookeries and haulouts in the project area, based on over 20 years of monitoring data; and
• The presumed efficacy of planned mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted previously, only take of small numbers of marine mammals may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. Here, a small portion of the activities (missile launches only) are considered military readiness activities, but we have conducted the assessment considering the totality of the take considered for this proposed rule. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the maximum number of individuals taken in any year to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted maximum annual number of individuals to be taken is fewer than one-third of the species or stock abundance, the take is considered to be of small numbers. See 86 FR 5438-5440, January 19, 2021. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities. Here, we considered the tendency to show site fidelity among affected species, their seasonal distribution trends and the likelihood of individual animals being disturbed repeatedly (
For every year, the instances of take proposed for authorization of northern elephant seal, Steller sea lion, and Guadalupe fur seal comprise less than one-third of the best available population abundances (table 14). The number of animals authorized to be taken from these stocks would be considered small relative to the relevant stock's abundances even if each estimated instance of take occurred to a new individual, which is an unlikely scenario.
For harbor seals and California sea lions (years 4 and 5 only), and Northern fur seals (years 3, 4, and 5 only), the highest annual estimated instances of take are greater than or equal to one-third of the best available stock abundance (36, 33, and 42 percent, respectively). However, as noted previously, the number of expected instances of take do not necessarily represent the number of individual animals expected to be taken. The same individual can incur multiple takes by Level B harassment over the course of an activity that occurs multiple times in the same area (such as the USSF's proposed activity) and especially where species have documented site fidelity to a location within the project area, as is the case here. Additionally, due to the nature of the specified activity—launch activities affecting animals at specific haul out locations, rather than a mobile activity occurring throughout the much larger stock range—only a much smaller portion of the stock would be expected to be impacted. Thus, while we propose to authorize the instances of incidental take of these species shown in table 14, the number of individuals that would be incidentally taken by the proposed activities would, in fact, be substantially lower than the authorized instances of take, and less than one third of the stock abundance for each of these species. We base the small numbers determination on the number of individuals taken versus the number of instances of take, as is appropriate when the information is available.
Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals would be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the ESA of 1973 (ESA; 16 U.S.C. 1531
NMFS is proposing to authorize a limited amount of take, by Level B harassment (5-23 annually, 70 over the
Federal agency actions that are likely to injure national marine sanctuary resources are subject to consultation with the Office of National Marine Sanctuaries (ONMS) under section 304(d) of the National Marine Sanctuaries Act (NMSA). While rocket and missile launches do not occur in national marine sanctuary waters, depending on the direction of a given launch, rockets and missiles may cross over the Channel Islands National Marine Sanctuary. NMFS will work with NOAA's Office of National Marine Sanctuaries to fulfill our responsibilities under the NMSA as warranted and will complete any NMSA requirements prior to a determination on the issuance of the final rule and LOA.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 (ITAs with no anticipated serious injury or mortality) of the Companion Manual for NAO 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed ITA qualifies to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the ITA request.
NMFS requests interested persons to submit comments, information, and suggestions concerning the USSF request and the proposed regulations (see
Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this proposed rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The USSF is the sole entity that would be subject to the requirements in these proposed regulations, and the USSF is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared. This rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act because the applicant is a Federal agency.
Exports, Fish, Imports, Marine mammals, Reporting and recordkeeping requirements, Transportation.
16 U.S.C. 1361
(a) Regulations in this subpart apply only to the United States Space Force (USSF) and those persons it authorizes to conduct activities on its behalf, for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section incidental to rocket and missile launches and supporting operations.
(b) The incidental taking of marine mammals under these regulations may be authorized in a Letter of Authorization (LOA) only for activities originating at Vandenberg Space Force Base (VSFB).
(a) Regulations in this subpart are effective from April 10, 2024, through April 10, 2029.
(b) [Reserved]
(a) Under an LOA issued pursuant to § 216.106 of this chapter and §§ 217.66 or 217.67, the Holder (hereinafter the USSF) may incidentally, but not intentionally, take marine mammals by Level B harassment, as described in § 217.60(a) and (b), provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
(b) The incidental take of marine mammals by the activities listed in § 217.60 is limited to the following species and stocks:
(a) Except for takings contemplated in § 217.62 and authorized by a LOA issued under § 216.106 of this chapter and §§ 217.66 and 217.67, it shall be unlawful for any person to do any of the following in connection with the activities listed in § 217.60:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of
(2) Take any marine mammal species or stock not specified in such LOAs;
(3) Take any marine mammal specified in such LOAs in any manner other than as specified; or
(4) Take a marine mammal specified in such LOAs if NMFS determines after notice and comment that the taking allowed for one or more activities under 16 U.S.C. 1371(a)(5)(A) is having or may have more than a negligible impact on the species or stocks of such marine mammal.
(b) [Reserved]
(a) When conducting the activities identified in § 217.60(a) and (b), the mitigation measures contained in any Letter of Authorization issued under § 216.106 of this chapter and §§ 217.66 or 217.67 must be implemented. These mitigation measures include (but are not limited to):
(1) USSF must provide pupping information to launch proponents at the earliest possible stage in the launch planning process and direct launch proponents to, if practicable, avoid scheduling launches during pupping seasons on VSFB from 1 March to 30 April and on the Northern Channel Islands from 1 June-31 July. If practicable, rocket launches predicted to produce a sonic boom on the Northern Channel Islands >3 psf from 1 June-31 July will be scheduled to coincide with tides in excess of +1.0 ft, with an objective to do so at least 50 percent of the time.
(2) For manned flight operations, aircraft must use approved routes for testing and evaluation. Manned aircraft must also remain outside of a 1,000-ft buffer around pinniped rookeries and haul-out sites (except in emergencies such as law enforcement response or Search and Rescue operations, and with a reduced, 500-ft buffer at Small Haul-out 1).
(3) UAS classes 0-2 must maintain a minimum altitude of 300 ft over all known marine mammal haulouts when marine mammals are present, except at take-off and landing. Class 3 must maintain a minimum altitude of 500 ft, except at take-off and landing. UAS classes 4 and 5 only operate from the VSFB airfield and must maintain a minimum altitude of 1,000 ft over marine mammal haulouts except at take-off and landing. USSF must not fly class 4 or 5 UAS below 1,000 ft over haulouts.
(b) [Reserved]
(a) Monitoring at VSFB and NCI must be conducted by at least one NMFS-approved Protected Species Observer (PSO) trained in marine mammal science. PSOs must have demonstrated proficiency in the identification of all age and sex classes of all marine mammal species that occur at VSFB and on NCI. They must be knowledgeable of approved count methodology and have experience in observing pinniped behavior, especially that due to human disturbances.
(b) In the event that the PSO requirements described in paragraph (a) of this section cannot be met (
(c) At VSFB, USSF must conduct marine mammal monitoring and take acoustic measurements for all new rockets (for both existing and new launch proponents using the existing facilities) that are larger or louder than those that have been previously launched from VSFB during their first three launches and for the first three launches from any new facilities during March through July.
(1) For launches that occur during the harbor seal pupping season (March 1 through June 30) or when higher numbers of California sea lions are present (June 1 through July 31), monitoring must be conducted by at least one NMFS-approved PSO trained in marine mammal science.
(2) When launch monitoring is required, monitoring must begin at least 72 hours prior to the launch and continue through at least 48 hours after the launch. Monitoring must include multiple surveys each day.
(3) For launches within the harbor seal pupping season, USSF must conduct a follow-up survey of pups.
(4) For launches that occur during daylight, USSF must make time-lapse video recordings to capture the reactions of pinnipeds to each launch. For launches that occur at night, USSF will employ night video monitoring, when feasible.
(5) When possible, PSOs must record: species, number, general behavior, presence and number of pups, age class, gender, and reaction to launch noise, or to natural or other human-caused disturbances. PSOs must also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
(d) USSF must conduct sonic boom modeling prior to the first three small or medium rocket launches from new launch proponents or at new launch facilities, and all heavy or super-heavy rocket launches.
(e) USSF must conduct marine mammal monitoring and take acoustic measurements at the NCI if the sonic boom model indicates that pressures from a boom will reach or exceed 5 psf from 1 March through 31 July or 7 psf from 1 August through 30 September. No monitoring is required on NCI from 1 October through 28 February.
(1) The monitoring site must be selected based upon the model results, prioritizing a significant haulout site on one of the islands where the maximum sound pressures are expected to occur.
(2) USSF must estimate the number of animals on the monitored beach and record their reactions to the launch noise and conduct more focused monitoring on a smaller subset or focal group.
(3) Monitoring must commence at least 72 hours prior to the launch, during the launch and at least 48 hours after the launch, unless no sonic boom is detected by the monitors and/or by the acoustic recording equipment, at which time monitoring may be stopped.
(4) For launches that occur in darkness, USSF must use night vision equipment.
(5) Monitoring for each launch must include multiple surveys each day that record, when possible: species, number, general behavior, presence of pups, age class, gender, and reaction to sonic booms or natural or human-caused disturbances.
(6) USSF must collect photo and/or video recordings for daylight launches when feasible, and if the launch occurs in darkness night vision equipment will be used.
(7) USSF must record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
(f) USSF must continue to test equipment and emerging technologies, including but not limited to night vision cameras, newer models of remote video cameras and other means of remote monitoring at both VSFB and on the NCI.
(g) USSF must evaluate UAS based or space-based technologies that become available for suitability, practicability, and for any advantage that remote sensing may provide to existing monitoring approaches.
(h) USSF must monitor marine mammals during the first three launches of the missiles for the new Ground Based Strategic Defense program during
(1) When launch monitoring is required, monitoring must include multiple surveys each day.
(2) When possible, PSOs must record: species, number, general behavior, presence and number of pups, age class, gender, and reaction to launch noise, or to natural or other human-caused disturbances. PSOs must also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
(i) USSF must conduct semi-monthly surveys (two surveys per month) to monitor the abundance, distribution, and status of pinnipeds at VSFB. Whenever possible, these surveys will be timed to coincide with the lowest afternoon tides of each month when the greatest numbers of animals are usually hauled out. If a VSFB or area closure precludes monitoring on a given day, USSF must monitor on the next best day.
(1) PSOs must gather the following data at each site: species, number, general behavior, presence and number of pups, age class, gender, and any reactions to natural or human-caused disturbances. PSOs must also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
(j) For each rocket or missile launch where monitoring is required as described in paragraphs (a), (c), and (e) of this section, USSF must submit a launch report to NMFS' West Coast Region and Office of Protected Resources within 90 days. This report must contain the following information:
(1) Date(s) and time(s) of the launch (and sonic boom, if applicable);
(2) Monitoring program design; and
(3) Results of the monitoring program, including, but not necessarily limited to:
(i) Date(s) and location(s) of marine mammal monitoring;
(ii) Number of animals observed, by species, on the haulout prior to commencement of the launch or recovery;
(iii) General behavior and, if possible, age (including presence and number of pups) and sex class of pinnipeds hauled out prior to the launch or recovery;
(iv) Number of animals, by species, age, and sex class, that responded at a level indicative of harassment;
(v) Number of animals, by species, age, and sex class that entered the water, and any behavioral responses by pinnipeds that were likely in response to the specified activities, including in response to launch noise or a sonic boom;
(vi) Environmental conditions including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction; and
(vii) Results of acoustic monitoring, including the recorded sound levels associated with the launch and/or sonic boom (if applicable).
(k) If the activity identified in § 217.60(a) likely resulted in the mortality or injury of any marine mammals or in any take of marine mammals not identified in § 217.62, then the USSF must notify the NMFS Office of Protected Resources and the NMFS West Coast Region stranding coordinator within 48 hours of the discovery of the injured or dead marine mammal.
(i) USSF must submit an annual report each year to NMFS Office of Protected Resources. This report must summarize the data reported in all launch reports for the previous calendar year (as described in paragraph (g) of this section) including a summary of documented numbers of instances of harassment incidental to the specified activities. The annual reports must also include the results of the semi-monthly sentinel marine mammal monitoring and describe any documented takings incidental to the specified activities not included in the launch reports (
(l) USSF must submit a final, comprehensive 5-year report to NMFS Office of Protected Resources. This report must:
(1) Summarize the activities undertaken and the results reported in all previous reports;
(2) Assess the impacts at each of the major rookeries; and
(3) Assess the cumulative impacts on pinnipeds and other marine mammals from the activities specified in § 217.60(a) and (b);
(a) To incidentally take marine mammals pursuant to this subpart, the USSF must apply for and obtain an LOA in accordance with § 216.106 of this chapter.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed expiration of this subpart.
(c) If an LOA expires prior to the expiration date of this subpart, the USSF may apply for and obtain a renewal LOA.
(d) In the event of projected changes to the activity or to mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision of § 217.67(c)(1) required by an LOA, USSF must apply for and obtain a modification of the LOA as described in § 217.67.
(e) Each LOA will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of a LOA shall be published in the
(a) A LOA issued under §§ 216.106 of this chapter and 217.66 for the activity identified in § 217.60(a) and (b) shall be modified upon request by the applicant, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or that result in no more than a minor change in the total estimated number of takes (or distribution by species or stock or years), NMFS may publish a notice of proposed changes to the LOA in the
(c) An LOA issued under §§ 216.106 of this chapter and 217.66 for the activity identified in § 217.60(a) and (b) may be modified by NMFS under the following circumstances:
(1) After consulting with the USSF regarding the practicability of the modifications, NMFS, through adaptive management, may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include:
(A) Results from the USSF's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or studies; or
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or a subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are more than minor, NMFS will publish a notice of the proposed changes to the LOA in the
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 217.62, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and approval 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 these information collections are best assured of having their full effect if received by February 28, 2024. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The National School Lunch Act (NSLA) was enacted as a measure of national security, to safeguard the health and well being of the nation's children and encourage the domestic consumption of agricultural commodities through federally supported school lunch programs. Section 9 (a) of the Act provides that “Lunches served by schools participating in the school lunch program . . . shall meet minimum nutritional requirements prescribed by
The Child Nutrition Labeling Program evolved in response to a need by child nutrition food service personnel to determine the contribution foods make toward the meal pattern requirements of the Child Nutrition Programs. During the 1970's, changes and expansion in food technology and marketing increased the availability and use of commercially prepared products such as beef patties and combination food items (burritos, pizzas, etc.) in the Child Nutrition Programs. These products posed a problem for food service personnel. It was difficult at the point of sale to determine their contribution towards the food based meal pattern requirements and assure compliance with Federal regulations for serving specific amounts of food. With the anticipation of increased sales of these products to the Child Nutrition Programs, FNS was prompted to form an evaluation committee to determine a means for properly evaluating the contribution of these products in meeting the meal pattern requirements. The Committee, composed of Food and Nutrition Service (FNS), Food Safety Inspection Service (FSIS), Agricultural Marketing Service (AMS), and National Marine Fisheries Service (NMFS) staff worked together to recommend, design, and implement the CN Labeling Program to review and monitor such products.
The Child Nutrition Labeling Program is implemented in conjunction with existing label approval programs administered by the Food Safety and Inspection Service (FSIS), and the U.S. Department of Commerce (DoC). To participate in the CN Labeling Program, industry submits labels to AMS of products that are in conformance with the FSIS label approval program (for meat and poultry), and the DoC label approval program (for seafood products).
There is no Federal requirement that commercially prepared products have CN label statements. The decision to require that products used in the Child Nutrition Programs contain a CN label statement is left to the local schools, child-care or summer institutions, or States administering these programs. However, the CN Labeling Program plays a significant role in the food service management of Child Nutrition Programs. The scope and use of products labeled under the CN Labeling Program have continually expanded. The continued requests for CN labels by food manufacturers and food service directors are due to the following: (1) The increased use of commercially prepared products, (2) the requirement by some States that applicable processed donated food products bear a CN label statement, and (3) increased use of the CN label as a requirement in purchase specifications prepared by local school food authorities. In addition, support for the use of CN label statements has come from the Inspector General, food trade associations and the National Advisory Council on Child Nutrition. These groups believe that a broad CN Labeling Program could help assure compliance with food based meal patterns.
Office of the Chief Financial Officer (OCFO), National Finance Center (NFC).
Notice of a modified system of records.
In accordance with the Privacy Act of 1974, as amended, and Office of Management and Budget Circular No. A-108, the U.S. Department of Agriculture (USDA) proposed revised system of records, the Personnel and Payroll System for USDA Employees (OP-1), will be renamed—Office of the Chief Financial Officer (OCFO), National Finance Center (NFC), Systems for Personnel, Payroll, and Time & Attendance. OCFO/NFC-1 Systems for Personnel, Payroll, and Time & Attendance provides comprehensive, cost-effective, and reliable services as well as automated, accurate, and timely actions necessary for recording, processing, and reporting personnel, payroll, and time and attendance data for USDA and other Federal agencies serviced by NFC. These systems are full-service, integrated payroll, personnel, and time and attendance applications that link personnel actions, and processing payroll activities. The OCFO/NFC-1 Systems for Personnel, Payroll, and Time & Attendance processes personnel actions, awards, allotments, performance appraisals, health and life insurance, thrift savings plan, tax documents, severance pay, leave record, time, & attendance, payroll-related financial reporting operations, retirements, and management of debt collection on behalf of federal agencies related to employee debt.
In accordance with 5 U.S.C. 552a(e)(4) and (11), this notice is effective upon publication, subject to a 30-day notice and comment period in which to comment on the routine uses described in the routine uses section of
Comments may be submitted by one of the following methods:
For general questions, please contact the National Finance Center, Director, 13800 Old Gentilly Road, Building 318, New Orleans, LA 70129, email
The purposes of the system's revisions are: (1) Renaming the system of records notice; (2) Expanding the categories of individuals on whom the records are maintained in the system; (3) Updating the categories of records maintained in the system; (4) Updating the Location of the system of records; and (5) Updating Routine Uses.
OCFO/NFC-1 Systems for Personnel, Payroll, and Time & Attendance.
Unclassified.
The OCFO/NFC-1 Systems for Personnel, Payroll, and Time & Attendance is maintained at the Enterprise Data Center—Kansas City, Kansas City, MO 64114. Records can be located at NFC customer locations.
Director, National Finance Center, 13800 Old Gentilly Road, Building 318, New Orleans, LA 70129,
Chief Financial Officers Act of 1990 Public Law 101-576.
The purpose of the OCFO/NFC-1 Systems for Personnel, Payroll, and Time & Attendance is to provide comprehensive, cost- effective, and reliable services as well as automated, accurate, and timely actions necessary for recording, processing, and reporting personnel, payroll, and time and attendance data for USDA and non-USDA agencies serviced by NFC. These systems are a full-service, integrated payroll, personnel, and time and attendance applications that link personnel actions and payroll activities.
USDA and non-USDA Federal Employees, former employees, contractors, permittees, cooperators, and applicants for Federal employment whose personnel, payroll, and time & attendance records are serviced by NFC are covered by the system.
The systems consist of current and historical personnel, payroll, and time and attendance records.
Information in these systems come from Federal agencies, employees, contractors, managers, agency human resources offices, agency payroll and personnel offices, individuals on whom the record is maintained, educational institutions, and agency officials.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, records contained in this system may be disclosed outside USDA as a routine use pursuant to 5 U.S.C. 552a(b)(3), to the extent that such uses are compatible with the purposes for which the information was collected. Such permitted routine uses include the following:
(1) Office of Personnel Management for required action, records, and reports;
(2) Department of Treasury for issuance of checks and bonds;
(3) Department of Labor for Office of Workers Compensation
(4) Congress for special reports, or in response to an inquiry from a Congressional office made at the written request of the individual about whom the record pertains;
(5) White House for special reports;
(6) Office of Management and Budget for special reports;
(7) General Accounting Office for special Reports;
(8) Disclosure to the Department of Justice (DOJ) for use in litigation when: (a) the agency or any component thereof; or (b) any employee of the agency in his or her official capacity where DOJ has agreed to represent the employee; or the United States Government is a party to litigation or has an interest in such litigation;
(9) General Services Administration for records retirement and/or destruction;
(10) State Department for passport and foreign assignments;
(11) Department of Transportation, Environmental Protection Agency and cooperating state and local agencies for accident and safety records;
(12) Internal Revenue Service and State and local government for matters in connection with payment of income taxes;
(13) Social Security Administration for social security payment Information;
(14) Combined Federal Campaign for reports and records;
(15) Department of Health and Human Services for scheduling physical examinations;
(16) All Government agencies and potential employers concerning employment inquiries;
(17) Equal Employment Opportunity Commission for handling Complaints;
(18) appropriate agency, whether Federal, State, local or foreign, charged with the responsibility of investigating or prosecuting a violation of law, or of enforcing or implementing a statute or a rule, regulation or order issued pursuant thereto, of any record within this system when information available indicates a violation or potential violation of law, whether, civil, criminal, or regulatory in nature, and whether arising by general statue or other particular program statute, or by rule, regulation or order issued pursuant thereto;
(19) a court, magistrate, or administrative tribunal, or to opposing
(20) any agency of the Federal Government which has identified USDA or Non-USDA employees as having defaulted in the repayment of an obligation incurred under any statutory authority except the Internal Revenue Code, the Social Security Act, or the U.S. tariff laws;
(21) the Internal Revenue Service to enable it to offset and satisfy past due, legally enforceable debts owed to USDA against Federal income tax refunds;
(22) labor organizations recognized under 5 U.S.C. Chapter 71 to provide home addresses or designated mailing addresses of bargaining unit employees;
(23) the cooperator(s) selected to evaluate personnel-related demonstration projects;
(24) The names, social security numbers, home addresses, dates of birth, dates of hire, quarterly earnings, employer identifying information and State of hire of employees may be disclosed to the Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services for the purpose of locating individuals to establish paternity, establishing and modifying sources of income, and for other child support enforcement actions as required by the Personal Responsibility and Work Opportunity Reconciliation Act of 1966 (Pub. L. 104-193). Se.
(25) To the Department of Justice (DOJ) when: (a) USDA or Non-USDA or any component thereof; or (b) any employee of USDA or Non-USDA in his or her official capacity where the Department of Justice has agreed to represent the employee; or (c) the United States Government, is a party to litigation or has an interest in such litigation, and USDA or Non-USDA determines that the records are both relevant and necessary to the litigation and the use of such records by the Department of Justice is deemed by USDA or Non-USDA to be for a purpose that is compatible with the purpose for which USDA or Non-USDA collected the records.
(26) To a congressional office in response to an inquiry from that Congressional office made at the written request of the individual about whom the record pertains;
(27) To the National Archives and Records Administration (NARA) or other Federal government agencies pursuant to records management activities being conducted under 44 U.S.C. 2904 and 2906;
(28) To appropriate agencies, entities, and persons when (1) USDA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) USDA has determined that as a result of the suspected or confirmed breach, there is a risk of harm to individuals, USDA (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure to such agencies, entities, and persons is reasonably necessary to assist in connection with USDA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm; or to another Federal agency or Federal entity, when information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach; or (2) preventing, minimizing, or remedying the risk of harm to individuals, the agency (including its information systems, programs, and operations), the Federal Government, or national security.
(29) When a record on its face, or in conjunction with other records, indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program, statute, or by regulation, rule, or order issued pursuant thereto, disclosure may be made to the appropriate Federal, State, local, foreign, Tribal, or other public authority responsible for enforcing, investigating, or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation, or order issued pursuant thereto, if the information disclosed is relevant to any enforcement, regulatory, investigative or prosecutive responsibility of the receiving entity. Referral to the appropriate agency, whether Federal, State, local, or foreign, charged with the responsibility of investigating or prosecuting violation of law, or of enforcing or implementing a statute, rule, regulation, or order issued pursuant thereto, of any record within this system when information available indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature;
(30) To a court or adjudicative body in a proceeding when: (a) USDA or non-USDA or any component thereof; or (b) any employee of USDA in his or her official capacity; or (c) any employee of USDA in his or her individual capacity where USDA has agreed to represent the employee; or the United States Government is a party to litigation or has an interest in such litigation, and USDA determines that the records are both relevant and necessary to the litigation, and that use of such records is therefore deemed by USDA to be for a purpose that is compatible with the purpose for which USDA collected the records;
(31) To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the USDA or Non-USDA, when necessary to accomplish an agency function related to this system of records. Individuals providing information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to USDA officers and employees;
(32) To appropriate agencies, entities, and persons (1) when NFC suspects or has confirmed that there has been a breach of the system of records, (2) NFC has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, NFC (including its information systems, programs, and operations), the Federal Government, or national security and (3) the disclosure made to such agencies, entities, and persons are reasonably necessary to assist in connection with NFC efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm;
(33) To another Federal agency or Federal entity, when NFC determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) 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, resulting from a suspected or confirmed breach;
(34) To disclose relevant information with personal identifiers of Federal civilian employees whose records are contained in the Personnel, Payroll, and Time & Attendance System for USDA and Non-USDA Employees to an authorized Federal, State, tribal, local, or foreign agency, or other public authority. This will help eliminate waste, fraud, and abuse in Governmental programs or operations; to help identify individuals who are potentially in violation of civil or criminal law or regulation; and to
(35) To an agency or organization 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.
Electronic records are stored at the USDA Office of the Chief Information Officer (OCIO), Digital Infrastructure Services Center (DISC) Data Center, and Iron Mountain Digital Records Center. All other record formats are stored at the Federal Records Centers.
These records are retrieved by various combinations of name, agency, birth date, social security number, or identification number of the individual on whom they are maintained.
Records are retained and disposed of in accordance with approved NARA guidance, NFC Records Control Schedule N1-016-10-7.
Pursuant to this records schedule, records are retained for 56 years.
Paper or microfiche/microfilmed records are located at the Federal Records Centers. Access to computerized records is limited, through use of user logins and passwords, access codes, and entry logs, to those whose official duties require access.
Computerized records systems are consistent with the requirements of the Federal Information Security Management Act (Pub. L. 107-296), and associated OMB policies, standards and guidance from the National Institute of Standards and Technology.
Individuals seeking to gain access to a record in this system of records maycontact the NFC Director at the address listed above. Provide the NFC Director with the necessary particulars such as full legal name, date of birth, work address, country of citizenship. Requesters must also reasonably specify the record contents sought. The request must meet the requirements of the regulations at 34 CFR 5b.5, including proof of identity. All requests for access to records must be in writing and should be submitted to the NFC Director at the address listed above. A determination whether a record may be accessed will be made at the time a request is received.
Individuals seeking to contest or amend information maintained in the system should direct their request to the above listed NFC Director and should include the reason for contesting it and the proposed amendment to the information with supporting information to show how the record is inaccurate. A request for contesting records should contain: Name, address including zip code, name of the system of records, year of records in question, and any other pertinent information to help identify the data requested.
Any individual may request information regarding this system of records, or information as to whether the system contains records pertaining to the individual, from the NFC Director listed above.
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 28, 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.
Forest Service, Agriculture (USDA).
Notice of meeting.
The National Urban and Community Forestry Advisory Council will hold a public meeting according to the details shown below. The Council is authorized under the Cooperative Forestry Assistance Act (the Act) and operates in compliance with the Federal Advisory Committee Act (FACA). The purpose of the Council is to develop a national urban and community forestry ten-year action plan, evaluate and report annually on the implementation of that plan to the Secretary, and develop criteria for and submit recommendations to the Forest Service's National Urban and Community Forestry Challenge Cost-share Grant Program.
An in-person and virtual meeting will be held on February 28, 2024, 9 a.m.-5 p.m., Mountain Standard Time (MST) and February 29, 2024, 8:30 a.m.-1 p.m. MST.
All Council meetings are subject to cancellation. For status of the meetings prior to attendance, please contact the person listed under
The meetings will be held in person and virtually at the Valle de Oro National Wildlife Refuge located at 7851 Second Street Southwest, Albuquerque, New Mexico 87105. Council information and meeting details can be found at the following website:
Nancy Stremple, Designated Federal Officer (DFO), by email at
The purpose of the meeting is to:
1. Introduce National Urban and Community Forestry Council members;
2. Present about Valle de Oro National Urban Wildlife Refuge and community engagement;
3. Discuss National Ten Year Action Plan, its Five Year Benchmark, Accomplishment Report, and process in Preparation for the Next Ten Year Action Plan (2027-2037);
4. Receive Presentation on Extreme Heat and site tour Thursday;
5. Schedule future meetings; and
6. Other Council related items.
The agenda will include time for individuals to make oral statements of three minutes or less. Individuals wishing to make an oral statement should make a request in writing at least three days prior to the meeting date to be scheduled on the agenda. Written comments may be submitted to the Forest Service up to 5 days after the meeting date listed under
Please contact the person listed under
USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Equal opportunity practices in accordance with USDA's policies will be followed in all appointments to the Council. To ensure that the recommendations of the Council have considered the needs of the diverse groups served by USDA, membership shall include to the extent possible individuals with demonstrated ability to represent minorities, women, and persons with disabilities. USDA is an equal opportunity provider, employer, and lender.
National Agricultural Library, Agricultural Research Service, Department of Agriculture.
Notice of second public feedback period.
The U.S. Department of Agriculture's (Department's) National Agricultural Library (NAL) announces a second public feedback period to receive public comments, recommendations, and suggestions on the Department's planned response to White House Office of Science and Technology Policy (OSTP) guidance on access to the results of federally-funded research. The Department's plan and policies apply to the results of research funded wholly or in part by any USDA component agency. This effort to obtain input regarding implementation of federal public access requirements will be carried out through an online submission mechanism. This second public feedback period is to allow opportunity for feedback from interested parties not widely heard from during the first period, including but not limited to members of the public; principal investigators; research institutions, including minority-serving institutions; research libraries; data repositories; and data scientists. Responses received during the first comment period have already been reviewed and will be considered along with comments received during the second comment period. If you need a reasonable accommodation or language access services to leave a written comment, please contact Cynthia Parr, National Agricultural Library, at
The Department will not accept comments submitted by fax or by email or comments submitted after the comment period closes. To ensure that the Department does not receive duplicate copies, please submit your comments only once.
Cynthia Parr, National Agricultural Library, at
• How can USDA best implement its plans to improve public access to USDA-funded research results?
• How can USDA update or refine its policies to improve public access to USDA-funded research results?
• How can USDA ensure equity in publication opportunities?
• How can USDA use partnerships to improve public access and accessibility to results of USDA-funded research?
• How can USDA monitor impacts on communities impacted by its public access policies?
Done at Washington, DC
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
• The New Jersey State Data Center used OnTheMap for Emergency Management to quickly learn the impact of hurricane Sandy with regards to identification of Federal Disaster Declaration Areas and its effects on communities (
• The State of Nevada has used the Job-to-Job Flows data product to understand the migration of its workforce that supports the hotel industry.
• The Philadelphia Center City District used LEHD data to understand the details of the area's workforce and economy in order to monitor the effectiveness of economic programs and policy initiatives.
Additional examples of how the LEHD data products and supporting dissemination tools have been used can be found at the LEHD website:
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) received scope ruling applications, requesting that scope inquiries be conducted to determine whether identified products are covered by the scope of antidumping duty (AD) and/or countervailing duty (CVD) orders and that Commerce issue scope rulings pursuant to those inquiries. In accordance with Commerce's regulations, we are notifying the public of the filing of the scope ruling applications listed below in the month of December 2023.
Applicable January 29, 2024.
Terri Monroe, AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-1384.
In accordance with 19 CFR 351.225(d)(3), we are notifying the public of the following scope ruling applications related to AD and CVD orders and findings filed in or around the month of December 2023. This notification includes, for each scope application: (1) identification of the AD and/or CVD orders at issue (19 CFR 351.225(c)(1)); (2) concise public descriptions of the products at issue, including the physical characteristics (including chemical, dimensional and technical characteristics) of the products (19 CFR 351.225(c)(2)(ii)); (3) the countries where the products are produced and the countries from where the products are exported (19 CFR 351.225(c)(2)(i)(B)); (4) the full names of the applicants; and (5) the dates that the scope applications were filed with Commerce and the name of the ACCESS scope segment where the scope applications can be found.
Alloy and Certain Carbon Steel Threaded Rod from the People's Republic of China (China) (A-570-104); wheel studs;
Carbon and Alloy Steel Threaded Rod from China (C-570-105); wheel studs;
This list of scope ruling applications is not an identification of scope inquiries that have been initiated. In accordance with 19 CFR 351.225(d)(1), if Commerce has not rejected a scope ruling application nor initiated the scope inquiry within 30 days after the filing of the application, the application will be deemed accepted and a scope inquiry will be deemed initiated the following day—day 31.
In accordance with 19 CFR 351.225(m)(2), if there are companion AD and CVD orders covering the same merchandise from the same country of origin, the scope inquiry will be conducted on the record of the AD proceeding. Further, please note that pursuant to 19 CFR 351.225(m)(1), Commerce may either apply a scope ruling to all products from the same country with the same relevant physical characteristics (including chemical, dimensional, and technical characteristics) as the product at issue, on a country-wide basis, regardless of the producer, exporter, or importer of those products, or on a company-specific basis.
For further information on procedures for filing information with Commerce through ACCESS and participating in scope inquiries, please refer to the Filing Instructions section of the Scope Ruling Application Guide, at
Please note that this notice of scope ruling applications filed in AD and CVD proceedings may be published before any potential initiation, or after the initiation, of a given scope inquiry based on a scope ruling application identified in this notice. Therefore, please refer to the case segment on ACCESS to determine whether a scope ruling application has been accepted or rejected and whether a scope inquiry has been initiated.
Interested parties who wish to be served scope ruling applications for a particular AD or CVD order may file a request to be included on the annual inquiry service list during the anniversary month of the publication of the AD or CVD order in accordance with 19 CFR 351.225(n) and Commerce's procedures.
Interested parties are invited to comment on the completeness of this monthly list of scope ruling applications received by Commerce. Any comments should be submitted to James Maeder, Deputy Assistant Secretary for AD/CVD Operations, Enforcement and Compliance, International Trade Administration, via email to
This notice of scope ruling applications filed in AD and CVD proceedings is published in accordance with 19 CFR 351.225(d)(3).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that Sentury Tire (Thailand) Co., Ltd. (Sentury) and Sumitomo Rubber (Thailand) Co., Ltd. (SRT) made sales of subject merchandise in the United States at prices below normal value (NV) during the period of review (POR) January 6, 2021, through June 30, 2022. Commerce further determines that sales of subject merchandise made by the non-individually examined companies were at prices below NV.
Applicable January 29, 2024.
Myrna Lobo or Jacob Saude, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2371 or (202) 482-0981, respectively.
On July 27, 2023, Commerce published the preliminary results of the 2021-2022 administrative review of the antidumping duty order on passenger vehicle and light truck tires (passenger tires) from Thailand.
For a summary of the events that occurred since the
The merchandise subject to this
We addressed all issues raised in the case and rebuttal briefs filed in this administrative review in the Issues and Decision Memorandum. A list of the issues addressed in the Issues and Decision Memorandum is included in the appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on an analysis of the comments received, we have made no changes to the
The statute and Commerce's regulations do not address the establishment of a weighted-average dumping margin to be determined for companies not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when determining the weighted-average dumping margin for companies which were not selected for individual examination in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
In this review, we calculated weighted-average dumping margins of 1.24 percent and 6.16 percent for Sentury and SRT, respectively. With two respondents under individual examination, Commerce normally calculates: (A) a weighted average of the estimated dumping rates calculated for the examined respondents; (B) a simple average of the estimated dumping rates calculated for the examined respondents; and (C) a weighted average of the estimated dumping rates calculated for the examined respondents using each company's publicly-ranged U.S. sales values for the merchandise under consideration. Commerce then compares (B) and (C) to (A) and selects the rates closest to (A) as the most appropriate rate for all other producers and exporters.
We determine the following weighted-average dumping margins for the period January 6, 2021, through June 30, 2022.
The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.
Because we made no changes to the calculations performed in connection with the
Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b)(1), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. As Sentury's and SRT's weighted-average dumping margins are not zero or
For entries of subject merchandise during the POR produced by either Sentury or SRT for which it did not know that the merchandise it sold to the intermediary (
For the companies that were not selected for individual review, we will assign an assessment rate based on the review-specific average rate, calculated as noted in the “Rate for Non-Examined Respondents” section above.
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of these final results in the
The following cash deposit requirements will be effective for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rates for the reviewed companies will be equal to the weighted-average dumping margin established in the final results of this review; (2) for producers or exporters not covered in this review but covered in a prior completed segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published in the most recently completed segment; (3) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value (LTFV) investigation, but the producer is, then the cash deposit rate will be the rate established in the most recently completed segment for the producer of the merchandise; (4) the cash deposit rate for all other producers or exporters will continue to be 17.06 percent, the all-others rate established in the LTFV investigation in this proceeding.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation subject to sanction.
We are issuing and publishing these final results of administrative review in accordance with sections 751(a) and 777(i) of the Act, and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that countervailable subsidies were provided to Jindal Poly Films Limited (Jindal), a producer and exporter of polyethylene terephthalate film, sheet, and strip (PET Film) from India, during the period of review (POR) January 1, 2021, through December 31, 2021.
Applicable January 29, 2024.
Stefan Smith, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4342.
On August 2, 2023, Commerce published the
The merchandise covered by the scope of the order is PET film. A full description of the scope of the order is contained in the Issues and Decision Memorandum.
All issues raised by the interested parties in their case and rebuttal briefs are addressed in the Issues and Decision Memorandum. A list of topics discussed in the Issues and Decision Memorandum is provided in the appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on our analysis of comments from interested parties and the evidence
Commerce conducted this administrative review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found to be countervailable, we find that there is a subsidy,
As a result of this review, we determine that the following net countervailable subsidy rate exists for the period January 1, 2021, through December 31, 2021:
Normally, Commerce discloses its calculations and analysis performed in connection with the final results to interested parties within five days of its public announcement, or if there is no public announcement, within five days of the date of publication of this notice, in accordance with 19 CFR 351.224(b). However, because we are applying total AFA in the calculation of the benefit for Jindal in these final results, and the rate is unchanged from the rate assigned in the
In accordance with section 751(a)(1) of the Act, Commerce intends to instruct U.S. Customs and Border Protection (CBP) to collect cash deposits of estimated countervailing duties in the amounts shown above for the above-listed company with regard to shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of these final results of review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits of estimated countervailing duties at the all-others rate or the most recent company-specific rate applicable to the company, as appropriate. These cash deposit requirements, effective upon the publication of these final results, shall remain in effect until further notice.
In accordance with section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(2), Commerce has determined, and CBP shall assess, countervailing duties on all appropriate entries covered by this review. Commerce intends to issue assessment instructions to CBP no earlier than 35 days after publication of the final results of this review in the
This notice also serves as a final reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). 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.
The final results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On January 19, 2024, the U.S. Court of International Trade (CIT) issued its final judgment in
Applicable January 29, 2024.
Shane Subler or William Horn, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6241 or (202) 482-4868, respectively.
On February 16, 2021, Commerce published its final determination in the CVD investigation of phosphate fertilizers from Russia.
JSC Apatit, EuroChem, and the petitioner
In the
In its
On October 11, 2023, Commerce issued the
In its decision in
Because there is now a final court judgment, Commerce is amending its
Because there is now a final court decision, Commerce is amending its
For EuroChem and all others, Commerce will issue revised cash deposit instructions to U.S. Customs and Border Protection (CBP). For JSC Apatit, however, the cash deposit rate has been superseded by the cash deposit rate calculated in the subsequent administrative review of the CVD order on phosphate fertilizers from Russia.
At this time, Commerce remains enjoined by CIT order from liquidating entries that were produced and/or exported by JSC Apatit and certain cross-owned companies
This notice is issued and published in accordance with sections 516A(c) and (e) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) is postponing the deadline for issuing the final determination in the less-than-fair-value (LTFV) investigation of certain paper shopping bags (shopping bags) from Malaysia until May 17, 2024, and is extending the provisional measures from a four-month period to a period of not more than six months.
Applicable January 29, 2024.
Daniel Alexander, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4313.
On June 20, 2023, Commerce initiated an LTFV investigation of imports of paper bags from Malaysia.
Section 735(a)(2) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.210(b)(2) provide that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by the exporters or producers who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioners. Further, 19 CFR 351.210(e)(2) requires that such postponement requests by exporters be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months, in accordance with section 733(d) of the Act.
On January 5, 2024, Nanwang Pack (M) Sdn. Bhd. (Nanwang) and Hexachase Packaging Sdn Bhd, Malaysia (Hexachase), mandatory respondents in this investigation, requested that Commerce postpone the deadline for final determination until no later than 135 days from the publication of the
This notice is issued and published pursuant to section 735(a)(2) of the Act and 19 CFR 351.210(g).
National Institute of Standards and Technology, Department of Commerce.
Notice of open meeting.
The Advisory Committee on Earthquake Hazards Reduction (ACEHR or Committee) will hold an open meeting on Tuesday, March 26, 2024 from 8:30 a.m. to 5:00 p.m. Eastern Time and Wednesday, March 27, 2024, from 8:30 a.m. to 2:00 p.m. Eastern Time. The primary purpose of this meeting is for the Committee to receive agency responses for each recommendation in the 2023 ACEHR Biennial Report on the Effectiveness of the National Earthquake Hazards Reduction Program (NEHRP). The agenda may change to accommodate Committee business. The final agenda will be posted on the NEHRP website at
The ACEHR will meet on Tuesday, March 26, 2024, from 8:30 a.m. to 5:00 p.m. Eastern Time and Wednesday, March 27, 2024, from 8:30 a.m. to 2:00 p.m. Eastern Time.
The meeting will be held in Room 3410 at the National Science Foundation (NSF), Hoffman Town Center, 2415 Eisenhower Avenue, Alexandria, Virginia 22314, with an option to participate via web conference. Please note admittance instructions under the
Tina Faecke, Management and Program Analyst, NEHRP, Engineering Laboratory, NIST. Ms. Faecke's email address is
Pursuant to the FACA, as amended, 5 U.S.C. 1001
Individuals and representatives of organizations who would like to offer comments and suggestions related to the Committee's business are invited to request a place on the agenda. Approximately fifteen minutes will be reserved for public comments and speaking times will be assigned on a first-come, first-serve basis. The amount of time per speaker will be determined by the number of requests received. Questions from the public will not be considered during this period. This meeting will be recorded. Public comments can be provided via email or by web conference attendance. All those wishing to speak must submit their request by email to Tina Faecke at
Anyone wishing to attend this meeting via web conference must register by 5:00 p.m. Eastern Time, March 12, 2024, to attend. Please submit your full name, the organization you represent (if applicable), email address, and phone number to Tina Faecke at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council (Council) will hold a one-day in person meeting of its Coastal Migratory Pelagics (CMP) Advisory Panel (AP).
The meeting will take place Tuesday, February 13, 2024, from 9 a.m. to 4 p.m., EST.
The meeting will be held at the Gulf Council Office. Please visit the Council's website by visiting
Dr. Natasha Mendez-Ferrer, Fishery Biologist, Gulf of Mexico Fishery Management Council;
The meeting will begin with Election of Chair and Vice Chair, Adoption of Agenda, Approval of Minutes from the December 1, 2022 CMP Advisory Panel meeting; and, review of Scope of Work.
The AP will review the Coastal Migratory Pelagics Landings, Summary on Marine Recreational Information Program-Fishing Effort Survey (MRIP-FES) Pilot Study Results and SEDAR 81: Gulf Migratory Group Spanish Mackerel; including, presentations, background materials and the catch limit recommendations from the Council's Scientific and Statistical Committee (SSC).
The AP will review Draft Framework Amendment 14: Modifications to Gulf Spanish Mackerel Catch Limits; with presentations, document and provide recommendations. Staff will introduce and review the CMP Outreach Effort with the AP, receive Public Comment, and discuss any Other Business items.
The meeting will be in-person. You may register to listen in to the webinar by visiting
Although other non-emergency issues not on the agenda may come before the Advisory Panel for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Advisory Panel will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take-action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid or accommodations should be directed to Kathy Pereira,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments and new information.
NMFS reviewed the Alaska, Atlantic, and Pacific regional marine mammal stock assessment reports (SAR) in accordance with the Marine Mammal Protection Act (MMPA). SARs for marine mammals in the Alaska, Atlantic, and Pacific regions were revised according to new information. NMFS solicits public comments on the draft 2023 SARs. NMFS is also requesting new information for strategic stocks that were not updated in 2023.
Comments must be received by April 29, 2024.
The 2023 draft SARs are available in electronic form via the internet at
Hard copies of the Alaska Regional SARs may be requested from Nancy Young, Alaska Fisheries Science Center; copies of the Atlantic, Gulf of Mexico, and Caribbean Regional SARs may be requested from Elizabeth Josephson, Northeast Fisheries Science Center; and copies of the Pacific Regional SARs may be requested from Jim Carretta, Southwest Fisheries Science Center (see
You may submit comments or new information, identified by NOAA-NMFS-2024-0019, via electronic submission through the Federal e-Rulemaking Portal:
Zachary Schakner, Office of Science and Technology, 301-427-8106,
Section 117 of the MMPA (16 U.S.C. 1361
The MMPA requires NMFS and USFWS to review the SARs at least annually for strategic stocks and stocks for which significant new information is available, and at least once every three years for non-strategic stocks. The term “strategic stock” means a marine mammal stock: (A) for which the level of direct human-caused mortality exceeds the potential biological removal level or PBR (defined by the MMPA as the maximum number of animals, not including natural mortalities, that may
In order to ensure that marine mammal SARs constitute the best scientific information available, the updated SARs under NMFS' jurisdiction are peer-reviewed within NMFS Science Centers and by members of three regional independent scientific review groups established under the MMPA to independently advise NMFS and the USFWS. As a result of the time involved in the assessment of new scientific information, revision, and peer-review of the SARs, the period covered by the 2023 draft SARs is 2017 through 2021.
NMFS reviewed the status of all marine mammal strategic stocks and considered whether significant new information was available for all other stocks under NMFS' jurisdiction. As a result of this review, NMFS revised or developed new reports for 66 stocks in the Alaska, Atlantic, and Pacific regions to incorporate new information. The 2023 revisions to the SARs consist primarily of updated or revised human-caused mortality and serious injury (M/SI) estimates and updated abundance estimates, the proposed designation of two new stocks: Sato's beaked whale and the Central Oregon harbor porpoise, and proposed Pacific Islands stock name changes.
NMFS solicits public comments on the draft 2023 SARs. To ensure NMFS is aware of new information relevant to all strategic stocks, NMFS also requests new information for strategic stocks that were not updated in 2023. Specifically, new relevant information could include peer-reviewed information on human-caused M/SI, fishery interactions, abundance, distribution, population structure, and other information on emerging concerns for strategic stocks that could be incorporated into the SARs.
NMFS reviewed new information for 24 existing stocks (including all of the strategic stocks) in the Alaska Region for the 2023 SAR cycle and updated information or developed new reports for five stocks contained in five SARs under NMFS' jurisdiction: three strategic stocks (Western stock of Steller sea lions, Eastern North Pacific stock of North Pacific right whales, and Western Arctic stock of bowhead whales) and two non-strategic stocks (Eastern stock of Steller sea lions and Sato's beaked whales stock). Information on the remaining Alaska region stocks can be found in the final 2022 SARs (Young
A list of the new or revised SARs in 2023 for the Alaska region is presented in table 1, followed by a non-exhaustive summary of the more notable issues or revisions for particular stocks within the Alaska region.
A new SAR is proposed for a newly described species, Sato's beaked whale (Yamada
In 2023, NMFS reviewed all stocks in the Atlantic region under NMFS' jurisdiction (including the Atlantic Ocean, Gulf of Mexico, and U.S. territories in the Caribbean) for new information. Thirty-one stocks from the Western North Atlantic were revised (table 2), primarily with updated abundance estimates based on the 2021 Atlantic Marine Assessment Program for Protected Species large vessel surveys, and some were also updated with recent bycatch estimates. One stock changed in status to “strategic,” the Western North Atlantic (WNA) short-finned pilot whale. This particular stock has oscillated between strategic and non-strategic over the years, depending on the latest abundance and bycatch estimates.
A list of the new or revised SARs in 2023 for the Atlantic region is presented in table 2, followed by a non-exhaustive summary of the more notable issues or revisions in the Atlantic region. Information on the remaining Atlantic region stocks can be found in the final 2022 SARs (Hayes
The new abundance estimate calculated for the western North Atlantic right whale stock is 340 (95% CI: 333-348) individuals as of December 2021. This updated estimate is based on a published state-space model of the sighting histories of individual whales identified using photo-identification techniques (Pace
In 2023, NMFS is not revising SAR for the Gulf of Maine stock of humpback whales. Since the last revision of this SAR in 2019, NMFS has been reviewing and considering the implications of recent information on stock structure of humpback whales in the North Atlantic. This includes the 2016 global Status Review of humpback whales that led to the revised ESA listing of the species, based on identification of distinct population segments (DPS) (Bettridge
In 2023, NMFS revised the SAR for the Barataria Bay Estuarine System (BBES) stock of common bottlenose dolphins as recommended by the Atlantic Scientific Review Group to incorporate recent publications regarding health assessment data and projected outcomes for the proposed mid-Barataria sediment diversion (MBSD) project. Recent health assessment data indicate disease conditions have persisted and worsened in Barataria Bay dolphins presumably exposed to oil from the
In 2023, NMFS reviewed all 85 stocks in the Pacific region (waters along the U.S. West Coast, within waters surrounding the main and Northwestern Hawaiian Islands, and within waters surrounding U.S. territories in the Western Pacific) for new information and revised SARs for thirty stocks (8
The Northern California-Southern Oregon harbor porpoise stock is proposed to be split into two stocks: the Northern California-Southern Oregon and Central Oregon harbor porpoise stocks. In proposing this revised stock structure, NMFS followed the process outlined in its procedural directive 02-204-03: Reviewing and Designating Stocks and Issuing Stock Assessment Reports under the Marine Mammal Protection Act (NMFS 2019). Genetic evidence (Morin
As an ongoing effort to reflect indigenous knowledge, NMFS is proposing to rename Pacific Island marine mammal stocks to align with the original Hawaiian names of various islands and places where the stocks reside. For the 2023 SAR cycle, NMFS proposes to change the names of stocks with ‘4-Islands’ in the name to ‘Maui Nui.’ Maui Nui includes the islands of Moloka'i, Lāna'i, Maui, and Kaho'olawe. In the future, NMFS plans to propose additional changes to include transitioning from the English name for some of the islands and atolls in the northwestern Hawaiian Islands to the original Hawaiian name.
We note that due to a technical error in processing, we did not include in the list of significant comments on the draft 2022 SARs a joint comment submitted by Natural Resources Defense Council, Endangered Habitats League, Turtle Island Restoration Network, American Cetacean Society-Oregon Chapter, Cape Perpetua Collaborative, Center for Biological Diversity, Ocean Defenders Alliance, Defenders of Wildlife, Whale and Dolphin Conservation, and Oceana. However, the comment was addressed in a response published elsewhere in the 2022 Final Stock Assessment Reports
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
To accommodate the requirements of the final rule, NTIS is using both the ACAB Systems Safeguards Attestation Form and the AG or IG Systems Safeguards Attestation Form.
The ACAB Systems Safeguards Attestation Form requires an “Accredited Conformity Assessment Body” (ACAB), as defined in the final rule, to attest that a Person seeking certification or a Certified Person seeking renewal of certification has information security systems, facilities and procedures in place to protect the security of the Limited Access DMF, as required under section 1110.102(a)(2) of the final rule. The ACAB Systems Safeguards Attestation Form collects information based on an assessment by the ACAB conducted within three years prior to the date of the Person or Certified Person's submission of a completed certification statement under section 1110.101(a) of the final rule. This collection includes specific requirements of the final rule, which the ACAB must certify are satisfied, and the provision of specific information by the ACAB, such as the date of the assessment and the auditing standard(s) used for the assessment.
Section 1110.501(a)(2) of the final rule provides that a State or local government office of AG or IG and a Person or Certified Person that is a department or agency of the same State or local government, respectively, are not considered to be owned by a common “parent” entity under section 1110.501(a)(1)(ii) for the purpose of determining independence, and attestation by the AG or IG is possible. The AG or IG Systems Safeguards
This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice on the following website
United States Patent and Trademark Office, Department of Commerce.
Notice of information collection; request for comment.
The United States Patent and Trademark Office (USPTO), as required by the Paperwork Reduction Act of 1995, invites comments on the extension and revision of an existing information collection: 0651-0031 (Patent Processing). The purpose of this notice is to allow 60 days for public comment preceding submission of this information collection to OMB.
To ensure consideration, comments regarding this information collection must be received on or before March 29, 2024.
Interested persons are invited to submit written comments by any of the following methods. Do not submit Confidential Business Information or otherwise sensitive or protected information.
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Requests for additional information should be directed to Raul Tamayo, Senior Legal Advisor, Office of Patent Legal Administration, P.O. Box 1450, Alexandria, VA 22313-1450; by telephone at 571-272-7728; or by email to
The United States Patent and Trademark Office (USPTO) is required by 35 U.S.C. 131 to examine an application for patent and, when appropriate, issue a patent. The USPTO is also required to publish patent applications, with certain exceptions, promptly after the expiration of a period of eighteen months from the earliest filing date for which a benefit is sought under title 35, United States Code (“eighteen-month publication”). Certain situations may arise which require that additional information be supplied in order for the USPTO to further process the patent or application. The USPTO administers the statutes through various sections of the rules of practice in 37 CFR part 1.
During the processing of an application for a patent, the applicant or the applicant's representative may be required to submit additional information to the USPTO concerning the examination of a specific application. The specific information required to be submitted includes: requests for extension of time, abandonment of applications and the revival of abandoned applications, disclaimers, appeals, petitions, expedited examination of design applications, requests for continued examinations, requests to inspect, copy, access patent applications, and transmittal forms.
The information in this collection is used by the USPTO to continue the processing of the patent or application to ensure that applicants are complying with the patent regulations and to aid in the prosecution of the application. This also includes situations that require additional information in order for the USPTO to further process the patent or application.
The items in this information collection can be submitted through the USPTO patent electronic filing system (Patent Center), the USPTO's online filing and viewing system for patent applications and related documents. The USPTO also will accept submissions by mail, hand delivery, and facsimile.
The fees in this information collection are listed in the table below. The fee for Request for Prioritized Examination has no counterpart in the hourly cost table due to that form being exempt from the PRA.
Although the USPTO prefers that the items in this information collection be submitted electronically, responses may be submitted by mail through the United States Postal Service (USPS). The USPTO estimates that 1% of the 2,435,597 items will be submitted in the mail resulting in 24,356 mailed items. The USPTO estimates that the average postage cost for a mailed submission, using a Priority Mail flat rate legal envelope, will be $9.95. Therefore, the USPTO estimates that the total mailing costs for this information collection is $242,342.
The USPTO is soliciting public comments to:
(a) Evaluate 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;
(b) Evaluate the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected; and
(d) Minimize the burden of the collection of information on those who
All comments submitted in response to this notice are a matter of public record. USPTO will include or summarize each comment in the request to OMB to approve this information collection. Before including an address, phone number, email address, or other personally identifiable information (PII) in a comment, be aware that the entire comment—including PII—may be made publicly available at any time. While you may ask in your comment to withhold PII from public view, USPTO cannot guarantee that it will be able to do so.
Patent and Trademark Office, Commerce.
Examination guidance; correction.
The United States Patent and Trademark Office (USPTO) published in the
Erin Harriman, Senior Legal Advisor, Office of Patent Legal Administration, at 571-272-7747; or Carolyn Kosowski, Senior Legal Advisor, Office of Patent Legal Administration, at 571-272-7688.
The USPTO published in the
In the
This supplemental guidance is applicable as of November 17, 2023. Comments must be received by November 18, 2024, to ensure consideration.
In addition, the USPTO has corrected Examples 2, 4, and 5 in Section (V) of the supplemental guidance published in the
The supplemental guidance, including the examples, will be incorporated into the Manual of Patent Examining Procedure in due course.
The United States Patent and Trademark Office (USPTO) will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The USPTO invites comments on this information collection renewal, which helps the USPTO assess the impact of its information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
The USA Staffing online application collects supplemental information to a candidate's USAJOBS application. This information assists USPTO Human Resource Specialists and Hiring Managers in determining whether an applicant possesses the basic qualification requirements for a patent examiner position. From the information collected, the USA Staffing system creates an electronic real-time candidate inventory on applicants' expertise and technical knowledge, which allows USPTO to immediately review applications from multiple
This information collection request may be viewed at
Written comments and recommendations for this information collection should be submitted within 30 days of the publication of this notice on the following website,
Further information can be obtained by:
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U.S. Army Corps of Engineers (USACE), Department of the Army, Department of Defense (DoD).
30-Day information collection notice.
The DoD has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by February 28, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Lane Purvis, (571) 372-0460,
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
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Requests for copies of the information collection proposal should be sent to Mr. Purvis at
Under Secretary of Defense for Personnel and Readiness (USD(P&R)), 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 Board of Regents, Uniformed Services University of the Health Sciences (BoR USUHS) will take place.
Monday, February 5, 2024, open to the public from 2:30 p.m. to 5 p.m. (EST).
The meeting will be held virtually. To participate in the meeting, see the Meeting Accessibility section for instructions.
Annette Askins-Roberts, Designated Federal Officer (DFO), at (301) 295-3066 or
Due to circumstances beyond the control of the DFO and the DoD, the BoR USUHS was unable to provide public notification required by 41 CFR 102-3.150(a) concerning its February 5, 2024 meeting. Accordingly, the Advisory Committee Management Officer for the DoD, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.
This meeting is being held under the provisions of chapter 10 of title 5, United States Code (U.S.C.) (commonly known as the “Federal Advisory Committee Act” or “FACA”), 5 U.S.C. 552b (commonly known as the “Government in the Sunshine Act”), and sections 102-3.140 and 102-3.150 of title 41, Code of Federal Regulations (CFR).
National Defense University, Chairman of the Joint Chiefs of Staff (CJCS), Department of Defense (DoD).
30-Day information collection notice.
The DoD has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by February 28, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Lane Purvis, (571) 372-0460,
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to
National Defense University, Chairman of the Joint Chiefs of Staff (CJCS), Department of Defense (DoD).
30-Day information collection notice.
The DoD has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by February 28, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Lane Purvis, (571) 372-0460,
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Mr. Purvis at
Pentagon Force Protection Agency (PFPA), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by March 29, 2024.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Pentagon Force
Department of the Navy (DoN), Department of Defense (DoD).
30-Day information collection notice.
The DoD has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by February 28, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Lane Purvis, (571) 372-0460,
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Mr. Purvis at
Department of the Navy (DoN), 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 Department of the Navy Science and Technology Board (DON S&T Board) will take place.
A closed meeting will be held on Monday, January 29, 2024 to January 31, 2024 from 8 a.m. to 5 p.m. Hawaii standard time (HST). A closed meeting is required because the discussions will involve classified national security matters and technical processes.
The closed meeting will be held at Naval Station Pearl Harbor, Honolulu, Hawaii.
Ms. Maria Proestou, Designated Federal Officer (DFO), Office of the Assistant Secretary of the Navy (Research, Development & Acquisition), Pentagon, Washington, DC 20350-1000, 703-692-8278,
This meeting is being held under the provisions of chapter 10 of title 5 U.S.C. (commonly known as the Federal Advisory Committee Act (FACA), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), title 41 Code of Federal Regulations (CFR) 102-3.140 and 102-3.150 and covered by 5 U.S.C. 552b(c)(l). Due to circumstances beyond the control of the Designated Federal Officer, the Department of the Navy Science and Technology Board was unable to provide public notification required by 41 CFR 102-3.150(a) concerning its January 29 through 31, 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.
Office of the Secretary (OS), 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 28, 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 Elyse Jones-Gillespie, (202) 453-5627.
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 of Postsecondary Education, Department of Education.
Notice.
The Department of Education is issuing a notice inviting applications for Fiscal Year (FY) 2024 for the Fulbright-Hays Doctoral Dissertation Research Abroad (DDRA) Fellowship Program, Assistance Listing Number 84.022A. This notice relates to the approved information collection under OMB control number 1840-0005.
For additional information about the Department's discretionary grant process, especially for new potential grantees unfamiliar with grantmaking at the Department, please review the Education Grants: Application, Management, & Closeout website at
The resources will be especially helpful for individuals who are exploring the Department's funding opportunities for the first time.
The addresses pertinent to this competition—including the addresses for obtaining and submitting an application—can be found under
Amy Marrion, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202. Telephone: (202) 453-5628. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to
This priority is:
A research project that focuses on one or more of the following geographic areas: Africa, East Asia, Southeast Asia and the Pacific Islands, South Asia, the Near East, Central and Eastern Europe and Eurasia, and the Western Hemisphere (excluding the United States and its territories).
These priorities are:
A research project that focuses on any modern foreign language except French, German, or Spanish.
Applications that propose dissertation research projects in modern foreign languages and area studies with an academic focus on any of the following academic fields: science (including climate change), technology, engineering (including infrastructure studies), mathematics, computer science, education (comparative or international), international development, political science, public health (including epidemiology), or economics.
The project will be implemented by one of the following entities:
• Historically Black colleges and universities (as defined in this notice).
• Minority-serving institutions (as defined in this notice).
• Tribal colleges and universities (as defined in this notice).
1.a.
b.
2.a.
b.
3.
4.
1.
If you request an application package from ED Pubs, be sure to identify this program as follows: Assistance Listing Number 84.022A.
2.
Submit applications for grants under the program electronically using
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
3.
4.
5.
• A “page” is 8.5″ × 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, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger, or no smaller than 10 pitch (characters per inch).
• 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, budget section, including the narrative budget justification; the assurance and certifications; or the one-page abstract, the resumes, the biography, or the letters of support. However, the recommended page limit does apply to all of the application narrative.
6.
To do business with the Department, you must—
a. Have a UEI and a TIN;
b. Register both your UEI and TIN with SAM, the Government's primary registrant database;
c. Provide your UEI and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data you enter into the SAM database. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your UEI and TIN. We strongly recommend that you register early.
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your UEI is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
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a.
Submit applications for grants under the Fulbright-Hays DDRA Fellowship Program, Assistance Listing Number 84.022A, electronically using the G6 system, accessible through the Department's G6 site at:
Please note the following:
• The process for submitting applications electronically under the Fulbright-Hays DDRA Fellowship Program requires several steps. The following is a brief overview of the process; however, all applicants should review the detailed description of the application process in the application package. In summary, the major steps are:
(1) IHEs must email the name of the institution and the full name and email address of the project director to
(2) Doctoral students must complete their individual applications and submit them to their home IHE project director using G6;
(3) Persons providing references for individual doctoral students must complete and submit reference forms for the doctoral students to the IHE project director using G6; and
(4) The IHE project director must officially submit the IHE's application, including all eligible individual doctoral student applications, reference forms, and other required forms, using G6.
• The IHE must complete the electronic submission of the grant application by 11:59:59 p.m., Eastern Time, on the application deadline date. G6 will not accept an application for this competition after 11:59:59 p.m., Eastern Time, on the application deadline date. Therefore, we strongly recommend that both the IHE and the doctoral student applicant not wait until close to the application deadline date to begin the application process. The table below shows the days and times that the G6 website will be available.
• Doctoral student applicants will not receive additional points because they submit their applications in electronic format, nor will we penalize the IHE or the doctoral student applicant if the applicant qualifies for an exception to the electronic submission requirement, as described elsewhere in this section, and submits an application in paper format.
• IHEs must upload all application documents electronically, including the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• Both IHEs and doctoral student applicants must upload their applications, including the required narrative sections and all required attachments to their applications, as files in a read-only flattened Portable Document Format (PDF), meaning any fillable documents must be saved and submitted as non-fillable PDF files. Do not upload any interactive or fillable PDF files. If you upload a file type other than a read-only, non-modifiable PDF (
• Submit doctoral student transcripts electronically through the G6 system.
• Prior to submitting your electronic application, you may wish to print a copy of it for your records.
• After the individual doctoral student electronically submits their application to the IHE, the doctoral student will receive an automatic acknowledgment from the G6 system. After the person designated to provide a reference submits the reference electronically to the Department on behalf of a doctoral student applicant, they will receive an automatic acknowledgment from the G6 system. After the applicant IHE submits its application to the Department, including all eligible individual doctoral student applications, the applicant IHE will receive an automatic acknowledgment from G6 that will include a unique PR/Award number for the IHE's application.
• Within 3 working days after submitting its electronic application, the applicant IHE must—
(1) Print the SF 424 from G6;
(2) Have the Authorizing Representative sign the SF 424 form;
(3) Place the PR/Award number in the upper right-hand corner of the hard-copy signature page of the SF 424; and
(4) Email the signed SF 424 to
• We may request that you provide us hard copies with original signatures for other forms in the application at a later date.
(1) The IHE is a registered user of the G6 system and the IHE has initiated an electronic application for this competition; and
(2) G6 is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 11:59 p.m., Eastern Time, on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting the IHE an extension. To request this extension or to confirm our acknowledgment of any system unavailability, an IHE may contact either (1) the person listed under
b.
We discourage paper applications, but if electronic submission is not possible (
If you submit a paper application, you must have, and include in your application, a UEI and you must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, OFO/G6 Functional Application Team, Mail Stop 5C231, Attention: 84.022A, 400 Maryland Avenue SW, Washington, DC 20202-4260.
The IHE must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If the IHE mails its application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
We will not consider applications postmarked after the application deadline date.
c.
(1) The IHE must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424, the Assistance Listing Number, including suffix letter, if any, of the competition under which the IHE is submitting its application; and
(2) The G6 Functional Application Team will notify you of the Department's receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should contact the person listed under
1.
(a)
(1) The statement of the major hypotheses to be tested or questions to be examined, and the description and justification of the research methods to be used (20 points);
(2) The relationship of the research to the literature on the topic and to major theoretical issues in the field, and the project's originality and importance in terms of the concerns of the discipline (10 points);
(3) The preliminary research already completed in the United States and overseas or plans for such research prior to going overseas, and the kinds, quality and availability of data for the research in the host country or countries (10 points);
(4) The justification for overseas field research and preparations to establish appropriate and sufficient research contacts and affiliations abroad (10 points);
(5) The applicant's plans to share the results of the research in progress and a copy of the dissertation with scholars and officials of the host country or countries (3 points); and
(6) The guidance and supervision of the dissertation advisor or committee at all stages of the project, including guidance in developing the project, understanding research conditions abroad, and acquainting the applicant with research in the field (10 points).
(b)
(1) The overall strength of the applicant's graduate academic record (10 points);
(2) The extent to which the applicant's academic record demonstrates strength in area studies relevant to the proposed project (10 points);
(3) The applicant's proficiency in one or more of the languages (other than English) of the host country or countries of research (10 points);
(4) The extent to which the applicant's academic record demonstrates steps taken to further improve advanced language proficiency to overcome any anticipated language barriers relative to the proposed research project (5 points); and
(5) The applicant's ability to conduct research in a foreign cultural context, as evidenced by the applicant's references or previous overseas experience, or both (2 points).
2.
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).
For FY 2024, doctoral student applications will be divided into seven categories based on the world area focus of their research projects, as described in the absolute priority. Foreign language and area studies experts assigned to world area-based panels will review the doctoral student applications. Each panel will review, score, and rank its applications separately from the applications assigned to the other world area panels. At the conclusion of the peer review process, however, all fellowship applications in the competition will be ranked from the highest to the lowest score for funding purposes.
If there are applications on the rank order slate with the same average score, the Fulbright Foreign Scholarship Board's (FFSB) policy governing veteran's preference will be used in the tiebreaker and selection process. Veteran's preference will be used first to determine which application to recommend for funding. This means that in instances where two or more applications have the same average score on the rank order slate, and there are insufficient funds to support all of the equally ranked applications, the veteran's application will be given preference.
For applications that have tied average scores but are not subject to veteran's preference consideration, we will use the average score assigned on the Technical Review Forms for the “Quality of the proposed project” selection criterion. If a tie still exists, the average score for selection criterion
3.
4.
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.
5.
(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).
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(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
4.
For the purpose of Department reporting under 34 CFR 75.110, the Department will use the following measures to evaluate its success in meeting this objective:
The information provided by grantees in their performance reports submitted via the International Resource Information System (IRIS) will be the source of data for these measures. Reporting screens for institutions and fellows may be viewed at
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 a revision of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before March 29, 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 Crystal Moore, 202-987-0607.
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.
National Advisory Committee on Institutional Quality and Integrity (NACIQI or Committee), Office of Postsecondary Education, Department of Education.
Announcement of an open meeting.
This notice sets forth the agenda, time, and instructions to access or participate in the February 27-28, 2024, hybrid meeting of NACIQI, and provides information to members of the public regarding the meeting, including requesting to make written or oral comments. Committee members will meet in-person while accrediting agency representatives and members of the public will participate virtually. The notice of this meeting is required under section 1009(a)(2) of 5 U.S.C. chapter 10 (Federal Advisory Committees) and section 114(d)(1)(B) of the Higher
Lyndon Baines Johnson Department of Education Building, Barnard Auditorium, 400 Maryland Avenue SW, Washington, DC 20202 [Only NACIQI members and Department of Education staff will participate in the meeting at this address].
The hybrid NACIQI meeting will be held on February 27-28, 2024, from 9:00 a.m. to 5:00 p.m. Eastern Standard Time.
George Alan Smith, Executive Director/Designated Federal Official (DFO), NACIQI, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202, telephone: (202) 453-7757, or email:
• The establishment and enforcement of the standards of accrediting agencies or associations under subpart 2, part H, Title IV of the HEA, as amended;
• The recognition of specific accrediting agencies or associations;
• The preparation and publication of the list of nationally recognized accrediting agencies and associations;
• The eligibility and certification process for institutions of higher education under Title IV of the HEA, together with recommendations for improvement in such process;
• The relationship between (1) accreditation of institutions of higher education and the certification and eligibility of such institutions, and (2) State licensing responsibilities with respect to such institutions; and
• Any other advisory functions relating to accreditation and institutional eligibility that the Secretary of Education may prescribe by regulation.
The purpose of the meeting is to conduct a review of the following applications for renewal of recognition, compliance reports, and requests for expansion of scope.
1. The Kansas State Board of Nursing. Scope of Recognition: state agency for the approval of nurse education.
2. The Missouri State Board of Nursing. Scope of Recognition: state agency for the approval of nurse education.
3. The Oklahoma Board of Career and Technology Education. Scope of Recognition: the approval of public postsecondary vocational education offered at institutions in the State of Oklahoma that are not under the jurisdiction of the Oklahoma State Regents for Higher Education, including the approval of public postsecondary vocational education offered via distance education.
4. New York State Board of Regents (Public Postsecondary Vocational Ed, Practical Nursing). Scope of Recognition: state agency for the approval of public postsecondary vocational education in the field of practical nursing offered by a Board of Cooperative Educational Services, an Educational Opportunity Center, City School Districts, and County Boards of Supervisors to prepare persons for licensed practical nursing careers in the State of New York.
5. The Pennsylvania State Board of Career and Technical Education. Scope of Recognition: state agency for the approval of public postsecondary vocational education.
1. Accreditation Commission for Acupuncture and Herbal Medicine (ACAHM). Scope of recognition: the accreditation and pre-accreditation (“Candidacy”) of professional non-degree and graduate degree programs, including professional doctoral programs, in the field of acupuncture and/or Oriental medicine, as well as freestanding institutions and colleges of acupuncture and/or Oriental medicine that offer such programs, including programs offered via distance education. Geographic Area of Accrediting Activities: throughout the United States. Please note, this accrediting agency changed its name from “Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM)” effective September 8, 2021.
The compliance report must address findings of noncompliance with 34 CFR part 602, as referenced in the senior Department official's (SDO) decision letter dated October 27, 2021. The SDO also required that the Department staff's 34 CFR 602.33 inquiry findings concerning the Seldin/Haring-Smith Foundation case study on Sex Trafficking and State Authorized Massage Schools, which involved an ACAHM accredited institution, be produced as part of the ACAHM compliance report. The SDO decision letter may be found under NACIQI meeting date July 27, 2021, available at:
2. Council on Occupational Education. Scope of recognition: the accreditation and pre-accreditation (“Candidacy Status”) of postsecondary occupational education institutions offering non-degree and applied associate degree programs in specific career and technical education fields, including institutions that offer programs via distance education. Geographic Area of Accrediting Activities: throughout the United States.
The compliance report must address findings of noncompliance with 34 CFR part 602, as referenced in the SDO decision letter dated October 27, 2021. The SDO decision letter may be found under NACIQI meeting date July 27, 2021, available at:
3. Transnational Association of Christian Colleges and Schools, Accreditation Commission. Scope of Recognition: the accreditation and pre-accreditation (“Candidate” status) of Christian postsecondary institutions that offer certificates, diplomas, and associate, baccalaureate, and graduate degrees, including institutions that offer distance education. Geographic Area of Accrediting Activities: throughout the United States. The compliance report must address findings of noncompliance with 34 CFR part 602, as referenced in the SDO decision letter dated October 27, 2021. The SDO decision letter may be found under NACIQI meeting date July 27, 2021, available at:
1. National Nurse Practitioner Residency and Fellowship Training Consortium. Scope of Recognition: the accreditation of nurse practitioner (NP) postgraduate residency and fellowship training programs. This recognition also extends to the agency's Appeals Panel. Requested Scope: the accreditation of joint nurse practitioner/physician assistant postgraduate residency and fellowship training programs. This recognition also extends to the agency's Appeals Panel.
Agency representatives should be prepared to respond to possible questions from committee members about their respective agency's dashboards, which are located on the NACIQI website:
To ensure sufficient time for all agency reviews, including NACIQI questions and discussion, the Department requests that the agencies
A representative of the Administration will discuss higher education policy priorities.
The subcommittee will report on information it received from interviews conducted with institutional accreditors.
In addition to its review of accrediting agencies and State approval agencies for Secretarial recognition, there will be time for Committee discussions relevant to any of the functions within NACIQI's statutory authority.
Accrediting agency representatives and members of the public can access or participate in the meeting virtually. You may register for the meeting on your computer using the link below. After you register, you will receive a confirmation email containing personalized participation links for each day of the two-day meeting.
Submission of requests to make an oral comment regarding a specific accrediting agency under review, or to make an oral comment or written statement regarding other issues within the scope of NACIQI's authority:
The opportunity to submit a written statement regarding a specific accrediting agency under review was solicited by a previous
Members of the public may make oral comments regarding a specific accrediting agency under review and/or other issues within the scope of NACIQI's authority. Oral comments may not exceed three minutes. Oral comments about an agency's recognition when a compliance report has been required by the SDO or the Secretary must relate to the criteria for recognition cited in the SDO's letter that requested the report, or in the Secretary's appeal decision, if any. Oral comments about an agency seeking expansion of scope must be directed to the agency's ability to serve as a recognized accrediting agency with respect to the kinds of institutions or programs requested to be added. Oral comments about the renewal of an agency's recognition must relate to its compliance with the criteria for the Recognition of Accrediting Agencies, which are available at
Written statements and oral comments concerning NACIQI's work outside of a specific accrediting agency under review must be limited to matters within the scope of NACIQI's authority, as outlined under Section 114 of the HEA (20 U.S.C. 1011c), and written statements of any kind submitted after the deadline will not be considered by the Department or provided to NACIQI for purposes of the current cycle review.
To make oral comments of three minutes or less during the meeting, please follow either Method One or Method Two below. To submit a written statement concerning NACIQI's work outside a specific accrediting agency under review, please follow Method One.
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 a revision of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before March 29, 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 Katrina Ballard, (202) 987-0702.
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.
Although the Education Department continues to use the generic 524B, OME is requesting to continue the use of a customized APR that goes beyond the generic 524B APR to facilitate the collection of more standardized and comprehensive data to inform performance indicators, to improve the overall quality of data collected, and to increase the quality of data that can be used to inform policy decisions.
Although the Education Department continues to use the generic 524B, OME is requesting to continue the use of a customized APR that goes beyond the generic 524B APR to facilitate the collection of more standardized and comprehensive data to inform Government Performance Results Act (GPRA) indicators, to improve the overall quality of data collected, and to increase the quality of data that can be used to inform policy decisions.
Election Assistance Commission (EAC).
Notice; request for comment.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the U.S. Election Assistance Commission (EAC) gives notice that it is requesting from the Office of Management and Budget (OMB) approval for the information collection of one Election Supporting Technology Evaluation Program form.
Comments must be received by 5 p.m. Eastern on Wednesday, February 28, 2024.
To view the proposed forms, see:
Written comments on the proposed information collection can also be sent to the U.S. Election Assistance Commission, 633 3rd Street NW, Suite 200, Washington, DC 20001, Attn: Election Supporting Technology Evaluation Program.
Elizabeth Beatrice, Election Technology Specialist, Election Supporting Technology Evaluation Program, Washington, DC (202) 748-2298. Email:
All requests and submissions should be identified by the title of the information collection.
This proposed information collection was previously published in the
The EAC Election Supporting Technology Evaluation Program evaluates the security and accessibility of election-supporting technologies, including electronic poll books, voter registration systems, electronic ballot delivery systems, and election night reporting databases.
The program is to publish one form. This is to be used to collect key information concerning election-supporting technology manufacturers and their systems. The application for participation in the Election Supporting Technology Evaluation Program collects administrative information on new or modified election-supporting technology systems that are being submitted for testing by a registered manufacturer.
This information is collected to improve the quality of election-supporting technology used in federal elections.
We are soliciting public comments to permit the EAC to:
• Evaluate whether the proposed information collection is necessary and sufficient for the proper functions of the Election Supporting Technology Evaluation Program.
• Evaluate the accuracy of our estimate of burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of information technology.
Please note that comments submitted in response to this notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
OMB approval is requested for 3 years.
The estimated cost of the annualized cost of this burden is: $1,681.
The estimated cost of the annualized cost of this burden is: $3,361.
Election Assistance Commission (EAC).
Notice; request for comment.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the U.S. Election Assistance Commission (EAC) gives notice that it is requesting from the Office of Management and Budget (OMB) approval for the information collection of one Election Supporting Technology Evaluation form. The information collected is to be used to improve the quality of election-supporting technology used in federal elections, and to collect necessary key information on election-supporting technology manufacturers and their systems. Participation in this program is voluntary.
Comments must be received by 5 p.m. Eastern on Wednesday, February 28, 2024.
Comments on the proposed form should be submitted electronically via
Written comments on the proposed information collection can also be sent to the U.S. Election Assistance Commission, 633 3rd Street NW, Suite 200, Washington, DC 20001, Attn: Election Supporting Technology Evaluation Program.
Elizabeth Beatrice, Election Technology Specialist, Election Supporting Technology Evaluation Program, Washington, DC (202) 748-2298. Email:
All requests and submissions should be identified by the title of the information collection.
This proposed information collection was previously published in the
The EAC Election Supporting Technology Evaluation Program evaluates the security and accessibility of election-supporting technologies, including electronic poll books, voter registration systems, electronic ballot delivery systems, and election night reporting databases.
The program is to publish one form. This is to be used to collect key information concerning election-supporting technology manufacturers. The application for registration in the Election Supporting Technology Evaluation Program collects administrative information on manufacturers and their organizations.
This information is collected to improve the quality of election-supporting technology used in federal elections.
We are soliciting public comments to permit the EAC to:
• Evaluate whether the proposed information collection is necessary and sufficient for the proper functions of the Election Supporting Technology Evaluation Program.
• Evaluate the accuracy of our estimate of burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
OMB approval is requested for 3 years.
On February 28, 2020, Empire District Electric Company (Empire District) filed an application for a new major license to continue operating the existing, 16-megawatt Ozark Beach Hydroelectric Project No. 2221 (Ozark Beach Project). Empire District filed an amended application on August 28, 2020. The project is located on the White River, near the Town of Forsyth, in Taney County, Missouri. The project occupies 5.1 acres of federal land administered by the U.S. Army Corps of Engineers.
In accordance with the Commission's regulations, on November 9, 2023, Commission staff issued a notice that the project was ready for environmental analysis (REA notice). Based on the information in the record staff does not anticipate that licensing the project would constitute a major federal action significantly affecting the quality of the human environment. Therefore, staff intends to prepare an Environmental Assessment (EA) on the application to license the Ozark Beach Project.
The EA will be issued and circulated for review by all interested parties. All comments filed on the EA will be analyzed by staff and considered in the Commission's final licensing decision.
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
The application will be processed according to the following schedule. Revisions to the schedule may be made as appropriate.
Any questions regarding this notice may be directed to Colleen Corballis at
This is a supplemental notice in the above-referenced proceeding of Franklin Solar 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 12, 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
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Take notice that on January 17, 2024, Transcontinental Gas Pipe Line Company, LLC (Transco), PO Box 1396, Houston, Texas 77251-1396, filed in the above referenced docket, a prior notice request pursuant to sections 157.205 and 157.208 of the Commission's regulations under the Natural Gas Act (NGA), and Transco's blanket certificate issued in Docket No. CP82-426-000, for authorization to construct its Mainline “A” MP 1817.1 Newark Relocation Project (Project). Specifically, Transco proposes to install 0.42 miles of 30-inch-diameter Mainline “A” pipeline and abandon in-place approximately 0.40 miles of existing 30-inch-diameter Mainline “A” pipeline in Essex County, New Jersey to accommodate development of a warehouse by the landowner. Transco estimates the cost of the Project to be approximately $15.6 million, all as more fully set forth in the request which is on file with the Commission and open to public inspection.
In addition to publishing the full text of this document in the
Any questions concerning this request should be directed to: Andre Pereira Manager, Certificates and Modernization, Transcontinental Gas Pipe Line Company, LLC, P.O. Box 1396, Houston, Texas 77251-1396, by telephone at (713) 215-4362, or by email at
There are three ways to become involved in the Commission's review of this project: you can file a protest to the project, you can file a motion to intervene in the proceeding, and you can file comments on the project. There is no fee or cost for filing protests, motions to intervene, or comments. The deadline for filing protests, motions to intervene, and comments is 5:00 p.m. Eastern Time on March 22, 2024. How to file protests, motions to intervene, and comments is explained below.
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
Pursuant to section 157.205 of the Commission's regulations under the NGA,
Protests must comply with the requirements specified in section 157.205(e) of the Commission's regulations,
Any person has the option to file a motion to intervene in this proceeding. Only intervenors have the right to request rehearing of Commission orders issued in this proceeding and to subsequently challenge the Commission's orders in the U.S. Circuit Courts of Appeal.
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
All timely, unopposed motions to intervene are automatically granted by operation of Rule 214(c)(1). Motions to intervene that are filed after the intervention deadline are untimely and may be denied. Any late-filed motion to intervene must show good cause for being late and must explain why the time limitation should be waived and provide justification by reference to factors set forth in Rule 214(d) of the Commission's Rules and Regulations. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies (paper or electronic) of all documents filed by the applicant and by all other parties.
Any person wishing to comment on the project may do so. The Commission considers all comments received about the project in determining the appropriate action to be taken. To ensure that your comments are timely and properly recorded, please submit your comments on or before March 22, 2024. The filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding.
There are two ways to submit protests, motions to intervene, and comments. In both instances, please reference the Project docket number CP24-42-000 in your submission.
(1) You may file your protest, motion to intervene, and comments by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your submission by mailing it to the address below. Your submission must reference the Project docket number CP24-42-000.
The Commission encourages electronic filing of submissions (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served on the applicant either by mail or email (with a link to the document) at: Andre Pereira Manager, Certificates and Modernization, Transcontinental Gas Pipe Line Company, LLC, P.O. Box 1396, Houston, Texas 77251-1396 or by email at
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with
The license for the Langdale Hydroelectric Project No. 2341 was issued for a period ending December 31, 2023.
Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee(s) under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2341 is issued to the Georgia Power Company for a period effective January 1, 2024, through December 31, 2024, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before December 31, 2024, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that the Georgia Power Company is authorized to continue operation of the Langdale Hydroelectric Project under the terms and conditions of the prior license until the issuance of a subsequent license for the project or other disposition under the FPA, whichever comes first.
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following Complaints and Compliance filings in EL Dockets:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
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 (
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
The license for the Riverview Hydroelectric Project No. 2350 was issued for a period ending December 31, 2023.
Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee(s) under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2350 is issued to the Georgia Power Company for a period effective January 1, 2024, through December 31, 2024, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before December 31, 2024, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that the Georgia Power Company is authorized to continue operation of the Riverview Hydroelectric Project under the terms and conditions of the prior license until the issuance of a subsequent license for the project or other disposition under the FPA, whichever comes first.
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 Brainerd Hydroelectric Project (project). The project is located on the Mississippi River in the City of Brainerd, in Crow Wing County, Minnesota. 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 project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
The Commission provides all interested persons with an opportunity to view and/or print the EA via the internet through the Commission's Home Page (
You may also register online at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595, or
Any comments should be filed within 30 days from the date of this notice.
The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
For further information, contact Patrick Ely at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Clean School Bus (CSB) Rebate Program
Comments must be submitted on or before March 29, 2024.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2012-0103, to EPA online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Timothy Thomas, Office of Transportation and Air Quality, (6406A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 734-214-4465; email address:
This is a proposed extension of the ICR, which is currently approved through August 31, 2025. 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. Public comments were previously requested via the
EPA uses approved procedures and forms to collect necessary information to operate the CSB Rebate Program and has been providing these rebates since 2022. For each rebate program, EPA utilizes three online forms for the three phases of the rebate lifecycle: (1) Application Form for eligible entities to apply to a new rebate program, (2) Payment Request Form for selectees to submit order documentation and receive funds, and (3) Close Out Form for selectees to document completion of the rebate-eligible activity. In Fall 2023, EPA launched the 2023 CSB Rebate Application for applicants, and the 2022 CSB Rebate Close Out Form for existing 2022 program participants; EPA is currently preparing to launch the 2023 CSB Rebate Payment Request Form in early spring of 2024. EPA will subsequently launch the 2023 CSB Rebate Close Out Form, as well as each rebate form for any future rebate programs (
School buses collectively travel over four billion miles each year, providing safe transportation to and from school for more than 25 million American children every day. The CSB Rebate Program funds the replacement of existing school buses with cleaner buses, the operation of which result in better air quality throughout the communities in which they operate.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Generic Clearance for Participatory Science and Crowdsourcing Projects (EPA ICR Number 2521.41, OMB Control Number 2080-0083) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through January 31, 2024. Public comments were previously requested via the
Comments may be submitted on or before February 28, 2024.
Submit your comments, referencing Docket ID No. EPA-HQ-ORD-2015-0659, to EPA online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Heather Drumm, Office of Research and Development-Office of Science Advisor, Policy and Engagement, (8104R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-8239; email address:
This is a proposed extension of the ICR, which is currently approved through January 31, 2024. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Public comments were previously requested via the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), EPA's ENERGY STAR Program in the Commercial and Industrial Sectors (EPA ICR Number 1772.09, OMB Control Number. 2060-0347) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through January 31, 2024. Public comments were previously requested via the
Comments may be submitted on or before February 28, 2024.
Submit your comments to EPA, referencing Docket ID Number EPA-HQ-OAR-2006-0407 online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Cynthia Veit Maia, Climate Protection Partnerships Division, (5230A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-9494; fax number: 202-343-2204; email address:
This is a proposed extension of the ICR, which is currently approved through January 31, 2024. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Public comments were previously requested via the
To join ENERGY STAR, organizations are asked to complete a Partnership Application that establishes their commitment to energy efficiency. Partners agree to undertake efforts such as measuring, tracking, and benchmarking their organization's energy performance by using tools such as those offered by ENERGY STAR; developing and implementing a plan to improve energy performance in their facilities and operations by adopting a strategy provided by ENERGY STAR; educating staff and the public about their Partnership with ENERGY STAR, and highlighting achievements with the ENERGY STAR, where available.
Partners also may be asked to periodically submit information to EPA as needed to assist in program implementation.
Partnership in ENERGY STAR is voluntary and can be terminated by Partners or EPA at any time. EPA does not expect organizations to join the program unless they expect participation to be cost-effective and otherwise beneficial for them.
In addition, Partners and other interested parties can seek recognition and help EPA promote energy-efficient technologies by evaluating the efficiency of their buildings using EPA's online tools (
Program changes reflect revisions to the array of activities EPA carries out under the ENERGY STAR Certification for Buildings. The adjustments are primarily related to the benchmarking process. While more buildings across the country are following Building Performance Standards, the time needed to benchmark each one is diminishing as the proportion of first-time respondents falls and their utilization of time-saving Web Services grows.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Control of Evaporative Emissions from New and In-Use Portable Gasoline Containers (Renewal), (EPA ICR Number
Comments must be submitted on or before February 28, 2024.
Submit your comments, referencing the Docket ID No. EPA-HQ-OAR-2013-0118, to the EPA: online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Philip Carlson, Compliance Division, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 2000 Traverwood, Ann Arbor, Michigan 48105; telephone number: 734-214-4270; fax number 734-214-4869; email address:
This is a proposed extension of the ICR, which is currently approved through January 31, 2024. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Public comments were previously requested via the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Regulation of Persistent, Bioaccumulative, and Toxic Chemicals under TSCA Section 6(h), (EPA ICR Number 2599.03, OMB Control Number 2070-0213) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through January 31, 2024. Public comments were previously requested via the
Comments may be submitted on or before February 28, 2024.
Submit your comments, referencing Docket ID Number EPA-HQ-OPP-2023-0105, to EPA online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Katherine Sleasman, Office of Program Support (7602M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 566-1204; email address:
This is a proposed extension of the ICR, which is currently approved through January 31, 2024. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Public comments were previously requested via the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Compliance Assurance Monitoring (CAM) Program (EPA ICR Number 1663.11, OMB Control Number 2060-0376), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through January 31, 2024. Public comments were previously requested, via the
Comments may be submitted on or before February 28, 2024.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2003-0152, to EPA online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Muntasir Ali, Sector Policies and Program Division (D243-05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-0833; email address:
This is a proposed extension of the ICR, which is currently approved through January 31, 2024. An agency may neither conduct nor sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Public comments were previously requested, via the
The CAM program was designed to ensure monitoring provisions associated with the prevention of significant deterioration (PSD) program were included in the Title V permits and updated as necessary. The owners or operators were required to develop monitoring plans for sources with active control devices. The agency envisioned that, over time, all the title V permits would be issued and would require CAM rule requirements. Current burden reduction for the CAM rule is based on complete issuance of title V permits, meaning no additional sources with active control devices need CAM plans; only ongoing, not new, CAM is needed. Since there are no new CAM plans, only review of existing CAM plans, the renewal review hours drop. No changes to the CAM rule keep costs the same (
10 a.m., Thursday, February 8, 2024.
You may observe this meeting in person at 1501 Farm Credit Drive, McLean, Virginia 22102-5090, or virtually. If you would like to observe, at least 24 hours in advance, visit
This meeting will be open to the public.
The following matters will be considered:
If you need more information or assistance for accessibility reasons, or have questions, contact Ashley Waldron, Secretary to the Board. Telephone: 703-883-4009. TTY: 703-883-4056.
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 29, 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.
The Commission's
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Federal Election Commission.
Notice of adjustments to expenditure limitations and lobbyist bundling disclosure threshold.
As mandated by provisions of the Federal Election Campaign Act (“the Act”), the Federal Election Commission (“the Commission”) is adjusting certain expenditure limitations and the lobbyist bundling disclosure threshold set forth in the Act, to index the amounts for inflation. Additional details appear in the supplemental information that follows.
The new limitations apply beginning on January 1, 2024.
1050 First Street NE, Washington, DC 20463.
Ms. Elizabeth S. Kurland, Information Division, (202) 694-1100 or (800) 424-9530,
Under the Federal Election Campaign Act, 52 U.S.C. 30101-45, coordinated party expenditure limits (52 U.S.C. 30116(d)(2)-(3)) and the disclosure threshold for contributions bundled by lobbyists (52 U.S.C. 30104(i)(3)(A)) are adjusted periodically to reflect changes in the consumer price index.
Under 52 U.S.C. 30116(c), the Commission must adjust the expenditure limitations established by 52 U.S.C. 30116(d) (the limits on expenditures by national party committees, state party committees, or their subordinate committees in connection with the general election campaign of candidates for Federal office) annually to account for inflation. This expenditure limitation is increased by the percent difference between the price index, as certified to the Commission by the Secretary of Labor, for the 12 months preceding the beginning of the calendar year and the price index for the base period (calendar year 1974). 52 U.S.C. 30116(c)(1)(B)(i), (2)(B)(i).
Both the national and state party committees have an expenditure limitation for each general election held to fill a seat in the House of Representatives in states with more than one congressional district.
Both the national and state party committees have an expenditure limitation for a general election held to fill a seat in the Senate or in the House of Representatives in states with only one congressional district.
The national party committees have an expenditure limitation for their general election nominee for President. 52 U.S.C. 30116(d)(2). The formula used to calculate the Presidential expenditure limitation considers not only the price index but also the total VAP of the United States.
For the convenience of the readers, the Commission is also republishing the contribution limitations for individuals, non-multicandidate committees and for certain political party committees giving to U.S. Senate candidates and national party committees for the 2023-2024 election cycle:
The Act requires certain political committees to disclose contributions bundled by lobbyists/registrants and lobbyist/registrant political action committees once the contributions exceed a specified threshold amount. 52 U.S.C. 30104(i)(1), (i)(3)(A). The Commission must adjust this threshold amount annually to account for inflation. 52 U.S.C. 30104(i)(3)(B). The disclosure threshold is increased by multiplying the $15,000 statutory disclosure threshold by 1.51143, the difference between the price index, as certified to the Commission by the Secretary of Labor, for the 12 months preceding the beginning of the calendar year and the price index for the base period (calendar year 2006).
On behalf of the Commission.
Federal Housing Finance Agency.
Contractor Workforce Inclusion Good Faith Efforts—30-day notice of submission of information collection for approval from Office of Management and Budget.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the Federal Housing Finance Agency (FHFA or the Agency) is seeking public comments concerning an information collection known as “Contractor Workforce Inclusion Good Faith Efforts,” which has been assigned control number 2590-0016 by the Office of Management and Budget (OMB). FHFA intends to submit the information collection to OMB for review and approval of a three-year extension of the control number, which is due to expire on January 31, 2024.
Interested persons may submit comments on or before February 28, 2024.
Submit comments to the Office of Information and Regulatory Affairs of the Office of Management and Budget, Attention: Desk Officer for the Federal Housing Finance Agency, Washington, DC 20503, Fax: (202) 395-3047, Email:
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We will post all public comments we receive without change, including any personal information you provide, such as your name and address, email address, and telephone number, on the FHFA website at
Takisha Koonce, Office of Minority and Women Inclusion,
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) FHFA's collection of information set forth in this document is titled “Contractor Workforce Inclusion Good Faith Efforts” (assigned control number 2590-0016 by OMB). To comply with the PRA requirement, FHFA is publishing notice of a proposed three-year extension of this collection of information, which is due to expire on January 31, 2024.
Section 342(a)(1)(A) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the Dodd-Frank Act) requires FHFA and certain other Federal agencies each to establish an Office of Minority and Women Inclusion (OMWI) responsible for all matters of the agency relating to diversity in management, employment, and business activities.
Further, section 342(c)(3)(A) of the Dodd-Frank Act requires that each agency's standards and procedures include a procedure for determining whether an agency contractor or subcontractor has failed to make a good faith effort to include minorities and women in its workforce. If the OMWI Director determines that a contractor or subcontractor has failed to make such a good faith effort, section 342(c)(3)(B)(i) provides that the OMWI Director shall recommend to the agency administrator that the contract be terminated. Section 342(c)(3)(B)(ii) provides that, upon receipt of such a recommendation, the agency administrator may either terminate the contract, make a referral to the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor, or take other appropriate action.
As a means of implementing the requirements of section 342(c) of the Dodd-Frank Act, FHFA developed a Minority and Women Inclusion Clause (MWI Clause) that it includes in Agency contracts with a dollar value greater than $150,000. The MWI Clause requires a contractor to confirm its commitment to equal opportunity in employment and contracting, and to implement that commitment by ensuring, to the maximum extent possible consistent with applicable law, the fair inclusion of minorities and women in its workforce. The MWI Clause also requires that a contractor include the substance of the MWI Clause in all subcontracts with a dollar value greater than $150,000 awarded under the contract. (Hereinafter, contractors that are subject to the MWI Clause and subcontractors that are subject to a similar clause required to be included in a subcontract are referred to as “covered” contractors and subcontractors.)
Finally, the MWI Clause requires a contractor to provide, when requested by FHFA, documentation demonstrating that the contractor, as well as any covered subcontractor has made a good faith effort to ensure the fair inclusion of minorities and women in its workforce. The MWI Clause provides that such documentation may include, but is not limited to: (1) the contractor's total number of employees, and the number of minority and women employees, by race, ethnicity, and gender (
On March 9, 2018, FHFA finalized its “Policy Establishing Procedures to Determine Compliance by Contractors with the Minority and Women Inclusion Contract Clause” (Good Faith Efforts Policy (GFEP)), which establishes a process to determine whether covered contractors or subcontractors are making good faith efforts to ensure the fair inclusion of minorities and women in their respective workforces. The GFEP ensures transparency, clarity, and consistency in the good faith effort review process. Covered contractors agree to provide documentation of the good faith effort they have made in support of this commitment within 10 business days after a request from FHFA. According to the GFEP, “OMWI will rely on the conclusions of a prior GFE review if OMWI conducted that review within the past two fiscal years.”
The purpose of this information collection is to fulfill the requirements of section 342(c) of the Dodd-Frank Act. The collected information allows FHFA's OMWI Director to determine whether covered contractors and subcontractors have complied with their contractual obligations to make good faith efforts to ensure, to the maximum extent possible consistent with applicable law, the fair inclusion of minorities and women in their respective workforces.
FHFA estimates that the average annual burden imposed on all respondents by this information collection over the next three years will be 725 hours. Because, as explained below, the amount of burden imposed upon a contractor by this information collection will differ depending upon whether the contractor has 50 or more employees, FHFA has based its total burden estimate on two separate sets of calculations—(1) one for contractors and subcontractors with 50 or more employees (30 hours); and (2) another for contractors and subcontractors with fewer than 50 employees (695 hours).
FHFA includes the MWI Clause in Agency contracts with a dollar value greater than $150,000. Under the MWI Clause, FHFA may also request information about covered subcontractors' ownership status, workforce demographics, and workforce inclusion plans. Contractors would request this information from their covered subcontractors, who, because the substance of the MWI Clause would be included in their subcontracts, would have a contractual obligation to keep
FHFA data on the dollar value of contracts awarded by the Agency from the beginning of fiscal year 2020 through fiscal year 2023 shows that 165 contractors were subject to the MWI Clause. FHFA believes that 85 of those contractors have 50 or more employees, while 80 contractors have fewer than 50 employees. FHFA estimates that no more than two subcontracts with a dollar value of $150,000 or more were awarded by Agency contractors during that same time period. Both of those subcontractors have 50 or more employees each. Thus, over the preceding three years, a total of 167 contractors and subcontractors were subject to the MWI Clause—87 of which have 50 or more employees and 80 of which have fewer than 50 employees.
Based on these figures, FHFA estimates that, on average over the next three years, 87 contractors and subcontractors with 50 or more employees and 80 contractors or subcontractors with fewer than 50 employees will be subject to the MWI Clause at any given time. As mentioned above, the GFEP provides that OMWI will rely on the conclusions of a prior GFE review if OMWI conducted that review within the past two fiscal years. Accordingly, a covered contractor or subcontractor is required to submit new information only once within any three-year period.
FHFA estimates that the average annual burden on contractors with 50 or more employees will be 30 hours (0 recordkeeping hours + 30 reporting hours). Because Federal contractors with 50 or more employees are already required to maintain the same types of records that may be requested pursuant to the MWI Clause under regulations implementing Title VII of the Civil Rights Act of 1964
With respect to reporting burden, FHFA estimates that it will take each contractor or subcontractor with 50 or more employees approximately one hour to retrieve, review, and submit the documentation specified in the MWI Clause. Thus, the estimate of the triennial burden upon contractors or subcontractors with 50 or more employees associated with reporting requirements under this information collection is 87 hours (87 respondents x 1 hour per respondent) and the annual burden is 30 hours.
FHFA estimates that the average annual burden on contractors and subcontractors with fewer than 50 employees will be 695 hours (667 recordkeeping hours + 28 reporting hours). OFCCP regulations require contractors with fewer than 50 employees to maintain records on the race, ethnicity, and gender of each employee.
In order to estimate the burden associated with creating a workforce inclusion plan, FHFA considered the OFCCP's burden estimates for the time needed to develop the written program summaries required under its regulations.
FHFA estimates that a contractor or subcontractor with fewer than 50 employees would spend approximately 25 hours creating a workforce inclusion plan for the first time. It is likely that, going forward, many small contractors and subcontractors will simply submit updated versions of workforce inclusion plans that they have submitted previously. For purposes of this burden estimate, however, FHFA has assumed that all small contractors and subcontractors will need to create a new plan every time they are required to submit information under the MWI clause. This results in an estimated average triennial recordkeeping burden on all contractors and subcontractors with fewer than 50 employees over the next three years of 2,000 hours (80 respondents × 25 hours per respondent), with an annual burden of 667 hours.
As with larger entities, FHFA estimates that it will take each contractor and subcontractor with fewer than 50 employees approximately one hour to retrieve, review, and submit the documentation specified in the MWI Clause. Thus, FHFA estimates that the average triennial reporting burden on all contractors and subcontractors with fewer than 50 employees will be 80 hours (80 respondents × 1 hour per respondent), with an annual burden of 28 hours.
In accordance with the requirements of 5 CFR 1320.8(d), FHFA published an initial notice and request for public comments regarding this information collection in the
FHFA requests written comments on the following: (1) Whether the collection of information is necessary for the proper performance of FHFA functions, including whether the information has practical utility; (2) the accuracy of FHFA's estimates of the burdens of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, with revision, the Government Securities Dealers Reports (FR 2004; OMB No. 7100-0003).
Comments must be submitted on or before March 29, 2024.
You may submit comments, identified by FR 2004, by any of the following methods:
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All public comments are available from the Board's website at
Additionally, commenters may send a copy of their comments to the Office of Management and Budget (OMB) Desk Officer for the Federal Reserve Board, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System,
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
During the comment period for this proposal, a copy of the proposed PRA OMB submission, including the draft reporting form and instructions, supporting statement (which contains more detail about the information collection and burden estimates than this notice), and other documentation, will be made available on the Board's public website at
The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Board's functions, including whether the information has practical utility;
b. The accuracy of the Board's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal.
• Weekly Report of Dealer Positions (FR 2004A),
• Weekly Report of Cumulative Dealer Transactions (FR 2004B),
• Weekly Report of Dealer Financing and Fails (FR 2004C),
• Weekly Report of Specific Issues (FR 2004SI),
• Daily Report of Specific Issues (FR 2004SD),
• Supplement to the Daily Report of Specific Issues (FR 2004SD ad hoc),
• Daily Report of Dealer Activity in Treasury Financing (FR 2004WI),
• Settlement Cycle Report of Dealer Fails and Transaction Volumes: Class A (FR 2004FA),
• Settlement Cycle Report of Dealer Fails and Transaction Volumes: Class B (FR 2004FB),
• Settlement Cycle Report of Dealer Fails and Transaction Volumes: Class C (FR 2004FC), and
• Settlement Cycle Report of Dealer Fails and Transaction Volumes (FR 2004FM).
The Federal Reserve Bank of New York, on behalf of the Federal Reserve System, collects data from primary dealers in the U.S. government securities market. Filing of these data is required to obtain the benefit of primary dealer status. The Federal Reserve uses these data to (1) monitor the condition of the U.S. government securities market in its Treasury market surveillance and analysis of the market and (2) assist and support the U.S. Department of the Treasury (Treasury) in its role as fiscal agent for Treasury financing operations. In addition, these data are used in the analysis of broad financial conditions and a range of financial stability issues.
Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, without revision, the Recordkeeping Requirements Associated with Regulation H (Real Estate Lending Standards Regulation for State Member Banks) (FR H-5; OMB No. 7100-0261).
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System,
Office of Management and Budget (OMB) Desk Officer for the Federal Reserve Board, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. The OMB inventory, as well as copies of the PRA Submission, supporting statements (which contain more detailed information about the information collections and burden estimates than this notice), and approved collection of information instrument(s) are available at
Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, without revision, the Interagency Notice of Change in Control, Interagency Notice of Change in Director or Senior Executive Officer, and Interagency Biographical and Financial Report (FR 2081a, b, and c; OMB No. 7100-0134).
Comments must be submitted on or before March 29, 2024.
You may submit comments, identified by FR 2081a, FR 2081b, or FR 2081c by any of the following methods:
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All public comments are available from the Board's website at
Additionally, commenters may send a copy of their comments to the Office of Management and Budget (OMB) Desk Officer for the Federal Reserve Board, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System,
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
During the comment period for this proposal, a copy of the proposed PRA OMB submission, including the draft reporting form and instructions, supporting statement (which contains more detail about the information collection and burden estimates than this notice), and other documentation, will be made available on the Board's public website at
The Board invites public comment on the following information collections, which are being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collections of information are necessary for the proper performance of the Board's functions, including whether the information has practical utility;
b. The accuracy of the Board's estimate of the burden of the proposed information collections, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal.
Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, without revision, the Interagency Bank Merger Act Application (FR 2070; OMB No. 7100-0171).
Comments must be submitted on or before March 29, 2024.
You may submit comments, identified by FR 2070, by any of the following methods:
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All public comments are available from the Board's website at
Additionally, commenters may send a copy of their comments to the Office of Management and Budget (OMB) Desk Officer for the Federal Reserve Board, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System,
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
During the comment period for this proposal, a copy of the proposed PRA OMB submission, including the draft reporting form and instructions, supporting statement (which contains more detail about the information collection and burden estimates than this notice), and other documentation, will be made available on the Board's public website at
The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Board's functions, including whether the information has practical utility;
b. The accuracy of the Board's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal.
Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, without revision, the Recordkeeping and Disclosure Requirements Associated with Regulation R (FR R; OMB No. 7100-0316).
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System,
Office of Management and Budget (OMB) Desk Officer for the Federal Reserve Board, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. The OMB inventory, as well as copies of the PRA Submission, supporting statements (which contain more detailed information about the information collections and burden estimates than this notice), and approved collection of information instrument(s) are available at
Board of Governors of the Federal Reserve System.
Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, without revision, the Recordkeeping and Disclosure Requirements Associated with Regulation H (Securities Transactions by State Member Banks) (FR H-3; OMB No. 7100-0196).
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System,
Office of Management and Budget (OMB) Desk Officer for the Federal Reserve Board, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. Board-approved collections of information are
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than February 13, 2024.
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Board of Governors of the Federal Reserve System.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than February 28, 2024.
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In addition, Maine Community Bancorp, MHC, and Maine Community Bancorp, Inc., to indirectly acquire Bigelow Investment Advisors, LLC, and thereby engage in financial and investment advisory activities pursuant to § 225.28(b)(6) of the Board's Regulation Y.
Board of Governors of the Federal Reserve System.
Office of Acquisition Policy, General Services Administration (GSA).
Notice of request for comments regarding an extension to an existing OMB information collection.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection regarding GSA solicitations issued for various supplies and services.
Submit comments on or before: February 28, 2024.
Written comments and recommendations for this information collection should be sent within 30 days of publication of this notice to
Mr. Clarence Harrison, Procurement Analyst, at
GSA requires organizations desiring to do business with GSA for various supplies and services to provide procurement-related information through solicitations issued in accordance with the Federal Acquisition Regulation (FAR) Part 12, 14, 15 and 16 procedures. Using solicitation methods such as Requests for Proposals (RFP), Requests for Information (RFI), and Broad Agency Announcements (BAA), GSA requests information from prospective offerors such as pricing information, delivery schedule compliance, and evidence that the offeror has the resources (both human and financial) to accomplish requirements. Much of the solicitation information collected is covered by FAR clauses and the separate information collection approvals associated with them. Other GSA solicitation requirements call for more detailed or technical information to be provided, such as project management or sustainability plans, and drive the need for this information collection.
A 60-day notice published in the
Department of Health and Human Services and General Services Administration.
Notice; correction.
The General Services Administration published a document in the
For further clarification of content, contact Christopher Coneeney, Supervisory Realty Specialist, Office of Government-wide Policy, U.S. General Services Administration, 1800 F Street NW, Washington, DC 20405; at 202-208-2956; or
In the
For further information, please read FMR Bulletin C-2024-01, Guidelines for Safety Station Programs in Federal Facilities, available at
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project “Generic Clearance for Questionnaire and Data Collection Testing, Evaluation, and Research for the Agency for Healthcare Research and Quality.” This proposed information collection was previously published in the
Comments on this notice must be received by February 28, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at
The Agency for Healthcare Research and Quality (AHRQ) requests that the Office of Management and Budget (OMB) re-approve generic pre-testing clearance 0935-0124 for three years to facilitate AHRQ's efforts to (1) employ evaluation-type methods and techniques to improve AHRQ's current data collection and estimation procedures, (2) develop new collections and procedures, including toolkits, and (3) revise existing collections and procedures. AHRQ believes that developing, testing, and evaluating data collection and estimation procedures using survey methods and other techniques in anticipation of agency-sponsored studies can improve its information collection efforts and the products it develops and allow AHRQ to be more responsive to fast-changing developments in the healthcare research field.
This clearance request is limited to research on data collection, toolkit development, and estimation procedures and reports and does not extend to the collection of data for public release or policy formation. The current Clearance (0935-0124) was granted on January 31, 2021, and expires on January 31, 2024.
This generic clearance will allow AHRQ to draft and test toolkits, survey instruments and other data collection and estimation procedures more quickly and with greater lead time, thereby managing project time more efficiently and improving the quality of the data AHRQ collects. In some instances, the ability to test and evaluate toolkits, data collection and estimation procedures in anticipation of work or early in a project may result in the decision not to proceed with additional activities, thereby saving both public and private resources and effectively eliminating respondent burden.
These preliminary research activities will not be used by AHRQ to regulate or sanction its customers. They will be entirely voluntary, and the confidentiality of respondents and their responses will be preserved. Proposed information collections submitted under this generic clearance will be submitted for review by OMB with a response expected in 14 days.
The information collected through preliminary research activities under this generic clearance will be used by AHRQ to employ techniques to (1) improve AHRQ's current data collection and estimation procedures, (2) develop new collections and procedures, including toolkits, and (3) revise existing collections and procedures in anticipation or in response to changes in the health or health care field. The end result will be improvement in AHRQ's data collections and procedures, and the quality of data collected, a reduction or minimization of respondent burden, increased agency efficiency, and improved responsiveness to the public.
Exhibit 1 shows the estimated burden hours, over the full three years of this clearance, for the respondents' time to participate in the research activities that may be conducted under this generic clearance. Mail surveys will be conducted with about 6,000 persons (2,000 per year for three years) and are estimated to average 20 minutes. Mail surveys may also be sent to respondents via email and may include a telephone non-response follow-up. Telephone non-response follow-up for mailed surveys is not counted as a telephone survey in Exhibit 1. Not more than 600 persons, over three years, will participate in telephone surveys that will take about 40 minutes. Web-based surveys will be conducted with no more than 3,000 persons and will require no more than 10 minutes to complete. About 1,500 persons will participate in focus groups which may last up to two hours, while in-person interviews will be conducted with 600 persons and will take about 50 minutes. Automated data collection will be conducted for about 1,500 persons and could take up to 1 hour. Cognitive testing will be conducted with about 600 persons and is estimated to take 1.5 hours to complete. The total burden over three years is estimated to be 8,900 hours (about 2,967 hours per year). Exhibit 2 shows the estimated cost burden over three years, based on the respondents' time to participate in these research activities. The total cost burden is estimated to be $412,028.
In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501-3520, comments on AHRQ's information collection are requested with regard to any of the following: (a) whether the proposed collection of information is necessary for the proper performance of AHRQ's health care research and health care information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) of information; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Centers for Disease Control and Prevention (CDC), the Department of Health and Human Services (HHS).
Notice.
CDC has modified its structure. This notice announces the reorganization of the Office of Strategic Business Initiatives (SBI) to transfer its management of the CDC Gift Review Panel to the Office of Policy, Performance, and Evaluation.
This reorganization was approved by the Director of CDC on January 17, 2024.
Kimberly Thurmond, Office of the Chief Operating Officer, Office of the Director, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS TW-2, Atlanta, GA 30329. Telephone 770-488-4401; Email:
Part C (Centers for Disease Control and Prevention) of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 88 FR 69188-69190, dated October 5, 2023) is amended to reflect the reorganization of the Office of Strategic Business Initiatives within the Office of the Chief Operating Officer, Centers for Disease Control and Prevention. Specifically, the changes are as follows:
• Change all instances of the acronym SBI to OSBI.
• Delete item (2) of the OSBI (CAJT) functional statement and insert the following: (2) strengthens CDC's administrative guidance and change management through agency-wide conference, policy, delegations of authority, organization and functions, and records management.
• Delete item (5) of the Office of Business Integrity and Strategic Management (CAJTB) functional statement and renumber the remaining items accordingly.
All delegations and redelegations of authority made to officials and employees of affected organizational components will continue in them or their successors pending further redelegation, provided they are consistent with this reorganization.
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 must be received by March 29, 2024.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
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 N. Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. 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 requires Federal agencies to publish a 60-day notice in the
Sections 1847A(i)(3)(G)(ii) and 1860D-14B(b)(1)(C)(ii) of the Act require that CMS reduce or waive the inflation rebate amount owed (if any) for a Part B rebatable biosimilar biological product and generic Part D rebatable drug or biosimilar when CMS determines there is a severe supply chain disruption during a calendar quarter or applicable period, respectively, such as that caused by a natural disaster or other unique or unexpected event. CMS must also reduce or waive the inflation rebate amount owed (if any) for a generic Part D rebatable drug if CMS determines that without such reduction or waiver, the drug is likely to be in shortage in a subsequent applicable period, as required by section 1860D-14B(b)(1)(C)(iii) of the Act.
CMS does not have information necessary to determine whether manufacturers of Part B and Part D rebatable drugs should have their rebate amount reduced due to either a severe supply chain disruption or a likely shortage as required by sections 1847A(i)(3)(G)(ii), 1860D-14B(b)(1)(C)(ii), and 1860D-14B(b)(1)(C)(iii) of the Act. Some of the information and supporting documentation needed for CMS to make a determination regarding a severe supply chain disruption and the likelihood of a future shortage are held by manufacturers and are not available to CMS. As such, for CMS to determine whether there is a severe supply chain disruption or likelihood of future shortage, in accordance with sections 1847A(i)(3)(G)(ii), 1860D-14B(b)(1)(C)(ii), and 1860D-14B(b)(1)(C)(iii) of the Act, a manufacturer must submit to CMS a request for a rebate reduction along with supporting documentation.
2.
CMS established the Qualified Entity Certification Program (QECP) to evaluate an organization's eligibility across three areas: (1) organizational and governance capabilities, (2) addition of claims data from other sources (as required in the statute), and (3) data privacy and security. QE certification lasts for 3 years. Organizations that are interested in remaining in the QE program must submit a Reapplication that is reviewed and approved by QECP. In addition, each year QEs must submit an annual report to QECP that provides information required by statute.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA), Center for Drug Evaluation and Research (CDER), Office of Pharmaceutical Quality (OPQ) has modified its organizational structure. This new structure was approved by the Secretary of Health and Human Services on August 10, 2023.
Michael Kopcha, Director, Office of Pharmaceutical Quality, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993, 240-402-2461.
Part D, Chapter D-B, (Food and Drug Administration), the Statement of Organization, Functions and Delegations of Authority for the Department of Health and Human Services (35 FR 3685, February 25, 1970, 60 FR 56606, November 9, 1995, 64 FR 36361, July 6, 1999, 72 FR 50112, August 30, 2007, 74 FR 41713, August 18, 2009, 76 FR 45270, July 28, 2011, and 84 FR 22854, May 20, 2019) is amended to reflect reorganization of CDER, OPQ.
This reorganization changed the OPQ organizational structure from an office with nine suboffices to 10 suboffices. The former offices with divisions and branches had their branches abolished and the branch functions and resources
The OPQ retitled four of its suboffices and retitled the majority of its divisions. The OPQ will establish the Office of Quality Assurance and within it established the Quality Assurance Staff, Learning and Professional Staff, and the Project Management Staff.
FDA, CDER, OPQ has been restructured as follows:
DCDL. ORGANIZATION. The Office of Pharmaceutical Quality is headed by the Director of Pharmaceutical Quality and includes the following organizational units:
Pending further delegation, directives, or orders by the Commissioner of Food and Drugs, all delegations and redelegations of authority made to officials and employees of affected organizational components will continue in them or their successors pending further redelegations, provided they are consistent with this reorganization.
This reorganization is reflected in FDA's Staff Manual Guide (SMG). Persons interested in seeing the complete SMG can find it on FDA's website at:
Collection of Grants and Contracts Data the Historically Black Colleges and Universities (HBCUs) and Small Businesses May Be Interested in Pursuing (Office of the Director)
National Institutes of Health, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH), Office of the Director, Office of Acquisitions and Logistics Management (OALM), Small Business Program Office (SBPO), has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
Comments regarding this information collection are best assured of having their full effect if received within 30-days of the date of this publication.
Written comments and recommendations for the proposed information collection should be sent
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Keondra Watts, Program Analyst, NIH, Office of the Director, Office of Acquisitions and Logistics Management, Small Business Program Office, 6701 Rockledge Dr., Bethesda, MD 20892-7786, or call non-toll-free number (301) 443-8722 or Email your request, including your address to:
This proposed information collection was previously published in the
The National Institutes of Health (NIH), Office of the Director, Office of Acquisitions and Logistics Management, Small Business Program Office, may not conduct or sponsor, and the respondent is not required to respond to any information collection that has been extended, revised, or implemented on or after January 31, 2024, unless it displays a currently valid Office of Management and Budget (OMB) control number.
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, NIH has submitted to OMB a request for review and approval of the information collection listed below.
The PEI is a comprehensive plan to increase the capacity of HBCUs as they pursue funding opportunities at the NIH. The PEI provides a platform to increase transparency between HBCUs and the NIH by promoting outreach events and training opportunities and providing technical assistance. Currently, there are six HBCU participants and each selected a minimum of one small business teaming partner to pursue NIH funding opportunities with.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 883.
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP).
The date of June 6, 2024 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472,
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Federal Emergency Management Agency; Department of Homeland Security.
Notice; correction.
On October 12, 2022, FEMA published in the
Comments are to be submitted on or before April 29, 2024.
The Preliminary Flood Insurance Rate Map (FIRM), and where applicable, the Flood Insurance Study (FIS) report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
You may submit comments, identified by Docket No. FEMA-B-2275, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed in the table below, in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP may only be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The communities affected by the flood hazard determinations are provided in the table below. Any request for reconsideration of the revised flood hazard determinations shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations will also be considered before the FIRM and FIS report are made final.
In the proposed flood hazard determination notice published at 87 FR 61613 in the October 12, 2022, issue of the
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
Comments are to be submitted on or before April 29, 2024.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-2403, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
Comments are to be submitted on or before April 29, 2024.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-2404, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
U.S. Immigration and Customs Enforcement; Department of Homeland Security.
Notice.
This notice announces that the Secretary of Homeland Security (Secretary) is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Syria, regardless of country of birth (or individuals having no nationality who last habitually resided in Syria), and who are experiencing severe economic hardship as a direct result of the current armed conflict and current humanitarian crisis in Syria. The Secretary is taking action to provide relief to these Syrian students who are in lawful F-1 nonimmigrant student status, so the students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain their F-1 nonimmigrant student status. The U.S. Department of Homeland Security (DHS) will deem an F-1 nonimmigrant student granted employment authorization by means of this notice to be engaged in a “full course of study” for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement described in this notice.
This action is effective April 1, 2024, through September 30, 2025.
Sharon Snyder, Unit Chief, Policy and Response Unit, Student and Exchange Visitor Program, MS 5600, U.S. Immigration and Customs Enforcement, 500 12th Street SW, Washington, DC 20536-5600; email:
The Secretary is exercising authority under 8 CFR 214.2(f)(9) to temporarily suspend the applicability of certain requirements governing on-campus and off-campus employment for F-1 nonimmigrant students whose country of citizenship is Syria regardless of country of birth (or individuals having no nationality who last habitually resided in Syria), who are present in the United States in lawful F-1 nonimmigrant student status on the date of publication of this notice, and who are experiencing severe economic hardship as a direct result of the current armed conflict and current humanitarian crisis in Syria. The original notice, which applied to F-1 nonimmigrant students who met certain criteria, including having been lawfully present in the United States in F-1 nonimmigrant status on April 3, 2012, was effective from April 3, 2012, through October 3, 2013.
This notice applies exclusively to F-1 nonimmigrant students who meet all of the following conditions:
(1) Are a citizen of Syria regardless of country of birth (or an individual having no nationality who last habitually resided in Syria);
(2) Were lawfully present in the United States on the date of publication of this notice in F-1 nonimmigrant status under section 101(a)(15)(F)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(F)(i);
(3) Are enrolled in an academic institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment for F-1 nonimmigrant students;
(4) Are currently maintaining F-1 nonimmigrant status; and
(5) Are experiencing severe economic hardship as a direct result of the current armed conflict and current humanitarian crisis in Syria.
This notice applies to F-1 nonimmigrant students in an approved private school in kindergarten through grade 12, public school grades 9 through 12, and undergraduate and graduate education. An F-1 nonimmigrant student covered by this notice who transfers to another SEVP-certified academic institution remains eligible for the relief provided by means of this notice.
DHS is taking action to provide relief to Syrian F-1 nonimmigrant students experiencing severe economic hardship due to the current armed conflict and current humanitarian crisis in Syria. Based on its review of country conditions in Syria and input received from the U.S. Department of State (DOS), DHS is taking action to allow eligible F-1 nonimmigrant students from Syria to request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F-1 nonimmigrant student status.
Increased violent conflict poses substantial risk to Syrians throughout
The Syrian economy has been devastated by years of conflict, the February 6, 2023 earthquake, the financial crisis in Lebanon, and government corruption.
Security conditions remain dire for civilians in Syria and “[i]n 2022, Syria remain[ed] the third least peaceful country in the world according to the Global Peace Index (GPI). Ongoing hostilities, including artillery shelling, air strikes and land mines, continue to threaten the lives of civilians and hamper humanitarian activities.”
Northwest Syria continues to see an uptick in conflict with recent ongoing regime and Russian airstrikes and retaliatory attacks. Civilians and civilian infrastructure are commonly the subjects of artillery shelling, especially in Idlib governorate. Additionally, civilians in the northwest Syria continue to face harm, especially those who run afoul of armed groups like U.S.-designated terrorist organization Hay'at Tahrir al-Sham (HTS) in Idlib.
Continued conflict persists in government-controlled regions of Syria, with the Syrian Arab Air Force conducting frequent airstrikes. Central Syria also suffers from a power vacuum despite being nominally under government control. ISIS has exploited the minimal government presence in the area, conducting multiple attacks against civilians in the spring of 2023, including a massacre of 53 people on February 17, 2023.
As the civil conflict in Syria continues into its 13th year, the number of people in Syria in need of humanitarian assistance has increased from 14.6 to 15.3 million since 2022.
Additionally, northern Syria was subject to a deadly earthquake in February 2023, in which 8,476 people lost their lives.
As of December 8, 2023, approximately 349 F-1 nonimmigrant students from Syria are enrolled at SEVP-certified academic institutions in the United States. Given the extent of the current armed conflict and current humanitarian crisis in Syria, affected students whose primary means of financial support comes from Syria may need to be exempt from the normal student employment requirements to
Undergraduate F-1 nonimmigrant students who receive on-campus or off-campus employment authorization under this notice must remain registered for a minimum of six semester or quarter hours of instruction per academic term. Undergraduate F-1 nonimmigrant students enrolled in a term of different duration must register for at least one half of the credit hours normally required under a “full course of study.”
In addition, an F-1 nonimmigrant student (either undergraduate or graduate) granted on-campus or off-campus employment authorization under this notice may count up to the equivalent of one class or three credits per session, term, semester, trimester, or quarter of online or distance education toward satisfying this minimum course load requirement, unless their course of study is in an English language study program.
Yes. An F-1 nonimmigrant student who is a Syrian citizen, regardless of country of birth (or an individual having no nationality who last habitually resided in Syria), who already has on-campus or off-campus employment authorization and is otherwise eligible may benefit under this notice, which suspends certain regulatory requirements relating to the minimum course load requirement under 8 CFR 214.2(f)(6)(i) and certain employment eligibility requirements under 8 CFR 214.2(f)(9). Such an eligible F-1 nonimmigrant student may benefit without having to apply for a new Form I-766, Employment Authorization Document (EAD). To benefit from this notice, the F-1 nonimmigrant student must request that their designated school official (DSO) enter the following statement in the remarks field of the student's Student and Exchange Visitor Information System (SEVIS) record, which the student's Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status, will reflect:
Approved for more than 20 hours per week of [DSO must insert “on-campus” or “off-campus,” depending upon the type of employment authorization the student already has] employment authorization and reduced course load under the Special Student Relief authorization from [DSO must insert the beginning date of the notice or the beginning date of the student's employment, whichever date is later] until [DSO must insert either the student's program end date, the current EAD expiration date (if the student is currently authorized for off-campus employment), or the end date of this notice, whichever date comes first].
No. DHS will deem an F-1 nonimmigrant student who receives and comports with the employment authorization permitted under this notice to be engaged in a “full course of study”
No. An F-2 spouse or minor child of an F-1 nonimmigrant student is not authorized to work in the United States and, therefore, may not accept employment under the F-2 nonimmigrant status, consistent with 8 CFR 214.2(f)(15)(i).
No. The suspension of the applicability of the standard regulatory requirements only applies to certain F-1 nonimmigrant students who meet the following conditions:
(1) Are a citizen of Syria regardless of country of birth (or an individual having no nationality who last habitually resided in Syria);
(2) Were lawfully present in the United States on the date of publication of this notice in F-1 nonimmigrant status, under section 101(a)(15)(F)(i) of the INA, 8 U.S.C. 1101(a)(15)(F)(i);
(3) Are enrolled in an academic institution that is SEVP-certified for enrollment of F-1 nonimmigrant students;
(4) Are maintaining F-1 nonimmigrant status; and
(5) Are experiencing severe economic hardship as a direct result of the current armed conflict and current humanitarian crisis in Syria.
An F-1 nonimmigrant student who does not meet all these requirements is ineligible for the suspension of the applicability of the standard regulatory requirements (even if experiencing severe economic hardship as a direct result of the current armed conflict and current humanitarian crisis in Syria).
Yes. This notice applies to such an F-1 nonimmigrant student, but only if the DSO has properly notated the student's SEVIS record, which will then appear on the student's Form I-20. The normal rules for visa issuance remain applicable to a nonimmigrant who needs to apply for a new F-1 visa to continue an educational program in the United States.
Yes. However, this notice does not by itself reduce the required course load for F-1 nonimmigrant students from Syria enrolled in kindergarten through grade 12 at a private school, or grades 9 through 12 at a public high school. Such students must maintain the minimum number of hours of class attendance per week prescribed by the academic institution for normal progress toward graduation, as required under 8CFR214.2(f)(6)(i)(E). The suspension of certain regulatory requirements related to employment through this notice is applicable to all eligible F-1 nonimmigrant students regardless of educational level. Eligible F-1 nonimmigrant students from Syria enrolled in an elementary school, middle school, or high school may benefit from the suspension of the requirement in 8 CFR 214.2(f)(9)(i) that limits on-campus employment to 20 hours per week while school is in session.
Yes. For an F-1 nonimmigrant student covered in this notice, the Secretary is suspending the applicability of the requirement in 8 CFR 214.2(f)(9)(i) that limits an F-1 nonimmigrant student's on-campus employment to 20 hours per week while school is in session. An eligible F-1 nonimmigrant student has authorization to work more than 20 hours per week while school is in session if the DSO has entered the following statement in the remarks field of the student's SEVIS record, which will be reflected on the student's Form I-20:
Approved for more than 20 hours per week of on-campus employment and reduced course load, under the Special Student Relief authorization from [DSO must insert the beginning date of this notice or the beginning date of the student's employment, whichever date is later] until [DSO must insert the student's program end date or the end date of this notice, whichever date comes first].
To obtain on-campus employment authorization, the F-1 nonimmigrant student must demonstrate to the DSO that the employment is necessary to avoid severe economic hardship directly resulting from the current armed conflict and current humanitarian crisis in Syria. An F-1 nonimmigrant student authorized by the DSO to engage in on-campus employment by means of this notice does not need to file any applications with U.S. Citizenship and Immigration Services (USCIS). The standard rules permitting full-time on-campus employment when school is not in session or during school vacations apply, as described in 8 CFR 214.2(f)(9)(i).
Yes. DHS will deem an F-1 nonimmigrant student who receives on-campus employment authorization under this notice to be engaged in a “full course of study”
For an F-1 nonimmigrant student covered by this notice, as provided under 8 CFR 214.2(f)(9)(ii)(A), the Secretary is suspending the following regulatory requirements relating to off-campus employment:
(a) The requirement that a student must have been in F-1 nonimmigrant student status for one full academic year to be eligible for off-campus employment;
(b) The requirement that an F-1 nonimmigrant student must demonstrate that acceptance of employment will not interfere with the student's carrying a full course of study;
(c) The requirement that limits an F-1 nonimmigrant student's employment authorization to no more than 20 hours per week of off-campus employment while the school is in session; and
(d) The requirement that the student demonstrate that employment under 8 CFR 214.2(f)(9)(i) is unavailable or otherwise insufficient to meet the needs that have arisen as a result of the unforeseen circumstances.
Yes. DHS will deem an F-1 nonimmigrant student who receives off-campus employment authorization by means of this notice to be engaged in a “full course of study”
An F-1 nonimmigrant student must file a Form I-765, Application for Employment Authorization, with USCIS to apply for off-campus employment authorization based on severe economic hardship directly resulting from the current armed conflict and current humanitarian crisis in Syria.
(1) This employment is necessary to avoid severe economic hardship; and
(2) The hardship is a direct result of the current armed conflict and current humanitarian crisis in Syria.
If the DSO agrees that the F-1 nonimmigrant student is entitled to receive such employment authorization, the DSO must recommend application approval to USCIS by entering the following statement in the remarks field of the student's SEVIS record, which will then appear on that student's Form I-20:
Recommended for off-campus employment authorization in excess of 20 hours per week and reduced course load under the Special Student Relief authorization from the date of the USCIS authorization noted on Form I-766 until [DSO must insert the program end date or the end date of this notice, whichever date comes first].
The F-1 nonimmigrant student must then file the properly endorsed Form I-20 and Form I-765 according to the instructions for the Form I-765. The F-1 nonimmigrant student may begin working off campus only upon receipt of the EAD from USCIS.
(a) The F-1 nonimmigrant student is in good academic standing and is carrying a “full course of study”
(b) The F-1 nonimmigrant student is a citizen of Syria, regardless of country of birth (or an individual having no nationality who last habitually resided in Syria), and is experiencing severe economic hardship as a direct result of the current armed conflict and current humanitarian crisis in Syria, as documented on the Form I-20;
(c) The F-1 nonimmigrant student has confirmed that the student will comply with the reduced course load requirements of this notice and register for the duration of the authorized employment for a minimum of six semester or quarter hours of instruction per academic term if at the undergraduate level, or for a minimum of three semester or quarter hours of instruction per academic term if the student is at the graduate level;
(d) The off-campus employment is necessary to alleviate severe economic hardship to the individual as a direct result of the current armed conflict and current humanitarian crisis in Syria.
(a) Ensure that the application package includes the following documents:
(1) A completed Form I-765 with all applicable supporting evidence;
(2) The required fee or properly documented fee waiver request as defined in 8 CFR 103.7(c) (Oct. 1, 2020); and
(3) A signed and dated copy of the student's Form I-20 with the appropriate DSO recommendation, as previously described in this notice; and
(b) Send the application in an envelope which is clearly marked on the front of the envelope, bottom right-hand side, with the phrase “SPECIAL STUDENT RELIEF.”
If USCIS approves the student's Form I-765, USCIS will send the student a Form I-766 EAD as evidence of employment authorization. The EAD will contain an expiration date that does not exceed the end of the granted temporary relief.
Yes. An F-1 nonimmigrant student who has not yet applied for TPS or for other relief that reduces the student's course load per term and permits an increased number of work hours per week, such as Special Student Relief,
Under the first option, the F-1 nonimmigrant student may apply for TPS according to the instructions in the USCIS notice designating Syria for TPS elsewhere in this issue of the
Under the second option, the F-1 nonimmigrant student may apply for an EAD under Special Student Relief by filing Form I-765 with the location
The F-1 nonimmigrant student must maintain normal course load requirements for a “full course of study”
There is no further application process with USCIS if a student has been approved for a TPS-related EAD. The F-1 nonimmigrant student must demonstrate and provide documentation to the DSO of the direct economic hardship resulting from the current armed conflict and current humanitarian crisis in Syria. The DSO will then verify and update the student's record in SEVIS to enable the F-1 nonimmigrant student with TPS to reduce the course load without any further action or application. No other EAD needs to be issued for the F-1 nonimmigrant student to have employment authorization.
Yes. Regulations permit certain students who fall out of F-1 nonimmigrant student status to apply for reinstatement.
This notice grants temporary relief until September 30, 2025,
An F-1 nonimmigrant student seeking off-campus employment authorization due to severe economic hardship resulting from the current armed conflict and current humanitarian crisis in Syria must demonstrate to the DSO that this employment is necessary to avoid severe economic hardship. A DSO who agrees that a nonimmigrant student should receive such employment authorization must recommend an application approval to USCIS by entering information in the remarks field of the student's SEVIS record. The authority to collect this information is in the SEVIS collection of information currently approved by the Office of Management and Budget (OMB) under OMB Control Number 1653-0038.
This notice also allows an eligible F-1 nonimmigrant student to request employment authorization, work an increased number of hours while the academic institution is in session, and reduce their course load while continuing to maintain F-1 nonimmigrant student status.
To apply for employment authorization, certain F-1 nonimmigrant students must complete and submit a currently approved Form I-765 according to the instructions on the form. OMB has previously approved the collection of information contained on the current Form I-765, consistent with the PRA (OMB Control Number 1615-0040). Although there will be a slight increase in the number of Form I-765 filings because of this notice, the number of filings currently contained in the OMB annual inventory for Form I-765 is sufficient to cover the additional filings. Accordingly, there is no further action required under the PRA.
U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS).
Notice of Temporary Protected Status (TPS) extension and redesignation.
Through this notice, the Department of Homeland Security
Extension and Redesignation of the Designation of Syria for TPS begins on April 1, 2024, and will remain in effect for 18 months. For registration instructions, see the Registration Information section below.
• You may contact Rená Cutlip-Mason, Chief, Humanitarian Affairs Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by mail at 5900 Capital Gateway Drive, Camp Springs, MD 20746, or by phone at 240-721-3000.
• For more information on TPS, including guidance on the registration process and additional information on eligibility, please visit the USCIS TPS web page at
• If you have additional questions about TPS, please visit
• Applicants seeking information about the status of their individual cases may check Case Status Online, available on the USCIS website at
• You can also find more information at local USCIS offices after this notice is published.
Through this notice, DHS sets forth procedures necessary for nationals of Syria (or individuals having no nationality who last habitually resided in Syria) to (1) re-register for TPS and apply to renew their EAD with USCIS or (2) submit an initial registration application under the redesignation and apply for an EAD.
Re-registration is limited to individuals who have previously registered for TPS under the prior designation of Syria and whose applications have been granted. If you do not re-register properly within the 60-day re-registration period, USCIS may withdraw your TPS following appropriate procedures.
For individuals who have already been granted TPS under Syria's designation, the 60-day re-registration period runs January 29, 2024, through March 29, 2024. USCIS will issue new EADs with a September 30, 2025, expiration date to eligible Syrian TPS beneficiaries who timely re-register and apply for EADs. Given the time frames involved with processing TPS re-registration applications, DHS recognizes that not all re-registrants may receive a new EAD before their current EAD expires. Accordingly, through this
Individuals who have a Syria TPS application (Form I-821) or Application for Employment Authorization (Form I-765) that was still pending as of January 29, 2024, do not need to file either application again. If USCIS approves an
Under the redesignation, individuals who currently do not have TPS may submit an initial application during the initial registration period that runs from January 29, 2024 through the full length of the redesignation period ending September 30, 2025. In addition to demonstrating continuous residence in the United States since January 25, 2024, and meeting other eligibility criteria, initial applicants for TPS under this redesignation must demonstrate that they have been continuously physically present in the United States since April 1, 2024,
• TPS is a temporary immigration status granted to eligible nationals of a foreign state designated for TPS under the INA, or to eligible individuals without nationality who last habitually resided in the designated foreign state, regardless of their country of birth.
• During the TPS designation period, TPS beneficiaries are eligible to remain in the United States, may not be removed, and are authorized to obtain EADs if they continue to meet the requirements of TPS.
• TPS beneficiaries may also apply for and be granted travel authorization as a matter of DHS discretion.
• To qualify for TPS, beneficiaries must meet the eligibility standards at INA section 244(c)(1)-(2), 8 U.S.C. 1254a(c)(1)-(2).
• When the Secretary terminates a foreign state's TPS designation, beneficiaries return to one of the following:
○ The same immigration status or category that they maintained before TPS, if any (unless that status or category has since expired or terminated); or
○ Any other lawfully obtained immigration status or category they received while registered for TPS, if it is still valid beyond the date their TPS terminates.
Syria was initially designated for TPS on March 29, 2012, on the basis of extraordinary and temporary conditions in Syria that prevented nationals of Syria from returning in safety.
Section 244(b)(1) of the INA, 8 U.S.C. 1254a(b)(1), authorizes the Secretary, after consultation with appropriate agencies of the U.S. Government, to designate a foreign state (or part thereof) for TPS if the Secretary determines that certain country conditions exist.
At least 60 days before the expiration of a foreign state's TPS designation or extension, the Secretary, after consultation with appropriate U.S. Government agencies, must review the conditions in the foreign state designated for TPS to determine whether they continue to meet the conditions for the TPS designation.
In addition to extending an existing TPS designation, the Secretary, after consultation with appropriate Government agencies, may redesignate a country (or part thereof) for TPS.
When the Secretary designates or redesignates a country for TPS, the Secretary also has the discretion to establish the date from which TPS applicants must demonstrate that they have been “continuously resid[ing]” in the United States.
DHS has reviewed country conditions in Syria. Based on the review, including input received from DOS and other U.S. Government agencies, the Secretary has determined that an 18-month TPS extension is warranted because the ongoing armed conflict and extraordinary and temporary conditions supporting Syria's TPS designation remain. The Secretary has further determined that redesignating Syria for TPS under INA section 244(b)(3)(C), 8 U.S.C. 1254a(b)(3)(C) is warranted and is changing the continuous residence and continuous physical presence dates that applicants must meet to be eligible for TPS.
The ongoing civil war in Syria is in its thirteenth year and has involved large-scale destruction of infrastructure, widespread civilian casualties, and human rights abuses and violations. The humanitarian consequences are dire, including mass displacement of civilians, high levels of food insecurity, and limited access to healthcare and clean water. These impacts have been compounded by the February 6, 2023 earthquake, which resulted in the further destruction of infrastructure and has contributed to the further breakdown of the economy and strained an already overburdened healthcare system.
The armed conflict in Syria continues to include numerous local and international actors, such as the Syrian regime, foreign states, opposition groups, and terrorist groups, like ISIS.
The conflict and its levels of violence are regularly in flux. Ongoing hostilities in several parts of the country include “artillery shelling, air strikes and land mines, [and] continue to threaten the lives of civilians and hamper humanitarian activities.”
Since the conflict began, civilian casualty counts have varied among media sources and human rights groups, in part due to the large number of missing and forcibly disappeared Syrians. Human rights groups estimate more than 550,000 people have been
The Syrian regime and other armed actors continue to commit human rights abuses. There are documented reports of unjust killings, arbitrary arrests, enforced disappearances, forced displacements, seizures of land and properties, and rampant security instability that have “provided a ripe environment for many assassinations and bombings.”
Since 2022, the number of people in Syria in need of humanitarian assistance has increased by five percent to 15.3 million people, which is over two thirds of the population.
Food insecurity is of particular concern as the Syrian economy has been rapidly deteriorating.
The February 6, 2023 earthquake and subsequent aftershock that hit southern Turkey near the Syrian border also contributed to the worsening humanitarian situation and economic deterioration in Syria.
Over 15.3 million people in Syria need healthcare assistance, which is an
Access to clean water outside of northwest Syria continues to be a serious situation for many Syrians as 52 percent of Syrians lack access to clean water and must turn to unsafe alternatives, such as polluted rivers or unregulated private companies providing unclean water.
In February 2023, the earthquake exacerbated the health care system in northwest Syria, the area that saw most of the damage.
In summary, over a decade after the uprising that sparked the war, the Syrian conflict remains ongoing and detrimental impacts on the country continue. Armed actors continue to kill civilians and destroy vital civilian infrastructure, the economy is rapidly deteriorating, and Syrians cannot afford their basic needs, such as food and healthcare. Further, the lack of access to clean water has created a serious problem for those in most of the country. The February 2023 earthquake further complicated these issues.
Based on this review and after consultation with appropriate U.S. Government agencies, the Secretary has determined that:
• The conditions supporting Syria's designation for TPS continue to be met.
• There continues to be an ongoing armed conflict in Syria and, due to such conflict, requiring the return to Syria of Syrian nationals (or individuals having no nationality who last habitually resided in Syria) would pose a serious threat to their personal safety.
• There continue to be extraordinary and temporary conditions in Syria that prevent Syrian nationals (or individuals having no nationality who last habitually resided in Syria) from returning to Syria in safety, and it is not contrary to the national interest of the United States to permit Syrian TPS beneficiaries to remain in the United States temporarily.
• The designation of Syria for TPS should be extended for an 18-month period, beginning on April 1, 2024, and ending on September 30, 2025.
• Due to the conditions described above, Syria should be simultaneously extended and redesignated for TPS beginning on April 1, 2024, and ending on September 30, 2025.
• For the redesignation, the Secretary has determined that TPS applicants must demonstrate that they have continuously resided in the United States since January 25, 2024.
• Initial TPS applicants under the redesignation must demonstrate that they have been continuously physically present in the United States since April 1, 2024, the effective date of the redesignation of Syria for TPS.
• There are approximately 6,200 current Syria TPS beneficiaries who are eligible to re-register for TPS under the extension.
• It is estimated that approximately 2,500 additional individuals may be eligible for TPS under the redesignation of Syria. This population includes Syrian nationals in the United States in nonimmigrant status or without immigration status.
By the authority vested in me as Secretary under INA section 244, 8 U.S.C. 1254a, I have determined, after consultation with the appropriate U.S. Government agencies, the statutory conditions supporting Syria's designation for TPS on the basis of ongoing armed conflict and extraordinary and temporary conditions are met and it is not contrary to the national interest of the United States to allow Syrian TPS beneficiaries to remain in the United States temporarily.
To register or re-register for TPS based on the designation of Syria, you must submit a Form I-821, Application for Temporary Protected Status. If you are submitting an initial TPS application, you must pay the application fee for Form I-821 (or request a fee waiver, which you may submit on Form I-912, Request for Fee Waiver). If you are filing an application to re-register for TPS, you do not need to pay the application fee. Whether you are registering as an initial applicant or re-registering, you may be required to pay the biometric services fee. If you can demonstrate an inability to pay the biometric services fee, you may request to have the fee waived. Please see additional information under the “Biometric Services Fee” section of this notice.
TPS beneficiaries are eligible for an Employment Authorization Document (EAD), which proves their authorization to work in the United States. You are not required to submit Form I-765, Application for Employment Authorization, or have an EAD to be granted TPS, but see below for more information if you want an EAD to use as proof that you can work in the United States.
Individuals who have a Syria TPS application (Form I-821) that was still pending as of January 29, 2024, do not need to file the application again. If USCIS approves an individual's Form I-821, USCIS will grant the individual TPS through September 30, 2025.
For more information on the application forms and fees for TPS, please visit the USCIS TPS web page at
Everyone must provide their employer with documentation showing that they have the legal right to work in the United States. TPS beneficiaries are eligible to obtain an EAD, which proves their legal right to work. If you want to obtain an EAD, you must file Form I-765 and pay the Form I-765 fee (or request a fee waiver, which you may submit on Form I-912, Request for Fee Waiver). TPS applicants may file this form with their TPS application, or separately later, if their TPS application is still pending or has been approved. Beneficiaries with a Syria TPS-related Form I-765 that was still pending as of January 29, 2024 do not need to file the application again. If USCIS approves a pending TPS-related Form I-765, USCIS will issue the individual a new EAD that will be valid through September 30, 2025.
If USCIS denies your fee waiver request, you can resubmit your TPS application. The fee waiver denial notice will contain specific instructions about resubmitting your application.
You may file Form I-821 and related requests for EADs online or by mail. However, if you request a fee waiver, you must submit your application by mail. When filing a TPS application, applicants may request an EAD by submitting a completed Form I-765 with their Form I-821.
If you were granted TPS by an immigration judge or the Board of Immigration Appeals (BIA) and you wish to request an EAD, please file online or mail your Form I-765 to the appropriate address in Table 1. If you file online, please include the fee. If you file by mail, please include the fee or fee waiver request. When you request an EAD based on an immigration judge or BIA grant of TPS, please include with your application a copy of the order from the immigration judge or BIA granting you TPS. This will help us verify your grant of TPS and process your application.
The filing instructions on Form I-821 list all the documents needed to establish eligibility for TPS. You may also find information on the acceptable documentation and other requirements for applying (also called, registering) for TPS on the USCIS website at
TPS beneficiaries may also apply for and be granted travel authorization as a matter of discretion. You must file for travel authorization if you wish to travel outside of the United States. If granted, travel authorization gives you permission to leave the United States and return during a specific period. To request travel authorization, you must file Form I-131, Application for Travel Document, available at
• Select Item Number 1.d. in Part 2 on the Form I-131; and
• Submit the fee for Form I-131, or request a fee waiver, which you may submit on Form I-912, Request for Fee Waiver.
If you are filing Form I-131 together with Form I-821, send your forms to the address listed in Table 1. If you are filing Form I-131 separately based on a pending or approved Form I-821, send your form to the address listed in Table 2 and include a copy of Form I-797 for the approved or pending Form I-821.
Biometrics (such as fingerprints) are required for all applicants 14 years of age and older. Those applicants must submit a biometric services fee. As previously stated, if you are unable to pay the biometric services fee, you may request a fee waiver, which you may submit on Form I-912, Request for Fee Waiver. For more information on the application forms and fees for TPS, please visit the USCIS TPS web page at
To get case status information about your TPS application, as well as the status of your TPS-based EAD request, you can check Case Status Online at uscis.gov or visit the USCIS Contact Center at
Yes. Regardless of your country of birth, if you currently have a Syria TPS-based EAD with the notation A-12 or C-19 under Category and a Card Expires date of March 31, 2024, September 30, 2022, or March 31, 2021, this
You can find the Lists of Acceptable Documents on Form I-9, Employment Eligibility Verification, as well as the Acceptable Documents web page at
You may present any document from List A (which provides evidence of both identity and employment authorization) or one document from List B (which provides evidence of your identity) together with one document from List C (which provides evidence of employment authorization), or you may present an acceptable receipt as described in the Form I-9 Instructions. Employers may not reject a document based on a future expiration date. You can find additional information about Form I-9 on the I-9 Central web page at
Even though we have automatically extended your EAD, your employer is required by law to ask you about your continued employment authorization. Your employer may need to re-examine your automatically extended EAD to check the Card Expires date and Category code if your employer did not keep a copy of your EAD when you initially presented it. Once your employer has reviewed the Card Expires date and Category code, they should update the EAD expiration date in Section 2 of Form I-9. See the section “What updates should my current employer make to Form I-9 if my EAD has been automatically extended?” of this
Your employer may not specify which List A or List C document you must present and cannot reject an acceptable receipt.
Yes, if you are eligible for TPS, you can obtain a new TPS-based EAD, even if you have an EAD or work authorization based on another immigration status. If you want to obtain a new TPS-based EAD valid through September 30, 2025, then you must file Form I-765, Application for Employment Authorization, and pay the associated fee (unless USCIS grants your fee waiver request).
No. When completing Form I-9, employers must accept any documentation you choose to present from the Form I-9 Lists of Acceptable Documents that reasonably appears to be genuine and that relates to you, or an acceptable List A, List B, or List C receipt. Employers may not request other documentation, such as proof of Syrian citizenship or proof of registration for TPS when completing Form I-9 for new hires or reverifying the employment authorization of current employees. If you present an EAD that USCIS has automatically extended, employers should accept it as a valid List A document if the EAD reasonably appears to be genuine and to relate to you. Refer to the “Note to Employees” section of this
When using an automatically extended EAD to complete Form I-9 for a new job before April 1, 2025:
1. For Section 1, you should:
a. Check “A noncitizen authorized to work until” and enter March 31, 2025, as the “expiration date”; and
b. Enter your USCIS number or A-Number where indicated. (Your EAD or other document from DHS will have your USCIS number or A-Number printed on it; the USCIS number is the same as your A-Number without the A prefix.)
2. For Section 2, employers should:
a. Determine whether the EAD is auto-extended by ensuring it is in category A-12 or C-19 and has a Card Expires date of March 31, 2024, September 30, 2022 or March 31, 2021;
b. Write in the document title;
c. Enter the issuing authority;
d. Provide the document number; and
e. Write March 31, 2025, as the expiration date.
Before the start of work on April 1, 2025, employers must reverify the employee's employment authorization on Form I-9.
If you presented a TPS-related EAD that was valid when you first started your job and USCIS has now automatically extended your EAD, your employer may need to re-examine your current EAD if they do not have a copy of the EAD on file. Your employer should determine whether your EAD is automatically extended by ensuring that it contains Category A-12 or C-19 and has a Card Expires date of March 31, 2024, September 30, 2022, or March 31, 2021. Your employer may not rely on the country of birth listed on the card to determine whether you are eligible for this extension.
If your employer determines that USCIS has automatically extended your EAD, your employer should update Section 2 of your previously completed Form I-9 as follows:
1. Write EAD EXT and March 31, 2025, as the last day of the automatic extension in the Additional Information field; and
2. Initial and date the correction.
This is not considered a reverification. Employers do not reverify the employee until either the automatic extension has ended, or the employee presents a new document to show continued employment authorization, whichever is sooner. By April 1, 2025, when the employee's automatically extended EAD has expired, employers are required by law to reverify the employee's employment authorization on Form I-9.
Employers may create a case in E-Verify for a new employee by entering the number from the Document Number field on Form I-9 into the document number field in E-Verify. Employers should enter March 31, 2025, as the expiration date for an EAD that has been extended under this
E-Verify automated the verification process for TPS-related EADs that are automatically extended. If you have employees who provided a TPS-related EAD when they first started working for you, you will receive a “Work Authorization Documents Expiring” case alert when the auto-extension period for this EAD is about to expire. Before this employee starts work on April 1, 2025, you must reverify their employment authorization on Form I-9. Employers may not use E-Verify for reverification.
Employers are reminded that the laws requiring proper employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This
For general questions about the employment eligibility verification process, employees may call USCIS at 888-897-7781 (TTY 877-875-6028) or email USCIS at
To comply with the law, employers must accept any document or combination of documents from the Lists of Acceptable Documents if the documentation reasonably appears to be genuine and to relate to the employee, or an acceptable List A, List B, or List C receipt as described in the Form I-9 Instructions. Employers may not require extra or additional documentation other than what is required to complete Form I-9. Further, employers participating in E-Verify who receive an E-Verify case result of “Tentative Nonconfirmation” (mismatch) must promptly inform employees of the mismatch and give these employees an opportunity to resolve the mismatch. A mismatch means that the information entered into E-Verify from Form I-9 differs from records available to DHS.
Employers may not terminate, suspend, delay training, withhold or lower pay, or take any adverse action against an employee because of a mismatch while the case is still pending with E-Verify. A Final Nonconfirmation (FNC) case result is received when E-Verify cannot confirm an employee's employment eligibility. An employer may terminate employment based on a case result of FNC. Work-authorized employees who receive an FNC may call USCIS for assistance at 888-897-7781 (TTY 877-875-6028). For more information about E-Verify-related discrimination or to report an employer for discrimination in the E-Verify process based on citizenship, immigration status, or national origin, contact IER's Worker Hotline at 800-255-7688 (TTY 800-237-2515). Additional information about proper nondiscriminatory Form I-9 and E-Verify procedures is available on the IER website at
For Federal purposes, if you present an automatically extended EAD referenced in this
• Your current EAD with a TPS category code of A-12 or C-19, even if your country of birth noted on the EAD does not reflect the TPS-designated country of Syria;
• Your Form I-94, Arrival/Departure Record;
• Your Form I-797, Notice of Action, reflecting approval of your Form I-765; or
• Form I-797 or Form I-797C, Notice of Action, reflecting approval or receipt of a past or current Form I-821, if you received one from USCIS.
Check with the government agency requesting documentation about which document(s) the agency will accept. Some state and local government agencies use the SAVE program to confirm the current immigration status of applicants for public benefits.
While SAVE can verify that an individual has TPS, each agency's procedures govern whether they will accept an unexpired EAD, Form I-797, Form I-797C, or Form I-94, Arrival/Departure Record. If an agency accepts the type of TPS-related document you present, such as an EAD, the agency should accept your automatically extended EAD, regardless of the country of birth listed on the EAD. It may assist the agency if you:
a. Give the agency a copy of the relevant
b. Explain that SAVE will be able to verify the continuation of your TPS using this information; and
c. Ask the agency to initiate a SAVE query with your information and follow through with additional verification steps, if necessary, to get a final SAVE response verifying your TPS.
You can also ask the agency to look for SAVE notices or contact SAVE if they have any questions about your immigration status or automatic extension of TPS-related documentation. In most cases, SAVE provides an automated electronic response to benefit-granting agencies within seconds, but occasionally verification can be delayed.
You can check the status of your SAVE verification by using CaseCheck at
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the approval of the Tribal-State Compact between the Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation, Montana and the State of Montana.
The compact takes effect on January 29, 2024.
Ms. Paula L. Hart, Director, Office of Indian Gaming, Office of the Assistant Secretary—Indian Affairs, Washington, DC 20240,
Under section 11 of the Indian Gaming Regulatory Act (IGRA), Public Law 100-497, 25 U.S.C. 2701
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the approval of the Amendment to the Tribal-State Compact for the Conduct of Class III Gaming between the Coushatta Tribe of Louisiana (Tribe) and the State of Louisiana (State).
The amendment takes effect on January 29, 2024.
Ms. Paula L. Hart, Director, Office of Indian Gaming, Office of the Assistant Secretary—Indian Affairs, Washington, DC 20240,
Under section 11 of the Indian Gaming Regulatory Act (IGRA), Public Law 100-497, 25 U.S.C. 2701
Bureau of Indian Affairs, Interior.
Notice of reservation proclamation.
This notice informs the public that the Assistant Secretary—Indian Affairs proclaimed approximately 1483.03 acres, more or less, as an addition to the reservation of Pascua Yaqui Tribe.
This proclamation was made on January 23, 2024.
Ms. Carla Clark, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Box #44, Albuquerque, New Mexico 87104,
This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by part 209 of the Departmental Manual.
A proclamation is issued according to the Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 5110) for the lands described below. The lands are proclaimed to be the Pascua Yaqui Tribe Reservation for Pascua Yaqui Tribe in Pima County, Arizona.
Portion of the South Half of Section 24, Township 15 South, Range 12 East, Gila and Salt River Base and Meridian, Pima County, Arizona, described as follows: The Northeast Quarter of the Southwest Quarter; Except the Southerly 4.19 feet thereof;
Portion of the South Half of Section 24, Township 15 South, Range 12 East, Gila and Salt River Base and Meridian, Pima County, Arizona, described as follows: The Northwest Quarter of the Southeast Quarter;
All of Government Lot Three (3), in Section 24, Township 15 South, Range 12 East, Gila and Salt River Base and Meridian, Pima County, Arizona.
Lots 1 through 8, the East Half of the Northeast Quarter, the Southwest Quarter of the Northeast Quarter, the Northeast Quarter of the Southeast Quarter, the East Half of the Northwest Quarter of the Southeast Quarter, the Southwest Quarter of the Northwest Quarter of the Southeast Quarter, the North Half of the Southeast Quarter of the Southeast Quarter, and the Southeast Quarter of the Southeast Quarter of the Southeast Quarter of Section 14, Township 15 South, Range 12 East, Gila and Salt River Base and Meridian, Pima County Arizona.
The West Half of the Southeast Quarter and the Southwest Quarter of Section 24, Township 15 South, Range 12 East, Gila and Salt River Base and Meridian, Pima County, Arizona.
The South Half of the Southeast Quarter of Section 23, Township 15 South, Range 12 East, Gila and Salt River Base and Meridian, Pima County, Arizona.
Lots 2 and 4, West Half of Southeast Quarter, Section 13, Township 15 South, Range 12 East, Gila and Salt River Base and Meridian, Pima County, Arizona.
The Northwest Quarter of the Northwest Quarter, the North half of the Northeast Quarter of the Northwest Quarter, and the Southwest Quarter of the Northeast Quarter of the Northwest Quarter of Section 24, Township 15 South, Range 12 East of the Gila and Salt River Base and Meridian, Pima County, Arizona.
Lots 2 and 45 through 76, Section 19, Township 15 South, Range 13 East, Gila and Salt River Base and Meridian, Pima County, Arizona.
SW
NW
Blocks 20, 22, 23, 24, 26, 27, 28, 29 and 30, Master Block Plat of Star Valley, of Pima County, Arizona, according to the plat of record in the office of the County Recorder in Book 56 of Maps and Plats, page 55.
West Half of the Northeast Quarter of the Northwest Quarter and the Northwest Quarter of the Northwest Quarter of Sections 13, Township 15 South Range 12 East, Gila and Salt River Base and Meridian, Pima County, Arizona.
Lot 1 of Section 19, Township 15 South, Range 13 East, Gila and Salt River Base and Meridian, Pima County, Arizona.
The above-described lands contain a total of 1483.03 acres, more or less, which are subject to all valid rights, reservations, rights-of-way, and easements of record.
This proclamation does not affect title to the lands described above, nor does it affect any valid existing easements for public roads, highways, public utilities, railroads and pipelines, or any other valid easements or rights-of-way or reservations of record.
Bureau of Land Management, Interior.
Notice of official filing.
The plats of survey of lands described in this notice are scheduled to be officially filed in the Bureau of Land Management (BLM), California State Office, Sacramento, California, 30 calendar days from the date of this publication. The surveys, which were executed at the request of the Department of Defense, U.S. Forest Service, and Bureau of Land Management, are necessary for the management of these lands.
Unless there are protests to this action, the plats described in this notice will be filed on February 28, 2024.
You may submit written protests to the BLM California State Office, Cadastral Survey, 2800 Cottage Way, W-1623, Sacramento, CA 95825. A copy of the plats may be obtained from the BLM California State Office, Public Room, 2800 Cottage Way, W-1623, Sacramento, California 95825, upon required payment.
Joan Honda, Chief, Branch of Cadastral Survey, Bureau of Land Management, California State Office, 2800 Cottage Way, W-1623, Sacramento, California 95825; 1-916-978-4316;
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 for contacting Ms. Honda. 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.
The lands surveyed are:
A person or party who wishes to protest one or more plats of survey must file a written notice of protest within 30 calendar days from the date of this publication at the address listed in the
Before including your address, phone number, email address, or other personal identifying information in your notice of protest or statement of reasons, you should be aware that the documents you submit—including your personal identifying information—may be made publicly available at any time. While you can ask the BLM to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
February 6, 2023 at 11:00 a.m.
Room 101, 500 E Street SW, Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agendas for future meetings: none.
2. Minutes.
3. Ratification List.
4. Commission vote on Inv. Nos. 701-TA-685 and 731-TA-1599-1601 and 1603 (Final)(Tin Mill Products from Canada, China, Germany, and South Korea). The Commission currently is scheduled to complete and file its determinations and views of the Commission on February 20, 2024.
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Sharon Bellamy, Supervisory Hearings and Information Officer, 202-205-2000.
The Commission is holding the meeting under the Government in the Sunshine Act, 5 U.S.C. 552(b). In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting. Earlier notification of meeting was not possible.
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 19, 2023, under section 337 of the Tariff Act of 1930, as amended, on behalf of X1 Discovery, Inc. of Pasadena, California. A supplement was filed on January 4, 2023. The complaint, as supplemented, 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 computing devices utilizing indexed search systems and components thereof by reason of the infringement of certain claims of U.S. Patent No. 8,498,977 (“the '977 patent”) and U.S. Patent No. 8,856,093 (“the '093 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
Katherine Hiner, The Office of the Secretary, Dockets Services Division, U.S. International Trade Commission, telephone (202) 205-1802.
(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 1-2, 5, 7-11, 13, 15-16, 19 and 20 of the '977 patent and claims 1-7 and 11-19 of the '093 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 “desktop and laptop computers that run software for computer indexing and searching”;
(3) 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:
(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:
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations is not participating as a party to this investigation.
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.
Judicial Conference of the United States.
Advisory Committee on Criminal Rules; notice of open meeting.
The Advisory Committee on Criminal Rules will hold a meeting in a hybrid format with remote attendance options on April 18, 2024 in Washington, DC. The meeting is open to the public for observation but not participation. An agenda and supporting materials will be posted at least 7 days in advance of the meeting at:
April 18, 2024.
H. Thomas Byron III, Esq., Chief Counsel, Rules Committee Staff, Administrative Office of the U.S. Courts, Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE, Suite 7-300, Washington, DC 20544, Phone (202) 502-1820,
Judicial Conference of the United States.
Advisory Committee on Evidence Rules; notice of open meeting.
The Advisory Committee on Evidence Rules will hold a meeting in a hybrid format with remote attendance options on April 19, 2024 in Washington, DC. The meeting is open to the public for observation but not participation. An agenda and supporting materials will be posted at least 7 days in advance of the meeting at:
April 19, 2024.
H. Thomas Byron III, Esq., Chief Counsel, Rules Committee Staff, Administrative Office of the U.S. Courts, Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE, Suite 7-300, Washington, DC 20544, Phone (202) 502-1820,
Office of the Pardon Attorney, Department of Justice.
30-Day notice.
The Office of the Pardon Attorney, Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection was previously published in the
Comments are encouraged and will be accepted for 30 days until February 28, 2024.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact: Kira Gillespie, Deputy Pardon Attorney,
Written comments and recommendations for this information collection should be submitted within 30 days of the publication of this notice on the following website
DOJ seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOJ notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
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If additional information is required, contact: Darwin Arceo, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, United States Department of Justice, Two Constitution Square, 145 N Street NE, 4W-218 Washington, DC 20530.
Civil Division, Department of Justice.
60-Day notice.
The Civil Division, Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until March 29, 2024.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Kimberly Brown, Director of Operations, September 11th Victim Compensation Fund, 1100 L Street NW, Washington, DC 20531 (phone: 1-855-885-1555; email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Employment and Training Administration (ETA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before February 28, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Michael Howell by telephone at 202-693-6782, or by email at
The State Quality Service Plan (SQSP) is one of several implementing documents for UI PERFORMS, that allows for an exchange of information between the Federal and State partners to enhance the ability of the program to reflect the joint commitment to continuous improvement and client centered services. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Employee Benefits Security Administration (EBSA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before February 28, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Michael Howell by telephone at 202-693-6782, or by email at
The proposed exemption would allow investment advice fiduciaries under both ERISA and the Code to receive compensation, including as a result of advice to roll over assets from a Plan to an IRA, and engage in principal transactions, that would otherwise violate the prohibited transaction provisions of ERISA and the Code. The exemption would apply to registered investment advisers, broker-dealers, banks, insurance companies, and their employees, agents, and representatives that are investment advice fiduciaries. The exemption would include protective conditions designed to safeguard the interests of Plans, participants and beneficiaries, and IRA owners. The new class exemption would affect participants and beneficiaries of Plans, IRA owners, and fiduciaries with respect to such Plans and IRAs. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Office of Management and Budget (OMB).
Notice.
This report is being published as required by the Statutory Pay-As-You-Go (PAYGO) Act of 2010. The Act requires that OMB issue an annual report and a sequestration order, if necessary.
Erin O'Brien. 202-395-3106.
This report can be found at
This Report is being published pursuant to section 5 of the Statutory Pay-As-You-Go (PAYGO) Act of 2010, Public Law 111-139, 124 Stat. 8, 2 U.S.C. 934, which requires that OMB issue an annual PAYGO report, including a sequestration order if necessary, no later than 14 working days after the end of a congressional session.
This Report describes the budgetary effects of all PAYGO legislation enacted during the first session of the 118th Congress and presents the 5-year and 10-year PAYGO scorecards maintained by OMB.
The budget year balance on each of the PAYGO scorecards is zero because the Consolidated Appropriations Act, 2023 (Pub. L. 117-328) shifted the debits on both scorecards from fiscal year 2024 to fiscal year 2025. The change directed by Public Law 117-328 is discussed in more detail in section IV of this report.
During the first session of the 118th Congress, no laws with PAYGO effects were enacted with emergency requirements under section 4(g) of the PAYGO Act, 2 U.S.C. 933(g), though as discussed later in this report, one law was enacted that rescinded funding that received an emergency designation
PAYGO legislation is authorizing legislation that affects direct spending or revenues, and appropriations legislation that affects direct spending in the years after the budget year or affects revenues in any year.
The PAYGO Act's requirement of deficit neutrality is based on two scorecards that tally the cumulative budgetary effects of PAYGO legislation as averaged over rolling 5- and 10-year periods starting with the budget year. The 5-year and 10-year PAYGO scorecards for each congressional session begin with the balances of costs or savings carried over from previous sessions and then tally the costs or savings of PAYGO laws enacted in the most recent session.
The 5-year PAYGO scorecard for the first session of the 118th Congress began with balances of $443,138 million in 2024, $1,256,908 million in 2025, $443,138 million in 2026, and $72,505 million in 2027. The 10-year PAYGO scorecard for the first session of the 118th Congress began with balances of $242,729 million in 2024, $672,477 million in 2025, $242,729 million per year for 2026-2031, and $55,709 million for 2032.
Laws enacted during the first session of the 118th Congress created balances on the 5- and 10-year scorecards of −$1,188 million and −$891 million in each year, respectively. Public Law 117-328 shifted the fiscal year 2024 debits on both scorecards to fiscal year 2025. Therefore, the 2024 balance on both the 5- and 10-year scorecards is zero. There are balances on the 5-year scorecard of $1,697,668 million in 2025, $441,949 million in 2026, $71,317 million in 2027, and −$1,188 million in 2028. There are balances on the 10-year scorecard of $913,423 million in 2025, $241,837 million in per year for 2026-2031, $54,818 million in 2032, and −$891 million in 2033.
In the first session of the 118th Congress, 16 laws were enacted that were determined to constitute PAYGO legislation. Of the 16 enacted PAYGO laws, 5 laws were estimated to have PAYGO budgetary effects (costs or savings) in excess of $500,000 over one or both of the 5-year or 10-year PAYGO windows. These were:
• Public Law 117-333, Veterans Auto and Education Improvement Act of 2022;
• Public Law 118-5, Fiscal Responsibility Act of 2023;
• Public Law 118-19, An Act to amend title 38, United States Code, to extend and modify certain authorities and requirements relating to the Department of Veterans Affairs, and for other purposes;
• Public Law 118-27, 5G Spectrum Authority Licensing Enforcement Act; and
• Public Law 118-31, National Defense Authorization Act for Fiscal Year 2024.
In addition to the laws identified above, 11 laws enacted in this session were estimated to have negligible budgetary effects on the PAYGO scorecards—costs or savings of less than $500,000 over both the 5-year and 10-year PAYGO windows.
No laws were enacted in the first session of the 118th Congress with an emergency designation under the Statutory PAYGO Act. However, scorekeeping guidelines adopted by the Office of Management and Budget, the Congressional Budget Office, and the Congressional budget committees preclude scoring savings for the subsequent rescission of funding that was designated as emergency spending when enacted. Although the provisions rescinding the emergency funding are reported on the PAYGO scorecards maintained by OMB, the savings associated with the rescissions are not included in the balances on the scorecards that are used to determine the need for a sequestration. One law was enacted during the first session of the 118th Congress that rescinded funding that was designated as emergency when it was enacted:
• Public Law 118-5, Fiscal Responsibility Act of 2023.
Two laws enacted in the first session of the 118th Congress had estimated budgetary effects on direct spending and revenues that were excluded from the calculations for the PAYGO scorecards due to provisions in law excluding part of the law from section 4(d) of the PAYGO Act.
Budgetary effects in two laws were excluded from the scorecards:
• Public Law 118-15, Continuing Appropriations Act, 2024 and Other Extensions Act; and
• Public Law 118-22, Further Continuing Appropriations and Other Extensions Act, 2024.
Section 1001(d)(2) of division O of Public Law 117-328, the Consolidated Omnibus Appropriations Act, 2023, states, “For the purposes of the annual report issued pursuant to section 5 of the Statutory Pay-As-You-Go Act of 2010 (2 U.S.C. 934) after adjournment of the first session of the 118th Congress, and for determining whether a sequestration order is necessary under such section, the debit for the budget year on the 5-year scorecard, if any, and the 10-year scorecard, if any, shall be deducted from such scorecards in 2024 and added to such scorecards in 2025.” Accordingly, both the 5- and 10-year scorecards deduct the debit from 2024 and add that debit to 2025.
As shown on the scorecards, the budgetary effects of PAYGO legislation enacted in the first session of the 118th Congress, combined with section 1001(d)(2) of division O of Public Law 117-328, resulted in no costs on either the 5-year or the 10-year scorecard in the budget year, which is 2024 for the purposes of this Report. Because the costs for the budget year, as shown on the scorecards, were set to zero for the budget year, there is no “debit” on either scorecard under section 3 of the PAYGO Act, 2 U.S.C. 932, and a sequestration order is not required.
National Archives and Records Administration (NARA).
Notice; withdrawal.
On January 23, 2024, the National Archives and Records Administration (NARA) published a
The document published at 89 FR 4340 on January 23, 2024, is withdrawn as of January 29, 2024.
Kimberly Richardson, Strategy and Performance Division, by email at
We publish notice of records schedules in which agencies propose to dispose of records they no longer need to conduct agency business. We invite public comments on these records schedules, as required by 44 U.S.C. 3303a(a), and list the schedules at the end of this notice by agency and subdivision requesting disposition authority.
When the records schedule notice was published on January 23, 2024, at 89 FR 4340, the docket was assigned an incorrect number and the link to the URL for the regulations.gov docket for the schedules was incorrect. Due to these clerical errors, the notice will be withdrawn and the schedules will be reposted as soon as possible in a new notice, allowing the full 45-day comment period for the public to submit comments.
1. Department of Defense, Defense Contract Audit Agency, Records related to Security and Intelligence (DAA-0372-2022-0001).
2. Department of Health and Human Services, Office of Medicare Hearings and Appeals, Administrative Law Judge and Attorneys Files (DAA-0468-2023-0003).
3. Department of Homeland Security, Federal Emergency Management Agency, Mission Training Records (DAA-0311-2022-0001).
4. Department of Homeland Security, U.S. Citizenship and Immigration Services, Teacher Training for Citizenship Education Records (DAA-0566-2022-0002).
5. Department of Homeland Security, U.S. Customs and Border Protection, Promissory Notes (DAA-0568-2023-0003).
6. Department of the Navy, Agency-Wide, Telecommunications and Information Technology (DAA-NU-2019-0009).
7. Central Intelligence Agency, Agency-wide, Mission Related Data (DAA-0263-2018-0001).
8. National Security Agency, Agency-wide, Transaction Monitoring (DAA-0457-2024-0001).
National Credit Union Administration (NCUA).
Notice of submission to the Office of Management and Budget.
As required by the Paperwork Reduction Act, the National Credit Union Administration (NCUA) is submitting the new, proposed
Written comments should be received on or before February 28, 2024 to be assured consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submission may be obtained by contacting Rena Y. Kim at (703) 548-2398, emailing
NCUA published a 60-day notice on August 28, 2023 requesting comments under 88 FR 58621 and one comment was received. The commenter made four requests.
(1) To streamline request forms including NCUA reevaluating the forms to ensure all fields are relevant. The NCUA reevaluated the request forms, and we think that NCUA is collecting necessary information. Because NCUA Board members and Senior Leaders have limited time to speak to external entities, NCUA needs comprehensive information on each request in order to evaluate and prioritize the events at which each NCUA official will speak.
(2) The commenter asked that NCUA detail both in a written communication to credit unions and on its website exactly what is required to request a meeting with agency staff. NCUA considered this request. We believe that our website is fairly clear on what is required to request an NCUA Board and/or Senior Leader to speak. When “NCUA speaker requests” was Googled, our forms appeared in the search result. As the commenter notes, the Chairman Speaker Request Form includes helpful information at the top of the form regarding meeting requests, specifically indicating which fields are required to be completed by a requester. We also understand that trade unions have spread the word about using NCUA's forms.
(3) Provide status updates: The commenter indicated that it “would be very helpful if the generic response regarding receipt of a request included contact information for a dedicated staff member who is responsible for shepherding such requests through the approval process. Additionally, periodic updates regarding the status of a request would be beneficial, particularly since many credit unions and credit union associations often plan in-person trips to DC that coincide with such meetings.” The NCUA agrees and will provide a point of contact from an appropriate NCUA office based on the type of request.
(4) To share aggregate information: The commenter indicated that it would be helpful to have general (aggregate) information regarding the number of meeting requests and meetings granted, including whether at the Board or staff level—and possibly even the department or division in which the staff member works as an addition to the NCUA's Annual Report. To the extent possible, NCUA attempts to honor as many speaking requests as the NCUA Chairman, the Board Members and other Senior leaders are able to accommodate based upon each of their demanding schedules.
By the National Credit Union Administration Board.
National Science Foundation.
Notice of permits issued.
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Thursday, February 8, 2024, at 9:00 a.m.; Thursday, February 8, 2024, at 4:00 p.m.
Washington, DC, at U.S. Postal Service Headquarters, 475 L'Enfant Plaza SW, in the Benjamin Franklin Room.
Thursday, February 8, 2024, at 9:00 a.m.—Closed. Thursday, February 8, 2024, at 4:00 p.m.—Open.
Michael J. Elston, Secretary of the Board of Governors, U.S. Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260-1000. Telephone: (202) 268-4800.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe BYX Exchange, Inc. (the “Exchange” or “BYX”) proposes to amend Rule 11.9(c)(6) and Rule 11.13(a)(4)(D) to permit the use of BYX Post Only Orders at prices below $1.00. 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.
Trading in sub-dollar securities both on- and off-exchange has grown significantly since early 2019. An analysis of SIP
As a result of the growth in sub-dollar trading, the Exchange proposes to amend Rule 11.9(c)(6) in order to permit a BYX Post Only Order to post to the BYX Book
As defined in Rule 11.9(c)(6), a BYX Post Only Order is “[a]n order that is to be ranked and executed on the Exchange pursuant to Rule 11.12 and Rule 11.13(a)(4) or cancelled, as appropriate, without routing away to another trading center except that the order will not remove liquidity from the BYX Book. . .”. Accordingly, a BYX Post Only Order does not remove liquidity, but rather posts to the BYX Book to the extent permissible. Additionally, the Exchange proposes to amend Rule 11.13(a)(4)(D) to describe the manner in which bids or offers priced below $1.00 per share are executed against orders resting on the BYX Book. The Exchange believes the proposed changes will provide Users
In order to permit a BYX Post Only Order to post to the BYX Book at prices below $1.00, the Exchange proposes to amend Rule 11.9(c)(6) to remove language that states that a BYX Post Only Order “will remove contra-side liquidity from the BYX Book if the order is an order to buy or sell a security priced below $1.00 . . .”. Currently, BYX Post Only Orders priced below $1.00 are automatically treated as orders that remove liquidity, while BYX Post Only Orders priced at or above $1.00 will only remove liquidity if the value of the overall execution (taking into account all applicable fees and rebates) make it economically beneficial for the order to remove liquidity. A BYX Post Only Order priced at or above $1.00 will continue to remove contra-side liquidity if the value of such execution when removing liquidity equals or exceeds the value of such execution if the order instead posted to the BYX Book and subsequently provided liquidity, including the applicable fees charged or rebates provided. BYX Post Only Orders priced below $1.00 will be treated in the same manner as BYX Post Only Orders priced at or above $1.00 in that BYX Post Only Orders priced below $1.00 will only remove liquidity if the value of the overall execution (taking into account all applicable fees and rebates) make it economically beneficial for the order to remove liquidity. The Exchange has received User feedback requesting the ability to utilize BYX Post Only
In addition to the proposed amendment to Rule 11.9(c)(6), the Exchange proposes an amendment to its order handling procedures in order to permit Non-Displayed Orders
Rule 11.13(a)(4)(D) states that for securities priced above $1.00, incoming orders that are market orders or limit orders priced more aggressively than a displayed order on the same side of the market, the Exchange will execute the incoming order at, in the case of an incoming sell order, one-half minimum price variation less than the price of the displayed order, and, in the case of an incoming buy order, at one-half minimum price variation more than the price of the displayed order. The Exchange proposes that for securities priced below $1.00, incoming orders that are market orders or limit orders priced more aggressively than a displayed order on the same side of the market, the Exchange will execute the incoming order at, in the case of an incoming sell order, one minimum price variation less than the price of the displayed order, and, in the case of an incoming buy order, at one minimum price variation more than the price of the displayed order. The different treatment of securities priced below $1.00 from securities priced at or above $1.00 arises from limitations within the System,
Under the Exchange's current fee schedule, there
• Assume the NBB is $0.50 and the NBO is $0.53. There is no resting interest on the BYX Book.
• Next, assume the Exchange received an incoming displayed offer (Order 1) to sell 100 shares at $0.50. Order 1 is eligible for display-price sliding pursuant to Rule 11.9(g).
• Next, assume the Exchange received an incoming BYX Post Only Order bid (Order 2) to buy 100 shares at $0.50. The Exchange's economic best interest calculation determined that it was more beneficial for Order 2 to post to the BYX Book and display at a price of $0.50. BYX Post Only Orders are permitted to post and be displayed opposite the ranked price of orders subject to display-price sliding.
• The Exchange then receives an IOC
Consistent with the Exchange's rule regarding priority of orders, Rule 11.12, a Non-Displayed order cannot be executed by the Exchange pursuant to Rule 11.13 when such order would be executed at the locking price. Specifically, if an incoming, marketable order was allowed to execute against the resting, non-displayed portion of Order 1 at the locking price, such order would receive a priority advantage over Order 2, a resting, displayed order at the locking price. The Resting Order Execution Filing granted the Exchange the ability to execute Non-Displayed Orders and orders subject to NMS Price Sliding
In the example above, Order 1, ranked at $0.50 upon entry, was slid to a displayed price of $0.5001 pursuant to
As discussed above, the Exchange is proposing that a Resting Order priced below $1.00 be permitted to execute at one minimum price variation above the locking price (in the event of a Resting Order offer) or one minimum price variation below the locking price (in the event of a Resting Order bid) in the event that an order submitted to the Exchange on the side opposite such Resting Order is a market or limit order priced more aggressively than the locking price.
The Resting Order Execution Filing specifically introduced order handling behavior that would permit Resting Orders to be executed at one-half minimum price variation above (below) the locking price when an incoming, marketable offer (bid) would otherwise be prevented from executing due to the presence of a BYX Post Only Order in order to optimize available liquidity for incoming orders and to provide price improvement for market participants.
Without the proposed order handling change for securities priced below $1.00, a Resting Order may be priced at the very inside of the market at a price below $1.00 but temporarily unable to execute at its full limit price due to the Exchange's priority rule and current order handling procedures. The Exchange notes that by permitting a User's Resting Order to rest at a locking price opposite a displayed order and receive an execution against an incoming order that is priced equal to or more aggressively than the displayed price, the Exchange is incentivizing Users to post aggressively priced liquidity on both sides of the market, rather than discouraging such liquidity by leaving orders unexecuted. In addition, if the BYX Book changes so that such orders are no longer resting or ranked opposite a displayed order, then such orders will again be executable at their full limit price, and in the case of price slid orders, will be displayed at that limit price.
The Exchange is proposing a solution to address specific conditions that are present on the BYX Book when a BYX Post Only Order is displayed opposite the ranked price of orders subject to display-price sliding. The Exchange believes that such specific circumstances, without modification of Rule 11.13(a)(4), would be present upon the expansion of BYX Post Only Order functionality to securities priced below $1.00 and would result in Users receiving fewer executions than the Exchange could otherwise facilitate. The Exchange believes the proposed change to Rule 11.13(a)(4)(D) is substantially similar to the order handling modification proposed and ultimately approved by the Resting Order Execution Filing and does not introduce any novel order handling behavior that has not previously been proposed. While the Exchange is proposing to use a full minimum price variation rather than the one-half minimum price variation currently used for securities priced at or above $1.00 as detailed in the Resting Order Execution Filing, the minimum price variation for securities priced below $1.00 is commensurate with the standard minimum pricing increment for securities priced below $1.00.
The Exchange believes the absence of price improvement for the incoming order is diminished by the incoming order's ability to receive an execution on the Exchange against the Resting Order, rather than receive a cancellation or be posted to the BYX Book (depending on User instruction). Further, the Exchange believes that Users who receive increased execution rates on BYX will be more likely to submit additional order flow to the Exchange. Additional increased order flow benefits all market participants by contributing to a deeper, more liquid market and provides even more execution opportunities for active market participants. Additionally, this difference is necessary due to System
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
As discussed above, the Exchange is proposing to expand its BYX Post Only Order functionality to securities priced below $1.00. In conjunction with expanding the ability to utilize BYX Post Only Orders at prices below $1.00, the Exchange also proposes that a Resting Order priced below $1.00 be permitted to execute at one minimum price variation above the locking price (in the event of a Resting Order offer) or one minimum price variation below the locking price (in the event of a Resting Order bid) in the event that an order submitted to the Exchange on the side opposite such Resting Order is a market or limit order priced more aggressively than the locking price. This change in order handling behavior is necessary in order to address specific conditions that are present on the BYX Book when a BYX Post Only Order is displayed opposite the ranked price of orders subject to display-price sliding. As discussed below, the Exchange believes its proposal is consistent with Section 6(b)(5) of the Act.
In particular, the proposal to amend Rule 11.9(c)(6) to permit orders priced below $1.00 to utilize BYX Post Only Order functionality promotes just and equitable principles of trade and removes impediments to, and perfects the mechanism of a free and open market and a national market system because it will allow Users to enter orders with a BYX Post Only instruction at any price, rather than being limited to securities priced above $1.00. The growth in trading of sub-dollar securities has expanded significantly since 2019 and as such, the Exchange believes that orders at all prices, not only securities priced above $1.00, should be permitted to utilize BYX Post Only Order functionality, which will permit orders to post on the Exchange without removing liquidity or routing to away to another trading center. BYX Post Only Orders allow Users to post aggressively priced liquidity, as such Users have certainty as to the fee or rebate they will receive from the Exchange if their order is executed. Without such ability, the Exchange believes that certain Users would simply post less aggressively priced liquidity, and prices available for market participants, including retail investors, would deteriorate. Accordingly, the Exchange believes that BYX Post Only Orders enhance the liquidity available to all market participants by allowing market makers and other liquidity providers to add liquidity to the Exchange at or near the inside of the market. Indeed, such market participants have asked the Exchange to implement such functionality in order to permit them to utilize a single trading strategy across securities at all prices. Allowing BYX Post Only Orders to be utilized at prices below $1.00 will deepen the Exchange's pool of available liquidity in sub-dollar securities, which is a growing area of trading, particularly for retail investors. A deeper and more liquid market supports the quality of price discovery, promotes market transparency, and improves market quality for all investors. The Exchange does not believe that the proposed amendment to Rule 11.9(c)(6) is unfairly discriminatory as it will permit the BYX Post Only Order type to be used by all Users at any price and the order type will no longer be limited to securities priced at or above $1.00.
Similarly, the proposal to amend Rule 11.13(a)(4)(D) to allow, under limited circumstances, a Resting Order priced below $1.00 that would otherwise be non-executable due to the presence of a BYX Post Only Order to execute at one minimum price variation above (below) the locking price upon receipt of an incoming, marketable offer (bid) that would otherwise be prohibited from executing due to the presence of a BYX Post Only Order promotes just and equitable principles of trade and removes impediments to, and perfects the mechanism of a free and open market and a national market system because it extends functionality currently available to orders priced at or above $1.00 to orders priced below $1.00, with a slight difference in the minimum price variation to account for the System's inability to display orders out to five decimal places ($0.00001). The proposed amendment to Rule 11.13(a)(4)(D) is substantially similar to the order handling behavior change that was proposed (and later approved) by the Resting Order Execution Filing and will only serve to improve execution quality for participants sending orders to the Exchange.
The Exchange does not believe that the treatment of sub-dollar securities is unfairly discriminatory as the Exchange will be using the standard minimum pricing increment for sub-dollar securities in order to determine the price at which the Resting Order is eligible to execute.
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. The proposed change to Rule 11.9(c)(6) will apply equally to all Users in that all Users will be eligible to utilize the BYX Post Only Order for securities priced below $1.00. Similarly, the proposed change to Rule 11.13(a)(4)(D) applies equally to all Users in that all Resting Orders will benefit from the proposed order handling behavior change that will execute Resting Orders at one minimum price variation above (below) the locking price upon the receipt of a marketable offer (bid) should a Resting Order be ineligible to execute due to the presence of a contra-side BYX Post Only Order. The proposed changes are designed to expand an existing Exchange order type and existing order handling behavior to securities priced below $1.00 due to the growth in sub-dollar trading that has been seen since 2019. Further, the Exchange does not believe that Users submitting incoming, contra-side orders are burdened by virtue of not receiving price improvement in limited situations as they instead receive the benefit of an immediate execution as opposed to being cancelled back to the User or posting on the BYX Book which results in increased overall market quality and a higher likelihood of execution on BYX.
The Exchange similarly does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. In fact, the Exchange notes that other exchanges already offer the ability to submit an order that is not eligible for routing to away markets and posts to the relevant exchange book at prices below $1.00.
The Exchange neither solicited nor received comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. by order approve or disapprove such proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 19, 2023, Cboe BZX Exchange, Inc. (“BZX” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
On December 27, 2023, the Commission instituted proceedings under Section 19(b)(2)(B) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 29, 2023, Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Section 19(b)(2) of the Act
The Commission is extending the 45-day time period for Commission action on the proposed rule change. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change and the comments received. Accordingly, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
2:00 p.m. on Thursday, February 1, 2024.
The meeting will be held via remote means and/or at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
The subject matter of the closed meeting will consist of the following topics:
Institution and settlement of injunctive actions; Institution and settlement of administrative proceedings; Resolution of litigation claims; and Other matters relating to examinations and enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting agenda items that may consist of adjudicatory, examination, litigation, or regulatory matters.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to list and trade options that overlie a reduced value of the MSCI World Index, the full value of the MSCI ACWI Index, and a reduced value of the MSCI USA Index. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend certain rules to permit the Exchange to list and trade options that overlie a reduced value of the MSCI World Index, the full value of the MSCI ACWI Index, and a reduced value of the MSCI USA Index.
The MSCI World, ACWI, and USA Indexes are calculated by MSCI Inc. (“MSCI”), which is a provider of investment support tools.
MSCI monitors and maintains each of the MSCI World, ACWI, and USA Indexes. Adjustments to each index are made on a daily basis with respect to corporate events and dividends. MSCI reviews each index on a quarterly basis (February, May, August and November) “with the objective of reflecting the evolution of the underlying equity markets and segments on a timely basis, while seeking to achieve: [i]ndex continuity, [c]ontinuous investability of constituents and replicability of the indexes, and [i]ndex stability and low index turnover.”
For each of the MSCI World, ACWI, and USA Index, real-time data is distributed approximately every 15 seconds while the index is being calculated using MSCI's real-time
The MSCI World Index is a free float-adjusted market capitalization index that is designed to measure the equity market performance of developed markets. The MSCI World Index consists of component stocks from 23 developed markets.
The Exchange notes that the iShares MSCI World ETF exchange-traded fund (“ETF”) is an actively traded product. The Exchange also lists options overlying that ETF (“URTH options”) and those options are actively traded as well. MSCI World Index futures contracts (“MWS futures”) are listed for trading on the ICE Futures U.S.
The Exchange proposes to base trading in options on the MSCI World Index on a fraction of the full size of the index. In particular, the Exchange propose to list MXWLD options that are based on 1/100th of the value of the MSCI World Index. The Exchange believes that listing options on the reduced value of the index will attract a greater source of customer business than if options were based on the full value of the MSCI World Index. The Exchange further believes that listing options on a reduced value of the index may enhance investors' opportunities to hedge, or speculate on, the market risk associated with the stocks comprising the MSCI World Index. Additionally, by reducing the value of the MSCI World Index, investors will be able to use this trading vehicle while extending a smaller outlay of capital. The Exchange believes this may attract additional investors, and, in turn, create a more active and liquid trading environment.
The MSCI ACWI Index is a free float-adjusted market capitalization index that is designed to measure the equity performance of developed markets and emerging markets. The MSCI ACWI Index consists of component stocks from 23 developed markets
The Exchange notes that the iShares MSCI ACWI ETF is an actively traded product. The Exchange also lists options overlying that ETF (“ACWI options”) and those options are actively traded as well. MSCI ACWI Index futures contracts (“MMW futures”) are listed for trading on the ICE Futures U.S.
The MSCI USA Index is a free float-adjusted market capitalization index that is designed to measure the performance of the large- and mid-cap segments of the U.S. market. The MSCI USA Index consists of large- and mid-cap components from the United States, has 625 constituents, and covers approximately 85% of the free float-adjusted market capitalization in the United States.
The Exchange notes that the Invesco MSCI USA ETF is an actively traded product.
The Exchange proposes to base trading in options on the MSCI USA Index on a fraction of the full size of the index. In particular, the Exchange propose to list MXUSA options that are based on 1/100th of the value of the MSCI USA Index. The Exchange believes that listing options on the reduced value of the index will attract a greater source of customer business than if options were based on the full value of the MSCI USA Index. The Exchange further believes that listing options on a reduced value of the index may enhance investors' opportunities to hedge, or speculate on, the market risk associated with the stocks comprising the MSCI USA Index. Additionally, by reducing the value of the MSCI USA Index, investors will be able to use this trading vehicle while extending a smaller outlay of capital. The Exchange believes this may attract additional investors, and, in turn, create a more active and liquid trading environment.
The Exchange proposes to apply to each of the MSCI World Index, MSCI ACWI Index, and MSCI USA Index the same initial listing criteria that currently apply to the MSCI EAFE Index and the MSCI EM Index.
(1) the index is broad-based, as defined in Rule 4.11;
(2) options on the index are designated as P.M.-settled index options;
(3) the index is capitalization-weighted, price-weighted, modified capitalization-weighted or equal dollar-weighted;
(4) the index consists of 500 or more component securities;
(5) all of the component securities of the index will have a market capitalization of greater than $100 million
(6) no single component security accounts for more than 15% of the weight of the index,
(7) non-U.S. component securities (stocks or ADRs) that are not subject to comprehensive surveillance agreements do not, in the aggregate, represent more than: (A) 25% of the weight of the EAFE Index (each of the MSCI World, ACWI, and USA Indexes satisfies this criterium), (B) 27.5% of the weight of the EM Index, (C) 32.5% of the weight of the FTSE Developed Index, and (D) 35% of the weight of the FTSE Emerging Index;
(8) during the time options on the index are traded on the Exchange, the current index value is widely disseminated at least once every 15 seconds by one or more major market data vendors;
(9) the Exchange reasonably believes it has adequate system capacity to support the trading of options on the index, based on a calculation of the Exchange's current Independent System Capacity Advisor (ISCA) allocation and the number of new messages per second expected to be generated by options on such index; and
(10) The Exchange has written surveillance procedures in place with respect to surveillance of trading of options on the index.
The Exchange also proposes to subject each of the MSCI World, ACWI, and USA Indexes to the maintenance listing standards set forth in Rule 4.10(i), which currently applies to the MSCI EAFE and EM Indexes:
(1) the conditions stated in paragraphs (1), (2), (3), (4) (8), (9), and (10) above must continue to be satisfied; the conditions stated in paragraphs (5) and (6) above must be satisfied only as of the first day of January and July in each year; and the conditions set forth in paragraph (7) must be satisfied as of the first day of the month following MSCI's review of the weighting of the constituents in the applicable index but in no case less than a quarterly basis; and
(2) the total number of component securities in the index may not increase or decrease by more than 35% from the number of component securities in the index at the time of its initial listing.
Because each of the MSCI World Index, MSCI ACWI Index, and MSCI USA Index has a large number of component securities and is based on the same methodology as the MSCI EAFE and EM Indexes, as discussed above, the Exchange believes it is appropriate for the initial and maintenance listing criteria (which require continual and periodic compliance) set forth under Rule 4.10(h) and (i) to also apply to the MSCI World, ACWI, and USA Index options.
The Exchange proposes that MXWLD, MXACW, and MXUSA options will trade during the same hours as other index options, including EAFE and EM options. Specifically, the Exchange proposes to adopt Regular Trading Hours of 9:30 a.m. to 4:00 p.m. (Eastern time) for MXWLD, MXACW, and MXUSA options.
As proposed, the last trading day for MXUSA options will be the day of expiration (from 9:30 a.m. to 4:00 p.m. (Eastern time), pursuant to Rule 5.1(b)(2)(A)). As set forth below, the Exchange proposes that MXUSA options will be p.m.-settled, which means the exercise settlement value of an expiring option is derived from the closing prices of the underlying components on the series expiration date. As noted above, the MSCI USA Index is comprised of components solely from the United States. Therefore, the components of the MSCI USA Index trade from 9:30 a.m. to 4:00 p.m. (Eastern time), including on the expiration date of the proposed MXUSA options. Allowing options to trade through their expiration (and thus on their day of expiration) will provide investors with the ability to modify their positions in response to changes in the prices of the underlying index components that will impact the settlement values of those options. This is consistent with the last trading day for other options on broad-based p.m.-settled indexes comprised of components solely from the United States.
The Exchange proposes to amend Rule 5.1(b)(2)(E) to provide that the last trading day for MXWLD and MXACW options will be the business day prior to the expiration date of the specific series (from 9:30 a.m. to 4:00 p.m. (Eastern time), pursuant to Rule 5.1(b)(2)(A)).
Pursuant to Rule 5.3(a), bids and offers on MXWLD, MXACW, and MXUSA options (like all other options) must be expressed in terms of dollars and decimals per unit of the underlying index. Pursuant to Rule 5.4(a), the minimum increment for bids and offers on simple orders for options on these three indexes, as is the case for most other index options, will be $0.05 if the series trading price is lower than $3.00 and $0.10 if the series trading price is $3.00 or higher. Rule 5.4(b) provides that the minimum increment for bids and offers on complex orders in options on these three indexes will be $0.01 or greater (as determined by the Exchange) and that the legs may be executed in $0.01 increments.
MXWLD, MXACW, and MXUSA options will be subject to the same procedures for adding and deleting strikes for index options as other index options. Specifically, Rule 4.13, Interpretation and Policy .01 states the procedures for adding and deleting strike prices for index options are provided in Rule 4.5 and Interpretations and Policies related thereto, as otherwise generally provided by Rule 4.13, and as otherwise set forth in Rule 4.13, Interpretation and Policy .01.
Pursuant to Rule 4.20, the Exchange may authorize for trading a like flexible (“FLEX”) options class on any index if it may authorize for trading a non-FLEX option class on that index pursuant to Rule 4.10. Therefore, as proposed, the Exchange may authorize for trading FLEX Options on the MSCI World Index, MSCI ACWI Index, and MSCI USA Index, which the Exchange may authorize for trading pursuant to proposed Rule 4.10(h).
Additionally, Rule 5.6(c) permits Multi-Class Spread Orders, which are orders to buy a stated number of contracts of a broad-based index option and to sell an equal number, or an equivalent number, of contracts of a related broad-based index option. For purposes of Multi-Class Spread Orders, a “broad-based index option” is an option on a broad-based index, ETF, or exchange-traded note (“ETN”) listed in subparagraph (1) of the definition of Multi-Class Spread Order in Rule 5.6(c) or any other broad-based index or ETF or ETN derived from a broad-based index the Exchange determines creates an appropriate hedge with any other broad-based index option. The Exchange proposes to add MSCI World Index and MSCI ACWI Index, as well as corresponding ETFs URTH and ACWI, and the combinations of MXWLD and URTH options and MXACW and ACWI options to the list of permissible Multi-Class Spread Orders, as the Exchange has determined that these combinations create appropriate hedges (as do other MSCI options and corresponding ETF options).
Consistent with existing rules for other index options, including EAFE and EM options, the Exchange will allow up to twelve near-term expiration months for each of MXWLD, MXACW, and MXUSA options
MXWLD, MXACW, and MXUSA options will be P.M.-, cash-settled contracts with European-style exercise.
The Exchange proposes to amend Rule 4.13(a)(3) to add MXWLD, MXACW, and MXUSA options to the list of other European-style (and P.M.-settled) index options. European-style (and P.M.-settled) exercise is consistent with many index options, as set forth in Rule 4.13(a)(3). EAFE and EM options are also P.M.-settled with European-style exercise. Given that the MSCI World, ACWI, and USA Indexes are broad-based indexes and based on the same methodology as the MSCI EAFE and EM Indexes, as noted above, the Exchange believes it is appropriate for options on these three indexes to have the same settlement and exercise style as the other MSCI Index options.
Like other index options, the exercise settlement amount of MXWLD, MXACW, and MXUSA options will be equal to the difference between the exercise settlement value (with respect to MXWLD and MXUSA options, 1/100th of the official closing value of the MSCI World Index and MSCI USA Index, respectively, and, with respect to MXACW options, the official closing value of the MSCI ACWI Index, each as
The Exchange proposes to amend Rule 8.31(a) to apply a position limit of 50,000 contracts (with no restrictions) to MXWLD, MXACW, and MXUSA options.
MXWLD, MXACW, and MXUSA options will be margined as “broad-based index” options. Under the Exchange's Rules, particularly Rule 10.3(c)(5)(A), the margin requirement for a short put or call will be 100% of the current market value of the contract plus 15% of the “product of the current index group value and the applicable index multiplier,” reduced by any out-of-the-money amount. There would be a minimum margin requirement of 100% of the current market value of the contract plus: 10% of the aggregate put exercise price amount in the case of puts, and 10% of the product of the current index group value and the applicable index multiplier in the case of calls. Additional margin may be required under the Rules, including pursuant to Rules 10.3(h) and 10.10.
The Exchange represents that it has an adequate surveillance program in place for MXWLD, MXACW, and MXUSA options and intends to use the same surveillance procedures currently utilized for each of the Exchange's other index options to monitor trading in these options. The Exchange is a member of the Intermarket Surveillance Group (“ISG”), along with numerous other self-regulatory bodies across the world. ISG provides a framework for sharing information and coordinating regulatory efforts among exchanges trading securities and related products.
The Exchange has analyzed its capacity and represents that it believes the Exchange and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the additional traffic associated with the listing of new series that would result from the introduction of MXWLD, MXACW, and MXUSA options. Because the proposal is limited to three classes, the Exchange believes any additional traffic that would be generated from the introduction of the MSCI World, ACWI, and USA Index options would be manageable.
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 permit the Exchange to list and trade options on each of the MSCI World Index, the MSCI ACWI Index, and the MSCI USA Index will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest, because the proposed rule change will introduce new index option products to the marketplace. As a result, investors will have additional and different opportunities to hedge or speculate on the market risk associated with these indexes by offering exchange-listed options directly on the indexes. Further, the proposed rule change is consistent with current Rules, which were previously approved by the
The Exchange believes the proposed rule changes regarding the last day of trading for MXWLD, MXACW, and MXUSA options will remove impediments to and perfect the mechanism of a free and open market and benefit investors. The Exchange understands that Market-Makers and other liquidity providers will generally price these options using the disseminated index values and data from the markets on which the components trade (as they do for EAFE and EM options). As noted above, when these markets are not trading during U.S. trading hours, these liquidity providers can price the options using prices of futures trading on the MSCI World and ACWI Indexes. While those futures prices can serve as a proxy for the index value, they would not be able to serve as a proxy for the settlement value on the expiration date for MXWLD and MXACW options. This is because the futures pricing is intended to represent the then-current index value, but does not incorporate the closing prices of the components that will be used to determine the settlement value. This would create risk for Market-Makers and other liquidity providers, as they would have no data they can use to price the expiring options based on the ultimate settlement value. This could result in trades at prices inconsistent with the settlement value of those options. The Exchange believes the proposed rule change will remove impediments to and perfect the mechanism of a free and open market by eliminating this pricing risk for liquidity providers on the last trading day of expiring series in these products and may provide more competitive pricing and additional trading opportunities for expiring series, which ultimately benefits investors. Other options stop trading on the business day preceding expiration.
The Exchange proposes that the last day of trading for MXUSA options will be their expiration dates, like most p.m.-settled options the Exchange lists. Unlike the MSCI World and ACWI Indexes, all of the components of the MSCI USA Index trade on U.S. markets. Thus, the prices of those components will be changing on the expiration date of MXUSA options from 9:30 a.m. to 4:00 p.m. (Eastern time) on the options' expiration dates. As noted above, the Exchange understands that Market-Makers and other liquidity providers will generally price these options using the disseminated index values and data from the markets on which the components trade. With respect to the MSCI USA Index, its underlying components will be trading from 9:30 a.m. to 4:00 p.m. (Eastern time) on the expiration date of MXUSA options, and thus up until the time (4:00 p.m. (Eastern time)) when MSCI will disseminate the closing value of the index. Permitting trading on the expiration date for the MXUSA options will allow Market-Makers and other liquidity providers to update the prices of expiring options in response to changes in the prices of the index components on that date, which changes will be incorporated into the settlement value of those options. The Exchange believes the proposed rule change will remove impediments to and perfect the mechanism of a free and open market by encouraging liquidity providers to provide more competitive pricing and additional trading opportunities for expiring series at prices that reflect the then-current value of the index and its components. Additionally, permitting trading in MXUSA options on their expiration dates will permit investors to be able to trade out of positions in response to pricing changes of those components during the entire final day of trading before the options' settlement. Other p.m.-settled index options stop trading on their expiration dates.
The Exchange believes offering options on a reduced value of each of the MSCI World Index and MSCI USA Index will benefit investors, as it will attract a greater source of customer business than if options were based on the full value of those indexes.
The Exchange also believes the proposed rule change is consistent with Section 6(b)(1) of the Act,
Additionally, the proposed position and exercise limits that would apply to MXWLD, MXACW, and MXUSA options are similar to the current position and exercise limits that apply to other broad-based index options, and the same as those that apply to EAFE and EM options. The Exchange further notes that current Rules that apply to the trading of other index options traded on the Exchange, such as EAFE and EM options, would also apply to the trading of MXWLD, MXACW, and MXUSA options, such as, for example, Rules governing customer accounts, margin requirements, and trading halt procedures. The proposed index options would be subject to the same reporting requirements as other index options, which require that each TPH or TPH organization that maintains positions in the options on the same side of the market, for its own account or for the account of a customer, report certain information to the Exchange. This information would include, but would not be limited to, the options' positions, whether such positions are hedged and, if so, a description of the hedge(s). Market-Makers
The Exchange believes the current financial requirements imposed by the Exchange and by the Commission adequately address concerns regarding potentially large, unhedged positions on index options, further promoting just and equitable principles of trading and the maintenance of a fair and orderly market. Current margin and risk-based haircut methodologies serve to limit the size of positions maintained by any one account by increasing the margin and/or capital that a TPH must maintain for a large position held by itself or by its customer.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act, because MXWLD, MXACW, and MXUSA options will be available to all market participants and will trade in the same manner as other index options in accordance with the Exchange's Rules.
The Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act, and instead believes the proposed rule change will enhance competition among market participants by introducing new index options to the market that may compete with other products currently available in the market (such as U.S.- and European-traded derivatives on the same indexes). As discussed above, the MSCI World Index, MSCI ACWI Index, and MSCI USA Index each satisfies the same initial listing criteria that currently applies to the MSCI EAFE Index and MSCI EM Index (as well as the FTSE Developed and FTSE Emerging Index). Additionally, the proposed terms of these index options (including the number of expirations, settlement, and exercise style) are consistent with current rules applicable to many other broad-based index options.
The Exchange neither solicited nor received comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. by order approve or disapprove such proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, 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.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold an Open Meeting on Wednesday, January 31, 2024, at 10:00 a.m. (ET).
The meeting will be held in Auditorium LL-002 at the Commission's headquarters, 100 F Street NE, Washington, DC 20549 and will be simultaneously webcast on the Commission's website at
This meeting will begin at 10:00 a.m. (ET) and will be open to the public. Seating will be on a first-come, first-served basis. Visitors will be subject to security checks. The meeting will be webcast on the Commission's website at
1. The Commission will consider whether to adopt new rules to further define the phrase “as a part of a regular business” as used in the statutory definitions of the terms “dealer” and “government securities dealer” under the Securities Exchange Act of 1934, in connection with certain liquidity providers.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe BZX Exchange, Inc. (the “Exchange” or “BZX”) proposes to amend Rule 11.9(c)(6) and Rule 11.13(a)(4)(D) to permit the use of BZX Post Only Orders at prices below $1.00. 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.
Trading in sub-dollar securities both on- and off-exchange has grown significantly since early 2019. An analysis of SIP
As a result of the growth in sub-dollar trading, the Exchange proposes to amend Rule 11.9(c)(6) in order to permit a BZX Post Only Order to post to the BZX Book
Currently, BZX Post Only Orders priced below $1.00 are automatically treated as orders that remove liquidity.
In addition to the proposed amendment to Rule 11.9(c)(6), the Exchange proposes an amendment to its order handling procedures in order to permit Non-Displayed Orders
Rule 11.13(a)(4)(D) states that for securities priced above $1.00, incoming orders that are market orders or limit orders priced more aggressively than a displayed order on the same side of the market, the Exchange will execute the incoming order at, in the case of an incoming sell order, one-half minimum price variation less than the price of the displayed order, and, in the case of an incoming buy order, at one-half minimum price variation more than the price of the displayed order. The Exchange proposes that for securities priced below $1.00, incoming orders that are market orders or limit orders priced more aggressively than a displayed order on the same side of the market, the Exchange will execute the incoming order at, in the case of an incoming sell order, one minimum price variation less than the price of the displayed order, and, in the case of an incoming buy order, at one minimum price variation more than the price of the displayed order. The different treatment of securities priced below $1.00 from securities priced at or above $1.00 arises from limitations within the System,
In order to demonstrate the proposed order handling behavior for securities priced below $1.00, the Exchange has included the following examples:
• Assume the NBB is $0.50 and the NBO is $0.53. There is no resting interest on the BZX Book.
• Next, assume the Exchange received an incoming displayed offer (Order 1) to sell 100 shares at $0.50. Order 1 is eligible for display-price sliding pursuant to Rule 11.9(g).
• Next, assume the Exchange received an incoming BZX Post Only Order bid (Order 2) to buy 100 shares at $0.50. The Exchange's economic best interest calculation determined that it was more beneficial for Order 2 to post to the BZX Book and display at a price of $0.50. BZX Post Only Orders are permitted to post and be displayed opposite the ranked price of orders subject to display-price sliding.
• The Exchange then receives an IOC
Consistent with the Exchange's rule regarding priority of orders, Rule 11.12, a Non-Displayed order cannot be executed by the Exchange pursuant to Rule 11.13 when such order would be executed at the locking price. Specifically, if an incoming, marketable order was allowed to execute against the resting, non-displayed portion of Order 1 at the locking price, such order would receive a priority advantage over Order 2, a resting, displayed order at the locking price. The Resting Order Execution Filing granted the Exchange the ability to execute Non-Displayed Orders and orders subject to NMS Price Sliding
In the example above, Order 1, ranked at $0.50 upon entry, was slid to a displayed price of $0.5001 pursuant to Rule 11.9(g)(1)(A) as it locked the NBB. Upon the arrival of Order 2, which is a BZX Post Only Order that is permitted to post to the BZX Book and display opposite of Order 1,
As discussed above, the Exchange is proposing that a Resting Order priced below $1.00 be permitted to execute at one minimum price variation above the locking price (in the event of a Resting Order offer) or one minimum price variation below the locking price (in the event of a Resting Order bid) in the event that an order submitted to the Exchange on the side opposite such Resting Order is a market or limit order priced more aggressively than the locking price.
The Resting Order Execution Filing specifically introduced order handling behavior that would permit Resting Orders to be executed at one-half minimum price variation above (below) the locking price when an incoming, marketable offer (bid) would otherwise be prevented from executing due to the presence of a BZX Post Only Order in order to optimize available liquidity for incoming orders and to provide price improvement for market participants.
Without the proposed order handling change for securities priced below $1.00, a Resting Order may be priced at the very inside of the market at a price below $1.00 but temporarily unable to execute at its full limit price due to the Exchange's priority rule and current order handling procedures. The Exchange notes that by permitting a User's Resting Order to rest at a locking price opposite a displayed order and receive an execution against an incoming order that is priced equal to or more aggressively than the displayed price, the Exchange is incentivizing Users to post aggressively priced liquidity on both sides of the market, rather than discouraging such liquidity by leaving orders unexecuted. In addition, if the BZX Book changes so that such orders are no longer resting or ranked opposite a displayed order, then such orders will again be executable at their full limit price, and in the case of price slid orders, will be displayed at that limit price.
The Exchange is proposing a solution to address specific conditions that are present on the BZX Book when a BZX Post Only Order is displayed opposite the ranked price of orders subject to display-price sliding. The Exchange believes that such specific circumstances, without modification of Rule 11.13(a)(4), would be present upon the expansion of BZX Post Only Order functionality to securities priced below $1.00 and would result in Users receiving fewer executions than the Exchange could otherwise facilitate. The Exchange believes the proposed change to Rule 11.13(a)(4)(D) is substantially similar to the order handling modification proposed and ultimately approved by the Resting Order Execution Filing and does not introduce any novel order handling behavior that has not previously been proposed. While the Exchange is proposing to use a full minimum price variation rather than the one-half minimum price variation currently used for securities priced at or above $1.00 as detailed in the Resting Order Execution Filing, the minimum price variation proposed for securities priced below $1.00 is commensurate with the standard minimum pricing increment for securities priced below $1.00.
The Exchange believes the absence of price improvement for the incoming order is diminished by the incoming order's ability to receive an execution on the Exchange against the Resting Order, rather than receive a cancellation or be posted to the BZX Book (depending on User instruction). Further, the Exchange believes that Users who receive increased execution rates on BZX will be more likely to submit additional order flow to the Exchange. Additional increased order flow benefits all market participants by contributing to a deeper, more liquid market and provides even more execution opportunities for active market participants. Additionally, this difference is necessary due to System limitations that do not support executions out to five decimal places ($0.00001) in securities priced below $1.00, which would occur should the Exchange utilize the same minimum price variation described in the Resting Order Execution Filing. The proposal to amend Rule 11.13(a)(4)(D) is limited to certain circumstances that occur as a result of the presence of a BZX Post Only Order resting opposite a Non-Displayed Order or order subject to display-price sliding and is designed to optimize available liquidity for incoming orders.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
As discussed above, the Exchange is proposing to expand its BZX Post Only Order functionality to securities priced below $1.00. In conjunction with expanding the ability to utilize BZX Post Only Orders at prices below $1.00, the Exchange also proposes that a Resting Order priced below $1.00 be permitted to execute at one minimum price variation above the locking price (in the event of a Resting Order offer) or one minimum price variation below the locking price (in the event of a Resting Order bid) in the event that an order submitted to the Exchange on the side opposite such Resting Order is a market or limit order priced more aggressively than the locking price. This change in order handling behavior is necessary in order to address specific conditions that are present on the BZX Book when a BZX Post Only Order is displayed opposite the ranked price of orders subject to display-price sliding. As discussed below, the Exchange believes its proposal is consistent with Section 6(b)(5) of the Act.
In particular, the proposal to amend Rule 11.9(c)(6) to permit orders priced below $1.00 to utilize BZX Post Only Order functionality promotes just and equitable principles of trade and removes impediments to, and perfects the mechanism of a free and open market and a national market system because it will allow Users to enter orders with a BZX Post Only instruction at any price, rather than being limited to securities priced above $1.00. The growth in trading of sub-dollar securities has expanded significantly since 2019 and as such, the Exchange believes that orders at all prices, not only securities priced above $1.00, should be permitted to utilize BZX Post Only Order functionality, which will permit orders to post on the Exchange without removing liquidity or routing to away to another trading center. BZX Post Only Orders allow Users to post aggressively priced liquidity, as such Users have certainty as to the fee or rebate they will receive from the Exchange if their order is executed. Without such ability, the Exchange believes that certain Users would simply post less aggressively priced liquidity, and prices available for
Similarly, the proposal to amend Rule 11.13(a)(4)(D) to allow, under limited circumstances, a Resting Order priced below $1.00 that would otherwise be non-executable due to the presence of a BZX Post Only Order to execute at one minimum price variation above (below) the locking price upon the receipt of an incoming, marketable offer (bid) that would otherwise be prohibited from executing due to the presence of a BZX Post Only Order promotes just and equitable principles of trade and removes impediments to, and perfects the mechanism of a free and open market and a national market system because it extends functionality currently available to orders priced at or above $1.00 to orders priced below $1.00, with a slight difference in the minimum price variation to account for the System's inability to display orders out to five decimal places ($0.00001). The proposed amendment to Rule 11.13(a)(4)(D) is substantially similar to the order handling behavior change that was proposed (and later approved) by the Resting Order Execution Filing and will only serve to improve execution quality for participants sending orders to the Exchange.
The Exchange does not believe that the treatment of sub-dollar securities is unfairly discriminatory as the Exchange will be using the standard minimum pricing increment for sub-dollar securities in order to determine the price at which the Resting Order is eligible to execute.
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. The proposed change to Rule 11.9(c)(6) will apply equally to all Users in that all Users will be eligible to utilize the BZX Post Only Order for securities priced below $1.00. Similarly, the proposed change to Rule 11.13(a)(4)(D) applies equally to all Users in that all Resting Orders will benefit from the proposed order handling behavior change that will execute Resting Orders at one minimum price variation above (below) the locking price upon the receipt of a marketable offer (bid) should a Resting Order be ineligible to execute due to the presence of a contra-side BZX Post Only Order. The proposed changes are designed to expand an existing Exchange order type and existing order handling behavior to securities priced below $1.00 due to the growth in sub-dollar trading that has been seen since 2019. Further, the Exchange does not believe that Users submitting incoming, contra-side orders are burdened by virtue of not receiving price improvement in limited situations as they instead receive the benefit of an immediate execution as opposed to being cancelled back to the User or posting on the BZX Book which results in increased overall market quality and a higher likelihood of execution on BZX.
The Exchange similarly does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. In fact, the Exchange notes that other exchanges already offer the ability to submit an order that is not eligible for routing to away markets and posts to the relevant exchange book at prices below $1.00.
The Exchange neither solicited nor received comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. by order approve or disapprove such proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice.
The FHWA is announcing a pilot program to enable, on an experimental basis, a State department of transportation (State DOT) to determine the Federal share on a project, multi-project, or program basis for projects under certain specified programs. The Federal Share Flexibility Pilot (Pilot) Program will be carried out until September 30, 2026.
Applications must be received by March 29, 2024.
All application materials should be emailed to
Mr. Dan Parker, Senior Program Analyst, Office of Financial Management, (801) 955-3518,
An electronic copy of this notice may be downloaded from the Office of the Federal Register's home page at:
The Federal-aid highway program is a federally funded, State-administered program, under which State DOTs are responsible for determining which projects are federally funded. Projects are authorized and federally funded up to the maximum Federal share as authorized in statute. Section 11107 of the Bipartisan Infrastructure Law (BIL), enacted as the Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58), amended section 120(l) of title 23, United States Code (U.S.C.) to require the establishment of a Pilot Program not later than 180 days after the date of enactment of the BIL. In accordance with 23 U.S.C. 120(l), selected States in the Pilot Program are allowed to determine the Federal share on an individual project that is more than 0 percent and up to 100 percent as long as the average annual Federal share of all participating projects does not exceed the average of the maximum Federal share of those projects if those projects were not carried out under the Pilot Program. The following guidelines have been established for the Pilot Program:
(a) Up to 10 State DOTs may participate in the Pilot Program.
(b) The Pilot Program will expire on September 30, 2026.
(c) The Federal share will be determined based on the following criteria:
(1) Determined based on project, multiple projects, or program basis.
(2) Maximum Federal share for an individual project under the Pilot Program is 100 percent.
(3) Minimum Federal share for an individual project under the Pilot Program is greater than 0 percent (
(4) The average annual Federal share of the total cost of all projects authorized under this Pilot Program shall not exceed the average of the maximum Federal share of those projects if those projects were not carried out under the Pilot Program.
(d) State DOTs participating in the Pilot Program may determine the Federal share on a project, multiple-project, or program basis for projects under any of the following programs:
(1) National Highway Performance Program (23 U.S.C. 119).
(2) Surface Transportation Block Grant (23 U.S.C. 133).
(3) Highway Safety Improvement (23 U.S.C. 148).
(4) Congestion Mitigation and Air Quality Program (23 U.S.C. 149).
(5) National Highway Freight Program (23 U.S.C. 167).
(6) Carbon Reduction Program (23 U.S.C. 175).
(7) Subsection (c) eligible activities of the Promoting Resilient Operations for Transformative, Efficient, and Cost saving Transportation Program (23 U.S.C. 176).
(e) Participating State DOT Requirements:
(1) Submit an application in accordance with the instructions below.
(2) Have in place adequate financial controls to allow the State to determine the average annual Federal share requirements under the Pilot Program.
The objectives of the Pilot Program are to:
(1) Determine if State DOTs experience efficiencies in connection with oversight of projects and determining the Federal share amounts on a project, multi-project, or program basis.
(2) Determine whether this innovative approach helps State DOTs deliver Federal-aid highway projects with more efficiency and effectiveness.
(3) Assess whether this approach helps FHWA realize process efficiencies through flexible Federal share amounts.
The Federal-aid highway program supports States by providing financial assistance for the design, construction, preventive maintenance, and other federally eligible costs associated with about 25 percent of the 3.9 million mile highway network of the United States, which includes the Interstate Highway System and the National Highway System, as well as primary highways and other major collector roads. Federal funds and obligation authority are distributed to the State DOTs, which act on behalf of the States in accordance with 23 U.S.C. 145, 302, and 23 Code of Federal Regulations (CFR) 1.3. The Pilot Program will test the impact of flexible Federal share funding on project delivery efficiency and effectiveness.
In accordance with 23 U.S.C. 120(l)(2)(C)(i), applications must include the information below. Incomplete applications will not be considered. The FHWA may ask any applicant to supplement data in its application but expects the applications to be complete upon submission. The FHWA will expect State DOTs to provide additional information described in the participant selection section, if requested. Applications must include the following information for it to be considered for the Pilot Program:
(1) Describe and quantify how participation in the Pilot Program will accelerate project delivery and improve efficiency and accessibility to the benefits derived from the Federal-aid highway program, generally and specifically regarding program administration in the applicant's State. The benefits discussion must address the anticipated overall program and project delivery cost and scheduled savings. The State DOT should identify administrative impediments or delays associated with the current project delivery and oversight process that would be modified or eliminated under the Pilot Program.
(2) Describe and quantify how participation in the Pilot Program will provide added value to the State DOT, FHWA, project delivery and the communities served by the transportation projects.
(3) Describe how the State DOT will evaluate the effects of applicable Federal-aid project delivery requirements on the State DOT's project delivery capacity under the Pilot Program. In doing so, the State DOT should consider comparing the costs and efficiency of project delivery using historical information under the authorized Federal share requirements and using the Pilot Program flexibilities.
This information collection has been approved by Office of Management and Budget (OMB) under #2125-0670. 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 Paperwork Reduction Act, unless that collection displays a currently valid OMB control number.
This section outlines the process and factors that FHWA will use to evaluate and select applicants to participate in the Pilot Program. The FHWA will use the following rating factors, each of which is of equal importance, for the selection of Pilot Program participants.
(1) Anticipated project delivery cost savings.
(2) Anticipated project delivery time savings.
(3) Added value of the proposed approaches to the State DOT, FHWA, project delivery and the communities served by the transportation projects (
(4) Evaluation of the State DOT's financial management (
(5) Compliance assessment of the State DOT's financial controls and project delivery program in accordance with government-wide requirements in 2 CFR 200.302-303.
After determining eligibility, FHWA will evaluate proposals and make selections using the rating factors described above to determine the applications that are in the best interest of FHWA. The FHWA will then select the State DOTs eligible as Pilot Program participants. The FHWA will accept proposals throughout the duration of the Pilot Program.
A State DOT selected to participate in the Pilot Program will assume responsibility for compliance with all procedural and substantive Federal requirements as would apply to the Pilot Program. These requirements include Pilot Program specific reporting, regular Federal-aid reporting, construction administration, financial administration, performance management, and all other applicable Federal requirements, unless FHWA determines that such assumption of responsibility for one or more of the
Each participating State DOT will enter into a memorandum of agreement (MOA) with FHWA. The MOA will require the State DOT to provide to FHWA any information that FHWA considers necessary to ensure that the State DOT carries out the requirements of the Pilot Program. The MOA shall not extend beyond September 30, 2026.
To ensure compliance with the Pilot Program by participating State DOTs, FHWA may conduct audits, reviews, and assessments during the Pilot Program. Such audits will be in addition to any of FHWA's other stewardship and oversight responsibilities relating to the Pilot Program, as well as any other projects or other activities carried out under the Pilot Program.
The FHWA will assess the partnership developed under this Pilot Program in accordance with existing requirements. The FHWA may terminate a MOA with State or a Pilot Program within a State at any time for failure to comply with requirements of 23 U.S.C. 120(l) or for any reason consistent with 2 CFR 200.339, including, but not limited to, inadequate performance or resources to administer the Pilot Program. The participating State DOT may also terminate the Pilot Program upon FHWA's receipt of a 90-day notice from a State DOT.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Bradley Smith, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or Assistant Director for Sanctions Enforcement, Compliance & Analysis, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On January 22, 2024, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authority listed below.
Internal Revenue Service (IRS), Treasury.
Notice.
This notice is provided in accordance with IRC section 6039G of the Health Insurance Portability and Accountability Act (HIPAA) of 1996, as amended. This listing contains the name of each individual losing United States citizenship (within the meaning of section 877(a) or 877A) with respect to whom the Secretary received information during the quarter ending September 30, 2023. For purposes of this listing, long-term residents, as defined in section 877(e)(2), are treated as if they were citizens of the United States who lost citizenship.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. ch. 10, that a meeting of VA's National Academic Affiliations Council (NAAC) will be held on March 12, 2024-March 13, 2024, at The American Legion, 7th Floor, 1608 K Street NW, Washington DC. The meeting sessions are open to the public.
The purpose of the NAAC or “Council” is to advise the Secretary on matters affecting partnerships between VA and its academic affiliates.
On March 12, 2024, the Council will convene an open session and receive presentations and updates beginning at 9 a.m. eastern standard time (EST). The agenda will include updates from NAAC's Diversity in the Healthcare Workforce Subcommittee, and the Strategic Academic Advisory Council (SAAC). The Council will receive presentations including an introduction to Artificial Intelligence in the VA, updates on the topics of STRONG Veterans Act, CHIP IN for Veterans Act: National Project Updates, and PACT ACT, Section 704 Updates—Sole Source Leasing from Academic Affiliates. The meeting will adjourn that day at 4:30 p.m. EST.
On March 13, 2024, the Council will convene an open session and receive presentations and updates beginning at 9 a.m. EST. The agenda will include a presentation on Federal Supremacy in the VA. The Council will also receive updates from MISSION ACT, Section 403 Implementation and VHA Electronic Health Record Modernization: Roll-Out and Governance. The Council will receive public comments from 11:20 a.m. to 11:50 a.m. EST. The meeting will adjourn at 12 p.m. EST.
Interested persons may attend and present oral statements to the Council on March 13th during the public comment period. A sign-in sheet for those who want to give comments will be available at the meeting. Individuals who speak are invited to submit a 1-2-page summary of their comments at the time of the meeting for inclusion in the official meeting record. Oral presentations will be limited to five minutes or less, depending on the number of participants. Interested parties may also provide written comments for review by the Council prior to the meeting, or at any time via email to
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. Ch. 10, that the Advisory Committee on Minority Veterans will meet on February 20-22, 2024, at the Department of Veterans Affairs, 810 Vermont Avenue NW, Conference Room 230, Washington, DC. The meeting sessions will begin and end as follows:
This meeting is open to the public.
The purpose of the Committee is to advise the Secretary on the administration of VA benefits by the Department for Veterans who are minority group members, by reviewing reports and studies on compensation, health care, rehabilitation, outreach, and other benefits and services administered by the Department. The Committee makes recommendations to the Secretary regarding such activities.
On February 20th, the Committee will receive briefings and updates from the Veterans Health Administration, Veterans Benefits Administration, National Cemetery Administration, Veterans Experience Office, and Center for Women Veterans. On February 21st, the Committee will receive briefings and updates from the National Association of State Directors of Veterans Affairs. On February 22nd, the Committee will receive briefings and updates from the Office of Equity Assurance and the Office of Public and Intergovernmental Affairs. The Committee will receive public comments from 11:45 a.m. to 11:55 a.m. EST. Afterwards, the Committee will continue to work on their report.
A sign-in sheet for those who want to give comments will be available at the meeting. Individuals who speak are invited to submit a 1-2-page summary of their comments at the time of the meeting for inclusion in the official meeting record. Members of the public may also submit written statements for the Committee's review to Mr. Dwayne E. Campbell, Department of Veterans Affairs, Center for Minority Veterans (00M), 810 Vermont Avenue NW, Washington, DC 20420, or email at
Employee Benefits Security Administration (EBSA), Labor.
Notice of proposed rulemaking.
This document contains a proposed rule that would implement the statutory prohibited transaction exemption under section 4975 of the Internal Revenue Code (Code) for certain automatic portability transactions. Section 120 of the SECURE 2.0 Act of 2022 amended Code section 4975 to add a statutory exemption for the receipt of fees and compensation by an automatic portability provider for services provided in connection with an automatic portability transaction. Specifically, Code section 4975(d)(25) provides prohibited transaction relief if the conditions set forth in Code section 4975(f)(12) are met. The Department of Labor is proposing this regulation because, with certain exceptions not relevant here, section 102 of Reorganization Plan No. 4 of 1978 transfers the authority of the Secretary of the Treasury to issue certain regulations, rulings, opinions, and exemptions under Code section 4975 to the Secretary of Labor. Consistent with this transfer of authority, Congress authorized and directed the Department of Labor to issue regulations under Code section 4975 to implement provisions of section 120 of the SECURE 2.0 Act.
Comments on these proposed rules are due on March 29, 2024.
EBSA encourages interested persons to submit their comments on these proposed rules online. You may submit comments, identified by RIN 1210-AC21, by either of the following methods:
Scott Ness, Office of Regulations and Interpretations, Employee Benefits Security Administration, (202) 693-8500 or Joseph Brennan, Office of Exemption Determinations, Employee Benefits Security Administration, (202) 693-8456. These are not toll-free numbers.
Section 120 of the SECURE 2.0 Act of 2022 (SECURE 2.0 Act)
Under the Code, qualified retirement plans are permitted to include provisions requiring an immediate distribution to a separating participant without the participant's consent if the present value of the participant's vested accrued benefit does not exceed $5,000
Code section 401(a)(31)(B) provides that a trust will not constitute a qualified trust unless the plan of which the trust is a part provides that: (1) if a mandatory distribution of more than $1,000 is to be made; and (2) the participant does not elect to have such distribution paid directly to an eligible
The Secretary of Labor (the Secretary) issued regulations in 2004 providing safe harbors for such automatic rollovers of mandatory distributions from a plan subject to Title I of the Employee Retirement Income Security Act (ERISA) which provide that (1) a plan administrator's designation of an IRA to receive the automatic rollover and (2) the initial investment choice for the rolled-over funds will be deemed to satisfy the fiduciary responsibility provisions of ERISA section 404(a) if the safe harbor requirements are met.
An automatic portability transaction as defined in Code section 4975(f)(12)(A)(i) builds on the portability concept and is part of a larger framework for facilitating the movement of assets from one tax-favored retirement plan to another. The overall terms and details of an automatic portability framework would generally be memorialized in contracts with recordkeepers, plan sponsors, and the automatic portability provider. A comprehensive automatic portability framework includes three key components. First, there is a “transfer-out” plan that initiates a mandatory distribution. Second, there is an IRA established in accordance with Code Section 401(a)(31)(B) (a Default IRA) to receive (via a rollover) and hold the distributed funds.
To roll in funds from an IRA to the transfer-in plan, the transfer-in plan must permit such roll-ins. Additionally, an automatic portability provider must have access to records for the Default IRA and transfer-in plan sufficient to make a match. The general concept of “locate, match, and transfer” involves making queries of cooperating recordkeepers' systems to determine if a Default IRA owner has become a participant in an employer-sponsored retirement plan through re-employment (
When an automatic portability provider transfers assets from an IRA to a new employer's plan without the IRA owner's affirmative consent, the automatic portability provider is exercising fiduciary discretion for purposes of the prohibited transaction provisions of the Code.
The Department additionally stated in AO 2018-01A that, unlike the Department's automatic safe harbor regulations,
Section 120 of the SECURE 2.0 Act added a statutory exemption in Code section 4975 that allows an automatic portability provider to receive a fee in connection with executing an automatic portability transaction that largely mirrors the relief the Department granted RCH in PTE 2019-02. The availability of the statutory exemption to all automatic portability providers that meet its requirements generally eliminates the need for RCH, and other automatic portability providers, to request an administrative PTE for relief similar to the relief the Department granted in PTE 2019-02. Specifically, the statutory exemption in Code section 4975(d)(25) provides a conditional prohibited transaction exemption from the restrictions in Code sections 4975(c)(1)(D) and (E) for an automatic portability provider to receive fees and compensation for services provided “
Code section 4975(f)(12)(A)(i) generally defines an automatic portability transaction as a transfer of assets from a Default IRA
Notably, the SECURE 2.0 Act amendment to the Code does not specifically include any references to a transfer-out plan (
As noted, Code section 4975(d)(25) provides prohibited transaction relief if the conditions set forth in Code section 4975(f)(12) are met. Specifically, Code section 4975(f)(12) and this proposed regulation require:
• the automatic portability provider to acknowledge its fiduciary status with respect to the IRA;
• that the automatic portability provider's fees do not exceed reasonable compensation;
• restrictions to be placed on an automatic portability provider's use of plan participant and IRA owner data;
• participation in the program to be available on the same terms for all eligible transfer-in plans;
• the automatic portability provider to conduct at least monthly searches for transfer-in plan accounts;
• the automatic portability provider to timely execute automatic portability transactions;
• the automatic portability provider's discretion to affect the timing or amount of the transfer pursuant to an automatic portability transaction to be limited; and
• the automatic portability provider to retain records demonstrating it is complying with the exemption conditions, conducting an annual audit, and maintaining a website with a list of participating recordkeepers and the automatic portability provider's fees.
Section 120 of the SECURE 2.0 Act also provides that, not later than 12 months after the date of its enactment, the Secretary shall issue such guidance as may be necessary to carry out the purposes of the amendments made by section 120, including regulations or other guidance which:
1. Require an automatic portability provider to provide a notice to individuals on whose behalf the default IRA is established in advance of the pre-transaction notice;
2. Require an automatic portability provider to disclose to a responsible plan fiduciary information about the
3. Require plans involved in the automatic portability transaction to fully disclose fees related to an automatic portability transaction in its summary plan description or summary of material modifications;
4. Require plans involved in the automatic portability transaction to invest amounts received on behalf of a participant pursuant to an automatic portability transaction in the participant's current investment election under the plan or, if no election is made or permitted, in the plan's qualified default investment alternative under the Department's Qualified Default Investment Alternative (QDIA) regulations (
5. Prohibit or restrict the receipt or payment of third-party compensation (other than a direct fee paid by a plan sponsor which is in lieu of a fee imposed on an IRA owner) by an automatic portability provider in connection with an automatic portability transaction;
6. Prohibit exculpatory provisions in an automatic portability provider's contracts or communications with individuals disclaiming or limiting liability in the event that an automatic portability transaction results in an improper transfer;
7. Require an automatic portability provider to take actions necessary to reasonably ensure that participant and beneficiary data is current and accurate;
8. Limit the automatic portability provider's use of data related to automatic portability transactions for any purpose other than the execution of such transactions or locating missing participants, except as permitted by the Secretary;
9. Provide for corrections procedures in the event an auditor determines the automatic portability provider was not in compliance with the statute and related regulations, including deadlines, supplemental audits, and corrective actions which may include a temporary prohibition from relying on the statutory exemption;
10. Ensure that participants and beneficiaries receive all the required notices and disclosures; and
11. Make clear that the statutory exemption applies solely to the automatic portability transactions described in the statutory exemption, and, to the extent the Secretary deems necessary or advisable, specify how the application of the exemption relates to or coordinates with other statutory provisions, regulations, and administrative guidance.
Some interested stakeholders have communicated to the Department that they have already developed products and established procedures for an automatic portability service and that they do not believe any further guidance from the Department is necessary to effectuate the purpose of section 120 of the SECURE 2.0 Act. However, the Department believes that regulations, as compared to some other form of guidance, are needed to implement section 120(c) of the SECURE 2.0 Act in a manner that addresses and reinforces the consumer protections in the above list of statutory conditions and requirements. Furthermore, the Department believes that these proposed regulations will provide a broader cross-section of interested and affected entities with the opportunity to formally comment on the proposal, whether implementing regulations are necessary, and whether elements of the proposed requirements should be modified or eliminated to best support Congress' intent in passing the new statutory exemption.
The Department is proposing that any final rule adopted based on this proposal would be effective 60 days after publication in the
As noted above, section 120 of the SECURE 2.0 Act directed the Secretary to issue such guidance as may be necessary to carry out the purposes of the amendments made by section 120 no later than 12 months after the date of the enactment of the Act. Compliance with the conditions and requirements in Code sections 4975(d)(25) and 4975(f)(12) is an independent statutory obligation for parties seeking their prohibited transaction relief that is not dependent upon the issuance of regulations or guidance by the Department. For the period from publication of this proposed regulation until after the Department issues a final regulation or other applicable administrative guidance, automatic portability providers and plan fiduciaries are expected to comply with the requirements of Code sections 4975(f)(12) and 4975(d)(25) using a good faith, reasonable interpretation of the law taking into account the list of consumer protection conditions and requirements in section 120(c) of the SECURE 2.0 Act.
Certain provisions of ERISA Title I, such as the provisions on prohibited transactions, have parallel provisions enacted in Title II of ERISA and codified in the Code. When ERISA was passed,
Although the new automatic portability transaction prohibited transaction exemption appears only in Code section 4975 and directly pertains to transactions involving IRAs, the Secretary of Labor still retains regulatory authority over certain prohibited transaction provisions under Code section 4975, as provided in Reorganization Plan No. 4 of 1978. Consistent with that authority, section 120 of the SECURE 2.0 Act directs the Secretary of Labor to issue regulations and guidance related to the new statutory exemption for automatic portability transactions.
Therefore, the proposed regulation would add a new § 2550.4975f-12 to the Department's fiduciary regulations at 29 CFR part 2550. The proposed regulation tracks the requirements under Code section 4975(f)(12) that must be satisfied in order for the automatic portability transaction to be covered by the statutory prohibited transaction exemption in Code section 4975(d)(25). Paragraph (a) describes the general scope of the statutory exemption and regulation. Paragraph (b) sets forth the conditions an automatic portability provider must satisfy for a transaction to qualify as an “automatic portability transaction” and for the exemption to apply. Paragraph (c) sets forth proposed annual audit and correction procedure requirements. Paragraph (d) sets forth website requirements that must be met for automatic portability providers to satisfy the statutory exemption and proposed regulation. Paragraph (e) describes prohibitions on the automatic portability provider's use of exculpatory provisions in contracts or communications disclaiming or limiting their liability in the event an improper transfer of assets in connection with an automatic portability transaction occurs. Paragraph (f) sets forth the record retention requirement automatic portability providers must meet to satisfy the statutory exemption and proposed regulation. Paragraph (g) defines certain terms used in the proposed regulation.
The relief provided by Code section 4975(d)(25) and the proposed exemption is limited to Code sections 4975(c)(1)(D) and (E) for the receipt of fees and compensation by an automatic portability provider for services provided in connection with an automatic portability transaction and Code section 4975(c)(1)(F) for the receipt of fees by an automatic portability provider from a plan sponsor in lieu of fees imposed on an IRA owner. Neither the statutory exemption in Code section 4975(d)(25) nor the proposed regulation contains an exemption for other acts described in Code section 4975(c)(1)(D) and (E) (relating to the transfer to, or use by or for the benefit of, a disqualified person of the income or assets of a plan and to fiduciaries dealing with the income or assets of plans in their own interest or for their own account) that are not in connection with the automatic portability transaction. Additionally, neither the statutory exemption in Code section 4975(d)(25) nor the proposed regulation contains an exemption for acts described in Code section 4975(c)(1)(F) (relating to fiduciaries receiving consideration for their own personal account from any party dealing with a plan in connection with a transaction involving the income or assets of the plan) except for the limited relief for a fee paid by a plan sponsor, noted above. Such acts described in Code sections 4975(c)(1)(D), (E), and (F) are separate transactions not described in Code section 4975(d)(25). Further, neither the statutory exemption in Code section 4975(d)(25) nor this proposed regulation contains an exemption from other provisions of the Code, such as section 401, or other provisions of law which may impose requirements or restrictions relating to the transactions that are exempt under Code section 4975(d)(25). As defined in Code section 4975(f)(12)(A)(ii) and in this proposed regulation, an automatic portability provider is a person, other than an individual, who executes the automatic portability transaction on the same terms to all transfer-in plans and Default IRAs that use the provider.
The Department interprets the “in connection with” language from Code section 4975(d)(25) to include only those services and related fees and compensation that would not otherwise occur or be incurred if not for the automatic portability transaction or anticipation of a future automatic portability transaction. The Department requests comments on whether additional specificity regarding the types of services that are covered by Code section 4975(d)(25) should be included, for example, by a definition added to the regulations that identifies the types of services. Further, if a commenter believes more specificity would be helpful, the Department requests that the commenter include a proposed definition, list, or other identification of the services that should be covered.
Code section 4975(f)(12)(B)(i) and this proposed regulation requires an automatic portability provider to acknowledge that it is a fiduciary with respect to the IRA in an automatic portability transaction.
Subject to two exceptions described below, Code section 4975(f)(12)(B)(ii)(I) and this proposed regulation permit an automatic portability provider to receive fees and compensation for services provided in connection with the automatic portability transaction, provided that the fees and compensation do not exceed reasonable compensation. The proposed regulations incorporate the existing standard regarding reasonable compensation for the provision of services found at 26 CFR 54.4975-6(e).
This proposed regulation mirrors the statutory text by requiring the automatic portability provider to disclose to a responsible plan fiduciary of the transfer-in plan the information that a service provider to the plan would be required to disclose under 29 CFR 2550.408b-2(c). For purposes of this requirement, the disclosures would relate to the automatic portability provider's services as an automatic portability provider and not other services that may be provided. For purposes of this disclosure requirement, the automatic portability provider will be considered to be a “covered service provider” under 2550.408b-2(c)(1)(iii)(A) and (B) providing services as a fiduciary and as a recordkeeper. Since the automatic portability provider would generally be precluded from receiving third-party compensation under other provisions of the proposal, the Department does not believe the provisions of 2550.408b-2(c) related to a covered service provider under 2550.408b-2(c)(1)(iii)(C)—“other services for indirect compensation”—would be relevant. The Department seeks comments on whether there are particular compliance issues under 2550.408b-2(c) for automatic portability providers that the Department should specifically address in a final rule.
The statute prohibits an automatic portability provider from receiving any fees or compensation in connection with an automatic portability transaction involving a plan which is sponsored or maintained by the automatic portability provider. In other words, the automatic portability provider may execute such transactions, but it may not receive fees for doing so. In the Department's view, the statutory reference to the automatic portability provider in this circumstance should be read to include any affiliates of the automatic portability provider. Accordingly, paragraph (b)(2)(iv) of the proposed regulation mirrors the statutory provision by prohibiting an automatic portability provider from receiving any fees or compensation in connection with an automatic portability transaction involving a plan that is sponsored or maintained by the automatic portability provider but includes plans maintained by any of the automatic portability provider's affiliates.
Section 120(c)(5) of the SECURE 2.0 Act provides the Secretary with the regulatory authority to prohibit or restrict the receipt or payment of third-party compensation (other than a direct fee paid by a plan sponsor that is in lieu of a fee imposed on an IRA owner) by an automatic portability provider in connection with an automatic portability transaction. The proposed regulation includes text that mirrors the statutory text allowing a direct fee to be paid by a plan sponsor if it is in lieu of a fee imposed on an IRA owner. The proposed regulation includes one exception to the general restriction on third-party compensation. Specifically, under the proposal, an automatic portability provider would be able to share a portion of its fee or compensation with another automatic portability provider as long as the overall fee paid, directly or indirectly, by the plan or IRA does not increase as compared to the fees disclosed in the description provided to the plan administrator and in the initial enrollment notice provided to the IRA owner.
The third-party compensation restriction in the proposed regulation is limited to fees and compensation in connection with the automatic portability transaction and would not prevent an automatic portability provider from receiving fees for services provided to an IRA or employer-sponsored retirement plan that are in addition to services provided in connection with the automatic portability transaction. However, the prohibited transaction relief provided in Code section 4975(d)(25) applies only to fees and compensation received in connection with the automatic portability transaction. The automatic portability provider would need to rely upon other statutory or administrative exemptions if it receives fees for providing additional services that involve prohibited transactions.
Code section 4975(f)(12)(B)(iii) prohibits an automatic portability provider from using data it obtains in connection with automatic portability transactions for any purpose other than to execute the automatic portability transactions or locate missing participants as part of its automatic portability service, except as permitted by the Secretary. The automatic portability provider is specifically prohibited by the statute from marketing or selling data relating to the IRA or to the plan participants. Paragraph (b)(3) of the proposed regulation parallels the statutory language by not permitting the use of data for any purpose other than the execution of automatic portability transactions or locating missing participants. For purposes of the restriction on marketing or selling IRA data, the Department interprets this to include specific data regarding the IRA owner. The Department is not proposing any exceptions to this restriction. However, the Department welcomes comments on whether the regulations should permit use of data for other purposes, and, if it should, what those other purposes would be, whether allowing use of data for those purposes would provide a benefit to IRA owners and plan participants, and what regulatory protections should be applied to that use of the data.
In support of the obligation to limit use of data, the proposed regulation provides that the automatic portability provider must take steps that a prudent fiduciary would take to safeguard plan participant and IRA data in its
Paragraph (b)(4) of this proposed regulation parallels Code section 4975(f)(12)(B)(iv) by requiring as a condition of the availability of the exemption that the automatic portability provider offer automatic portability transactions on the same terms to any transfer-in plan. This proposed requirement does not mean that fees can never change. Rather, at any given time, the fees paid for automatic portability transactions should be the same for any transfer-in plan that engages the automatic portability provider.
Based on the general regulatory authority granted to the Secretary in section 120(c) of the SECURE 2.0 Act, the Department is also proposing that open participation would require that the automatic portability provider not restrict or limit the ability of an employer-sponsored retirement plan, IRA provider (including trustees under Code section 408(a), custodians under Code section 408(h), or issuers under Code section 408(b)), or recordkeeper to engage other automatic portability providers to execute automatic portability transactions. In proposing this requirement, the Department recognizes that numerous service providers that have existing systems for automatic rollovers of mandatory distributions may want to supplement their services with automatic portability transaction features. Plan fiduciaries or service providers may determine that there are cost-effective ways to integrate services of more than one automatic portability provider to increase the likelihood of successfully locating participant funds for transfer into the transfer-in plan.
The Department has an obligation under the statute to monitor and enforce the audit reporting requirements for automatic portability providers relying on the exemption, including deadlines for submitting the audit report to the Department. Accordingly, under the proposed regulation, within 90 calendar days of the date that the automatic portability provider begins operating an automatic portability transaction program that is intended to rely on prohibited transaction relief provided by section 4975(d)(25), the automatic portability provider must notify the Secretary at
In the Department's view, to comply with the summary plan description (SPD) content requirements in 29 CFR 2510.102-2 that the SPD “shall be sufficiently comprehensive to apprise the plan's participants and beneficiaries of their rights and obligations under the plan,” participating transfer-out plans and transfer-in plans subject to ERISA's SPD requirements must include a description of the automatic portability program in the plan's SPD. Further, section 120(c)(3) of the SECURE 2.0 Act provides the Secretary with authority to require a transfer-in plan to fully disclose fees related to an automatic portability transaction in its SPD or summary of material modifications (SMM) to the extent an SMM is used to fulfill this SPD disclosure requirement.
The Department's existing regulatory safe harbors for automatic rollovers by the transfer-out plan already require plan administrators for ERISA Title I plans to provide participants with an SPD or SMM that describes the plan's automatic rollover provisions. The SPD or SMM also must include: (1) an explanation that the mandatory distribution will be invested in an investment product designed to preserve principal and provide a reasonable rate of return and liquidity; (2) a statement indicating how fees and expenses attendant to the IRA will be allocated (
The Department proposes a requirement that the automatic portability provider provide the administrator of participating plans with a description of the automatic portability program, including fees and expenses, that the administrator could use in fulfilling its SPD obligations, as relevant. The Department requests comments on whether the final rule should set forth specific content requirements for an automatic portability provider model notice.
This proposed regulation specifies two notices an automatic portability provider is required to send to IRA owners before an automatic portability transaction is executed and one notice after the automatic portability transaction is executed, as described below.
Section 120(c)(1) of the SECURE 2.0 Act authorizes the Secretary to require the automatic portability provider to provide a notice to IRA owners in advance of the pre-transaction notice specified in Code section 4975(f)(12)(B)(v). Consistent with this authority, this proposed regulation includes a requirement that an automatic portability provider provide an “initial enrollment notice” to the IRA owner no later than 15 calendar days after the IRA is enrolled in an arrangement that includes an automatic portability transaction component. The Department assumes that the date of enrollment will generally be the date that an IRA is established in connection with a mandatory distribution. However, for IRAs that were established
The Department requests comments regarding the 15-calendar-day timeframe for sending the initial enrollment notice, particularly if the automatic portability provider is not the provider of the IRA. In this regard, the Department requests comments about the process by which IRAs that are not established with or provided by the automatic portability provider would engage an automatic portability provider and how the automatic portability provider would ensure that such a notice would be provided.
The Department proposes that the initial enrollment notice would include a variety of information regarding the nature of the automatic portability transaction and additional aspects of the IRA arrangement that are required to be included in the pre-transaction notice, discussed below. The Department anticipates that this notice requirement could be satisfied by including the information specified in proposed paragraph (b)(5)(iv) in the notice required under Code section 401(a)(31)(B) upon the establishment of a Default IRA.
Paragraph (b)(5)(iv) of the proposed regulation incorporates the statutory provisions of Code section 4975(f)(12)(B)(v) requiring the automatic portability provider to provide a pre-transaction notice to the IRA owner at least 60 days before an automatic portability transaction occurs with information describing the automatic portability transaction, fees to be received in connection with the transaction, the right to elect not to participate in an automatic portability transaction, distribution options, deadlines for making elections, a telephone number for the automatic portability provider, and the right to and procedures for designating a beneficiary.
The proposed regulation provides additional clarification regarding the timing of the pre-transaction notice by requiring that the notice be sent no earlier than 90 days in advance of the automatic portability transaction. This is intended to ensure that the notice is sent sufficiently close to the actual execution of the automatic portability transaction so that the assets of the IRA do not remain there for an unreasonable period waiting to be rolled-in to the transfer-in plan.
The Department seeks comments on the proposed pre-transaction notice and whether additional information should be required. The Department is particularly interested in comments regarding whether specific information should be provided to the IRA owner explaining the significance of transferring assets into an employer-sponsored plan as opposed to retaining those assets in an IRA, as well as any plain language examples to help the IRA owner better understand the various aspects of an automatic portability arrangement. Relatedly, the Department requests comment on whether model disclosures or model language for the pre-transaction notice would be helpful and encourages commenters who support a model disclosure or model language, model charts, or other formats submit suggestions for the model language, chart or format they believe would help ensure readability and accessibility for the target audience. The Department also requests comment on whether a final rule should specify a minimum amount of time that the IRA owner has to make an election to opt out of the automatic portability transaction,
This post-transaction notice, which would occur after a transfer-in plan receives an individual's IRA funds, is the last notice that the automatic portability provider would be required to provide to the IRA owner or plan participant. Paragraph (b)(5)(v) of this proposed regulation incorporates the statutory requirements in 4975(f)(12)(B)(vi). The statute requires that no later than three business days after the completion of an automatic portability transaction, the automatic portability provider shall provide notice to the IRA owner of the actions taken by the automatic portability provider with respect to the IRA. The statute also requires the notice to include all relevant information regarding the location and amount of any transferred assets, a statement of fees charged against the IRA or transfer-in plan account in connection with the transfer, and a contact phone number for the automatic portability provider.
The proposed regulation provides some minor clarifying language intended to explain the Department's view regarding the information needed to satisfy the statutory language. For instance, the proposed regulation adds that (1) a description of the actions taken by the automatic portability provider specifically includes that the individual was matched with an account in a new employer plan, (2) relevant information regarding the amount of transferred assets includes the name of the employer and name of the plan where the assets were transferred, and (3) the telephone number required by the statutory text is a customer service telephone number.
The Department requests comment on whether model disclosures or model language for the post-transaction notice would be helpful and encourages commenters to submit language or formats they believe would help ensure readability and accessibility for the target audience.
The Department understands that an automatic portability provider may also be the designated provider of Default IRAs for a transfer-out plan and may be providing notices required by the Code and/or the Department's Safe Harbor Regulation. To the extent that the automatic portability provider has been engaged to provide notices to participants in connection with mandatory distributions on behalf of employer-sponsored plans, the notices and disclosures to individuals required by the statutory exemption and this proposed regulation would not have to be provided separately. However, the automatic portability provider should take care to ensure that the information required by the notice provisions to individuals in this proposed regulation is clearly displayed to reduce possible confusion with other provided information.
Paragraph (b)(5)(vi) of this proposed regulation parallels the statutory text of Code section 4975(f)(12)(B)(vii) by requiring all required notices to participants and IRA owners to be written in a manner calculated to be understood by the average person and not include inaccurate or misleading statements. The proposed regulation includes provisions intended to clarify and explain this requirement. In the Department's view, the idea of an “average person” in the context of understanding the notices under the exemption should be read as the average person receiving the notices rather than an abstract concept of an average person at large. Accordingly, the proposed
The proposed regulation would require that notices and disclosures to participants and IRA owners be provided in a culturally and linguistically appropriate manner in certain situations. The proposal essentially adopts the ACA standard for group health benefit notices.
Section 120(c)(10) of the SECURE 2.0 Act authorizes the Secretary to issue regulations to ensure that the participants and IRA owners, “in fact, receive all required notices and disclosures.” Furthermore, Section 120(c)(7) of the SECURE 2.0 Act grants the Secretary regulatory authority to require the automatic portability provider “to take actions necessary to reasonably ensure that participant and beneficiary data is current and accurate.” To this end, paragraph (b)(5)(vii) of the proposed regulation would require the automatic portability provider to adopt and implement prudent policies and procedures to ensure that it obtains individual participant and IRA owner data necessary to effectively administer the automatic portability program and that the participant and IRA owner data in its possession or control is current and accurate. The proposed regulation also specifies that notices and disclosures to participants and IRA owners must be made using methods that satisfy the disclosure requirements in 29 CFR 2520.104b-1(b). The regulation at 29 CFR 2520.104b-1(b) provides a general standard that covered materials shall be furnished using “measures reasonably calculated to ensure actual receipt of the material by plan participants, beneficiaries and other specified individuals.” The Department requests comments on how an automatic portability provider would handle undeliverable mail and whether specific additional regulatory protections should be established for individuals with respect to whom the automatic portability provider has received returned mail. The Department also invites comments on whether the regulation should specifically address electronic disclosure of notices and disclosures under the exemption, including how to deal with undeliverable electronic notices.
The proposed regulation parallels the Code section 4975(f)(12)(B)(viii) requirement that the automatic portability provider query on at least a monthly basis whether any individual with an IRA has an account in a transfer-in plan. The Department believes that verification of the information used in connection with performing searches is important to carrying out the purposes of the statutory exemption. Accordingly, under the proposal, the automatic portability provider must perform ongoing participant address validation searches via automated checks of (1) National Change of Address records, (2) two separate commercial locator databases, and (3) any internal databases maintained by the automatic portability provider. If a valid address is not obtained from the automated checks, the automatic portability provider must also perform a manual internet-based search. The proposal would require these verification steps to be performed at least twice in the first year an account is entered into the automatic portability provider system and once a year thereafter. The Department invites comments on whether additional or different verification steps should be required and on whether a final regulation should specifically list other information to be used in the searches that may aid in validating a match, for example, beneficiary information. In the Department's view, the statutory exemption's description of the search requirement envisions the automatic portability provider taking reasonable steps to verify the accuracy of the information used for conducting the required searches.
The Department requests comment on whether the final regulations should permit the query to be performed by a partnering recordkeeper in addition to the automatic portability provider and how the automatic portability provider would share information with recordkeepers for purposes of running the query. If the Department permits this under the final regulations, the Department anticipates that the ultimate obligation to ensure the required searches are performed would remain with the automatic portability provider. The Department also requests comment on whether there should be specific parameters or obligations for partnering recordkeepers if they are permitted to run the queries. Finally, if any commenter believes partnering recordkeepers should be permitted to run queries, the Department requests any additional information that would support the need and rationale for permitting this under a final regulation.
The Department believes proper monitoring of automatic portability transactions by the transfer-in plan is also critical to ensuring the successful execution of the transactions, and, accordingly, the proposal includes a monitoring requirement. The Department believes general prudence obligations would require such monitoring but is including this
Code section 4975(f)(12)(B)(ix) requires timely execution of transfers by requiring the automatic portability provider to transfer the liquidated account balance of the IRA as soon as practicable. Paragraph (b)(8) of the proposed regulation incorporates the statutory text and includes provisions intended to clarify the statutory requirement. First, the proposal clarifies the timeliness of execution is measured from the date after the final deadline passes for the affected individual to affirmatively elect not to participate in the transaction, as specified in the pre-transaction notice. The proposed regulation also provides that the automatic portability provider must follow timeframes formally established in policies and procedures, discussed in more detail below. The proposal does not include a specific timeframe for what would be considered “as soon as practicable” but requests comments on whether the final rule should include such a specific timeframe or other clarification of the standard.
Code section 4975(f)(12)(B)(x) provides that the automatic portability provider will neither have nor exercise discretion to affect the timing or amount of the transfer pursuant to an automatic portability transaction other than to deduct the appropriate fees. Paragraph (b)(9) of the proposed regulation incorporates the statutory limitation on discretion and expands upon the statutory text by specifying that an automatic portability provider will be deemed to satisfy the limited discretion requirement if it establishes, maintains, and follows policies and procedures regarding the process for executing automatic portability transactions. The policies and procedures must set specific standards and timeframes that are equally applied to all automatic portability transactions. The Department is proposing the policies and procedures to operationalize the limited discretion standard in accordance with the general regulatory authority granted to the Secretary under section 120(c) of the SECURE 2.0 Act and the authority transferred to the Secretary under section 102 of Reorganization Plan No. 4 of 1978. The policies and procedures are intended to ensure that the automatic portability provider is acting in accordance with its obligations under the exemption and these regulations and consistently with the intent of the statutory exemption. The Department also believes the policies and procedures will ensure that there is appropriate operational documentation by the automatic portability provider to support the audit, described below.
The policies and procedures must, at a minimum, specifically and prudently address: (1) the process to ensure that transfer-in plans designate a plan official that will be responsible for monitoring transfers into the plan due to automatic portability transactions; (2) the process and timing for liquidating the assets of the Default IRA to cash and closing the IRA; (3) the process for verifying and validating that the correct fees are withdrawn from the Default IRA; (4) the process and timing for transmitting assets to the transfer-in plan; (5) verifying the assets were received by the transfer-in plan; and (6) sending all notices to plan participants or individuals on whose behalf a Default IRA is established as required in this proposed regulation.
Code section 4975(f)(12)(B)(xi) includes a requirement for an annual audit to be conducted in accordance with regulations promulgated by the Secretary. The statute requires that an audit be conducted that demonstrates compliance with Code section 4975(f)(12) and any regulations thereunder and that identifies any instances of noncompliance with the statute or such regulations. The statute requires the automatic portability provider to submit a copy of the auditor's report to the Secretary in such form and manner as specified by the Secretary.
After consideration, the Department is proposing that the audit be an independently conducted audit to best ensure that the automatic portability provider is executing automatic portability transactions in a manner that is consistent with ERISA and that promotes the retirement security of workers. An auditor will be considered independent if: (1) the auditor is a person or an entity that the automatic portability provider does not own or control, and (2) the auditor does not derive more than two percent of its annual revenue from services provided directly or indirectly to the automatic portability provider or any of its affiliates. In addition, the auditor must have the appropriate technical training and proficiency necessary to carry out the audit. The Department invites comments regarding the two percent threshold. The Department believes the two percent threshold supports a presumption of independence but requests comment with supporting rationale if affected entities believe a higher threshold should be permitted. Additionally, the Department requests comment on what additional protections commenters would propose to support one or more higher thresholds.
Paragraph (c) of this proposed regulation would also require the independent auditor to review the automatic portability provider's policies and procedures as well as representative samples of the required disclosures and related automatic portability transactions sufficient for the auditor to make the required audit determinations and findings. The findings must be memorialized in a written audit report, which would include the following: (1) the number of completed automatic portability transactions during the audit period; (2) whether the required notices met the timing and content requirements of these regulations; (3) whether the required notices were written and delivered in a manner reasonably designed to ensure that affected individuals would both receive and understand the notices; (4) whether any required notices were returned as undeliverable and what steps were taken by the automatic portability provider to address undeliverable notices; (5) whether the appropriate transfer-in plan accounts received all the assets due as a result of the automatic portability transactions; (6) a summary of all fees charged by the automatic portability provider (and any
Section 120(d) of the SECURE 2.0 Act requires the Secretary to provide periodic reports to Congress that include a variety of information related to automatic portability transactions and portability arrangements more generally. The Department envisions that most of the information required for this report to Congress will come from information included in the audit reports filed by automatic portability providers. Therefore, the Department is proposing that the written audit report would also include: (1) the number of automatic rollovers of mandatory distributions from qualified plans into Default IRAs that are included in the automatic portability program;
If the automatic portability provider does not have direct access to any information required to be included in the audit report, the automatic portability provider would be required, as a condition of its services, to obtain appropriate information from partnering recordkeepers and participating plans in their possession or control, on request from the automatic portability provider, so it can be provided to the independent auditor and incorporated into the audit report.
This proposed regulation would require the independent auditor to complete the audit within 180 calendar days following the annual period to which the audit relates. The automatic portability provider must then submit a copy of the written audit report to the Department at
Section 120(c)(9) specifically grants the Secretary authority to provide for correction procedures in the event the auditor determines the automatic portability provider was not in compliance with the statute and related regulations. To effectuate the intent of this provision, the Department is proposing three components for corrections.
First, the Department is providing an opportunity for an automatic portability provider to make certain self-corrections. Under paragraph (c)(9)(i), the Department would not consider a non-exempt prohibited transaction to have occurred due to a violation of the requirements of Code section 4975(f)(12) and these regulations with respect to a transaction, provided that either the violation does not result in investment losses to the Default IRA or the automatic portability provider made the IRA whole for any resulting losses. In order to self-correct in those situations, the automatic portability provider would be required to correct the violation and document the correction in writing within 30 calendar days of correction. The correction would only be permitted if it occurs no later than 90 calendar days after the automatic portability provider learned of the violation or reasonably should have learned of the violation. Finally, all instances of noncompliance and accompanying corrections would be required to be reported in writing to the auditor and the auditor would have to agree that the transaction did not result in investment losses or that the IRA was made whole. The Department solicits comments on whether specific criteria should be included in the final rule on measuring investment losses and make whole requirements.
The second component for corrections involves additional recommendations from the auditor. If the auditor determines that the automatic portability provider was not in compliance with any provision of Code section 4975(f)(12) or these regulations during the audit period, the auditor must identify the instances of noncompliance in the audit report along with its recommended corrections. An automatic portability provider would not be treated as having failed to comply with any provision of Code section 4975(f)(12) or these regulations, provided it corrects any instance of noncompliance identified by the auditor as soon as reasonably practicable according to the auditor's recommendations.
The Department believes that the first two components for corrections will provide an automatic portability provider with additional incentive to take the audit process seriously, timely identify and correct violations of Code section 4975(f)(12) and these proposed regulations, and use the audit process to correct deficiencies in the automatic portability provider's operations to avoid potential future violations,
The third and final component for corrections would involve the Secretary requiring an automatic portability provider to submit to supplemental audits and corrective actions if significant compliance issues are uncovered. The Department is proposing the following scenarios involving the automatic portability provider or an affiliate under which the Secretary may impose additional corrective actions: (1) engaging in a systematic pattern or practice of violating any provision of section 4975(f)(12) or an implementing regulation; (2) intentionally violating any provision of section 4975(f)(12) or an implementing regulation; (3) providing materially misleading information to the Secretary, Secretary of the Treasury, or the auditor in connection with automatic portability transactions; (4) a foreign or domestic criminal conviction involving or arising out of the conduct of the automatic portability program or any automatic portability transaction; or (5) a foreign (or foreign equivalent)
The proposed regulation in paragraph (d) parallels the statutory language in Code section 4975(f)(12)(B)(xii) requiring the automatic portability provider to: (1) maintain a website which contains a list of recordkeepers with respect to which the automatic portability provider carries out automatic portability transactions and (2) list all fees paid to the automatic portability provider. Under the proposed regulation the list would have to include the fees and the identity of the party or account that is paying the particular fee. The proposal also requires that the website include the number of plans and participants covered by each recordkeeper. The Department solicits comments on whether other documents or materials should be required to be posted on the website, for example, a copy of the independent auditor's audit report redacted as needed to protect confidential business information, if any, in the audit report.
Because the Department anticipates that automatic portability providers may include a range of other services and information, customer support features, and functionalities in addition to automatic portability transactions, the proposal would also require the website to display automatic portability transaction-related information in a way that differentiates that information from other information or elements of the website (
The Department intends that these website disclosures and additional parameters will make it easier for plan sponsors to independently assess the overall cost of an automatic portability arrangement in connection with signing up for an automatic portability transaction service covered by the statutory exemption and this regulation.
Section 120(c)(6) of the SECURE 2.0 Act specifically provides the Secretary with the authority to place limitations on exculpatory provisions due to an improper transfer of Default IRA assets. Therefore, the Department is proposing that the automatic portability provider may not include exculpatory provisions in its contracts disclaiming or limiting the automatic portability provider's liability in the event that the automatic portability transaction results in an improper roll-in to the transfer-in plan. However, this requirement would not prohibit disclaimers for liability caused by an error, misrepresentation, or misconduct of a party independent of the automatic portability provider and its affiliates, or damages arising from acts outside the control of the automatic portability provider. Section 120(c)(6) of the SECURE 2.0 Act does not specifically address other exculpatory provisions. The Department requests comments on whether the prohibition on exculpatory provisions should be broader and include violations of the prohibited transaction provisions in Code section 4975 generally and ERISA in connection with any conduct of the automatic portability provider or an affiliate that is subject to Title I.
This proposed regulation incorporates the statutory language in Code section 4975(f)(12)(B)(xi)(I) regarding record retention by requiring that an automatic portability provider maintain, for not less than six years, records sufficient to demonstrate compliance with the requirements of the statute and this proposed regulation and make them available to authorized employees of the Department and the Department of the Treasury within 30 calendar days of a written request. This proposal also includes clarifying language regarding the record retention requirement and its impact on the prohibited transaction relief provided by Code section 4975(d)(25), which clarifying language the Department has frequently included in administrative prohibited transaction exemptions. First, the proposal provides that no prohibited transaction will be considered to have occurred if, solely because of circumstances beyond the control of the automatic portability provider, the records are lost or destroyed before the six-year period ends (
The Department included three definitions in proposed paragraph (g). The proposed definition of “affiliate” is consistent with the Department's definition of affiliate in many other regulations.
The Department invites comments from interested persons on all facets of the proposed rule. Commenters are free to express their views not only on the specific provisions of the proposal as set forth in this document, but on any issues germane to the subject matter of the proposal. Comments should be submitted in accordance with the instructions at the beginning of this document.
Without limiting the generality of the above request for comments, the Department requests comments on whether the rule should include provisions that specially address issues related to IRA beneficiaries. The statutory provisions envision an automatic portability transaction as a transfer of assets “made from an individual retirement plan which is established on behalf of an individual and to which amounts were transferred under section 401(a)(31)(B)(i)” to an eligible employer-sponsored retirement plan in which “such individual is an active participant.” The statutory provisions do not expressly reference moving funds for a beneficiary from a default IRA to an employer-sponsored plan in which the beneficiary participates. The statutory provisions similarly require notices to “the individual on whose behalf the individual retirement plan . . . is established.” Nonetheless, the Department notes the recordkeeping provisions in the statute expressly reference the automatic portability provider taking steps to ensure it has accurate beneficiary information and the statutory provisions on the required Report to Congress call for separate identification of IRAs transferred to designated beneficiaries and IRAs for which a next of kin is being identified after the death of the IRA owner without a designated beneficiary. Accordingly, the Department is interested in comments on whether the final regulation should address specific beneficiary issues, and, if the commenter believes it should, the Department asks that the commenter identify the issue or issues and include recommendations on how the issue or issues should be addressed in the regulation.
The Department also specifically requests comments on exemptive relief for Default IRAs involving rollovers of mandatory distributions with a value of $1,000 or less. The proposal does not expressly include such mandatory distributions in light of the SECURE 2.0 Act amendment of Code section 4975 defining the term “automatic portability transaction” to mean a transaction in which mandatory distributions pursuant to Code section 401(a)(31)(B)(i) from an employer-sponsored retirement plan to an IRA established on behalf of an individual are subsequently transferred to an eligible employer-sponsored plan in which such individual is an active participant, after such individual has been given advance notice of the transfer and has not affirmatively opted out of such transfer. As noted elsewhere in this document, Code section 401(a)(31)(B)(i) refers to distributions of nonforfeitable accrued benefits the present value of which is in excess of $1,000 but less than or equal to $7,000. The Department confronted a similar issue in implementing section 657(c)(2)(A) of the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), which directed the Department to issue regulations providing safe harbors under which (1) a plan administrator's designation of an institution to receive the automatic rollover, and (2) the initial investment choice for the rolled-over funds would be deemed to satisfy the fiduciary responsibility provisions of section 404(a) of ERISA. Section 657 of EGTRRA also referenced Code section 401(a)(31)(B) automatic rollovers. However, in its final rule in 2004, the Department, in response to public comments, included mandatory distribution amounts of $1,000 or less noting that, although not described in Code section 401(a)(31)(B), tax-qualified retirement plans are permitted to distribute to a separating participant without the participant's consent provided the present value of the participant's vested accrued benefit did not exceed the maximum value at that time of $5,000.
The Department has examined the effects of this proposed rule as required by Executive Order 12866,
Under E.O. 12866 (as amended by Executive Order 14094), the Office of Management and Budget (OMB)'s Office of Information and Regulatory Affairs determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB. 58 FR 51735. As amended by Executive Order 14094, section 3(f) of Executive Order 12866 defines a “significant regulatory action” as a regulatory action that is likely to result
Executive Order 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; the regulation is tailored to impose the least burden on society, consistent with achieving the regulatory objectives; and in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. E.O. 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitative values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
When American workers change jobs, they often encounter frictions that result in reduced retirement savings in aggregate. This regulation will alleviate some of those frictions, resulting in more retirement savings, which will improve Americans' preparation for retirement. This is particularly beneficial given the wider context that many workers have insufficient retirement savings. Only 57 percent of households headed by 55-64 year olds held any retirement savings accounts in 2022, and the median amount in those accounts was $185,000.
Previous generations of American workers who had a retirement plan usually had a defined benefit (DB) pension plan that promised fixed payments to them upon retirement. An employee's retirement benefit under a DB plan often is based on a percentage of their final year's compensation multiplied by their total years of employment with the sponsoring employer.
In recent decades defined contribution (DC) plans have supplanted DB plans as the most prevalent type of pension plan provided to workers.
In the current retirement system where employer-sponsored DC plans are the primary vehicle available for employees to save for retirement, an employee separating from service with an employer may be suddenly confronted with an important financial decision regarding how to handle retirement assets they have accrued in their employer's DC plan. Making it simpler for employees to consolidate their retirement accounts and maintain their tax-favored status can improve retirement security for American workers.
Currently, employees who change jobs generally have the following four options for handling their retirement assets:
1. Leave the assets in their former employer's plan. The separating employee can do this if the value of their accrued benefit under the plan meets any threshold imposed by the plan, which can be at most $7,000 beginning in 2024. (A participant might choose this option because they find the former plan's services, investments, and fees to be attractive or because of simple inattention.)
2. Roll over their savings into a retirement plan sponsored by their new employer.
3. Roll over their assets into an IRA.
4. Cash out the balance.
The first three of these options, where the assets are in a plan or an IRA, retain their tax-preferred status. A cashout, on the other hand, results in the loss of tax-preferred status for those assets. It is no longer earning investment returns that are tax-deferred. The funds are distributed directly to the employee and are subject to regular income taxes. Additionally, a 10 percent penalty tax applies if the employee is under age 55 throughout the year in which they terminate service with the employer and if the employee does not qualify for an exception.
When a plan participant separates from service with an employer with an account balance in the former employer's DC plan, the former employer has the option to immediately
Default IRAs, while intended to preserve retirement assets in conservatively managed accounts, typically yield only minimal returns for investors while often imposing considerable fees.
With job turnover, a single individual may end up with multiple Default IRAs, further complicating the management of their retirement account assets, and in many cases, exposing participants to duplicative fees that might otherwise have been avoided if their assets were consolidated into a single account. Also, these Default IRAs are established by employers on behalf of non-responsive participants; therefore, they are more susceptible to being abandoned or forgotten by participants.
Cashouts affect participants by removing their assets from tax-favored retirement accounts. A 2023 study by Wang, Zhai, and Lynch found that over 40 percent of separating employees report cashing out at least some of their retirement account balance, consistent with reporting from numerous recordkeepers suggesting a cashout rate of approximately 40 percent among separating participants with account balances below $5,000.
Taking a cashout or taking no action at all may seem like the simplest and most expedient courses of action for a small-balance account participant upon job separation but can result in sub-optimal outcomes. A 2013 GAO study found that the rollover process was complex, inefficient, and burdensome for participants.
Plan account portability is thus integral to the retention and accumulation of retirement assets for workers. Measures to improve account portability would serve to reduce participant losses due to cashouts (and the associated taxes and penalties for early withdrawals), lost accounts, duplicative fees arising from multiple accounts, and boost average investment return.
The SECURE 2.0 Act includes a new statutory prohibited transaction exemption that seeks to improve retirement plan portability by permitting an automatic portability provider to perform automatic portability transactions for participants with Default IRA accounts established as a result of a mandatory distribution from a former employer's plan if the individual does not respond to their former plan's administrator's notices.
Prior to the passage of SECURE 2.0 Act, RCH operated in the automatic portability marketplace using PTE 2019-02 which is the “baseline” scenario for this analysis. As discussed previously, the PTE was issued for a five-year term. The need to renew the PTE, and the uncertainty associated with its continual renewal, creates uncertainty for the marketplace. The baseline includes the assumptions of future renewals of PTE 2019-02 for RCH and the mandatory distribution threshold to be at the pre-statute level of $5,000. SECURE 2.0 Act raised the mandatory distribution threshold for a plan administrator to transfer assets into a Default IRA from $5,000 to $7,000 and creates a statutory exemption that eliminated the uncertainty in the marketplace about the continued existence of PTE 2019-02, which should encourage the marketplace to expand its reach in the Defined Contribution universe.
The baseline assumes that the recordkeepers currently performing automatic portability transactions continue to be the only recordkeepers providing automatic portability transactions in the future, therefore the percent of plans and accounts covered by automatic portability remains unchanged at 65 percent. However, the percent of plans and accounts covered by automatic portability is expected to increase in the post-rule and regulation scenario, increasing from 65 percent to 90 percent by year 10.
This assumption is based on 2016 testimony by RCH and EBRI before the ERISA Advisory Council wherein they stated that the ability to locate and match accounts to conduct automatic portability transfers is “highly dependent on market adoption.”
Retirement Clearinghouse (RCH), originally founded as RolloverSystems in 2001, was the first company to approach the Department for sub-regulatory guidance and prohibited transaction relief to offer an automatic portability program to plans. RCH asserted that its services would facilitate automatic rollovers into Default IRAs from accounts in plans of individuals' former employers that are eligible for mandatory distributions under Code section 401(a)(31)(B), automatic rollovers into Default IRAs of account balances from terminated DC plans, and automatic roll-in of funds held in Default IRAs to an individual account plan maintained by the IRA owner's new employer when the Default IRA owner changes jobs and has an account in their new employer's DC plan. In 2019, the Department issued PTE 2019-02, an individual prohibited transaction exemption permitting RCH to receive certain fees in connection with the transfer of an individual's Default IRA to the individual's account in a new employer-sponsored plan, without the individual's affirmative consent.
Since then, RCH's footprint in the automatic portability space has grown with its formation of the Portability Services Network (PSN). This network currently consists of founding owning members RCH and six recordkeepers: Alight, Empower, Fidelity, Principal, TIAA, and Vanguard, and it can incorporate an unlimited number of additional member recordkeepers. While PSN operates as a separate entity from RCH that is controlled by RCH's founding owning members, PSN solely relies on the technological infrastructure and operations established by RCH.
The automatic portability provider market is new and complex. Therefore, there is significant uncertainty regarding how many entities will offer automatic portability services in the future and how the automatic portability marketplace will evolve. Barriers to entry exist in the business model, because entities must have sufficient access to plan and IRA participant data and information systems technology that would allow it to match a worker's default IRA with their plan account and transfer the employee's Default IRA to their new employer's plan. The larger the amount of data available to the automatic portability provider, the more successful it will be in matching participants' Default IRAs with their active accounts in a new employer's plan.
Based on the best available data, the Department estimates that PSN currently covers more than 60 percent of account holders in large DC plans
As discussed above, the Department assumes that PSN will be the only automatic portability provider in the market. PSN is structured with seven “owner members,” who have board control. It allows for open recordkeeper membership without board control. In September of 2023, PSN stated that the owner members, which include Alight, Empower, Fidelity, Principal, RCH, TIAA, and Vanguard, were the only members at that time.
While this analysis assumes that PSN will be the only automatic portability provider, the Department acknowledges that another automatic portability provider may enter the market. Entry of additional automatic portability providers may impact the number of affected recordkeepers and the manner in which those recordkeepers are affected by this proposed regulation.
According to the Department's analysis of 2021 Form 5500 data, there were 1,951 recordkeepers providing services to private sector DC retirement plans.
This section derives an estimate of the number of automatic portability transactions. It does so by (1) identifying plans, participants, and assets covered by PSN-participating recordkeepers, (2) estimating the number of accounts below the mandatory distribution threshold, and (3) estimating employment separations and post-separation behavior. It estimates these figures under the baseline scenario and under implementation of the statute and regulation.
The proposed regulation has the potential to affect participants with account balances in any employer-sponsored retirement plan that is: (1) a qualified trust; (2) an annuity plan described in Code section 403(a); (3) an eligible deferred compensation plan described in Code section 457(b) which is maintained by an eligible employer described in Code section 457(e)(1)(A); or (4) an annuity contract described in Code section 403(b).
To understand the number of plans, participants and assets that could be impacted one would need to know if the plan's recordkeeper is part of the PSN network and if their account balance is below the mandatory distribution threshold ($5,000 baseline or $7,000 post statute and regulation) when they separate from employment. To identify plans with PSN-participating recordkeepers the Department queried Form 5500 Schedule C data, which has information on a plan's service providers. The data has limitations. in particular, only large plans are required to submit the Schedule C, which means the majority of plans do not have to file the Schedule C. However, the group of retirement plans required to submit the Schedule C covers nearly 90 percent of participants with account balances and 90 percent of assets, which are the main variables of interest.
The query of Schedule C data showed that the six recordkeepers that are founding owner members of PSN provided services to over 34,600 large plans (40 percent of large plans) with 47 million account holders (61 percent of account holders in large plans). These plans held $5.5 trillion in assets (66 percent of large plan assets) in 2021.
Some plans with participants that may be impacted by the proposed rule are not required to file the Form 5500, for example state and local governmental plans. Account holders who participate in state and local governmental plans that are not covered by ERISA may also be affected by the proposed rule if their plan sponsor contracts with an automatic portability provider to provide automatic portability services. According to BLS employment data, there are almost 20 million currently employed state and local government workers in the United States.
The proposed regulation directly affects participants with account balances less than $7,000 in a plan at the time of separation from employment, previously only $5,000.
While the Department lacks data specifically on DC accounts with less than $7,000, there are related data that are useful in the construction of an estimate. The Employee Benefit Research Institute (EBRI) reported that in 2020, 40 percent of 401(k) plan accounts with balances had less than $10,000 in their accounts and 28 percent had less than $5,000 in their account.
Table 1 shows the estimates of the number of accounts, how the affected accounts are identified, and how the affected accounts are impacted in the baseline scenario and post-rule scenario for the first year in the estimation period. This section explains the assumptions and calculations used to obtain the estimates in the table. A similar table could be constructed for each year, with the difference for each year being the percent of accounts covered by the automatic portability network. A key takeaway from the table is the increase in accounts in plans with the automatic portability feature from the baseline to the post-rule scenario. The increase in these accounts is the source of much of the benefits of the rule. Bolded numbers at the bottom of a table are numbers that flow into a subsequent table.
A 2023 report by Vanguard suggests that accounts with balances below $10,000, which is the most similar balance category that aligns with the mandatory distribution limit and therefore used as a proxy for this group, are primarily held by participants with household incomes of less than $50,000.
The Department is interested in the post-separation behavior of both the employer/plan sponsor and account owner. A survey conducted by the Callan Institute in 2022 found that 65 percent of DC plan sponsors sought to retain assets of both retirees and terminated participants, with 85 percent seeking to retain assets of retirees and 65 percent seeking to retain assets of other terminated participants.
Two recordkeepers servicing 8 million accounts, Alight and Vanguard, published separate experience studies regarding post-separation actions in 2023.
The Department developed its estimates related to post-separation actions using both studies to create weighted averages based on the number of accounts in each study. Therefore, the Department estimates that 36 percent of separations will result in a cashout in the absence of the enhanced automatic portability plan feature provided in this proposal and statutory exemption. The Department acknowledges that the experience of these two service providers may not be representative of the experience for all plan recordkeepers and requests comments or additional data concerning this assumption.
This proposal would affect plan participants differently depending on the size of their account balance. As discussed above, under current law, a separating employee with a DC plan account balance of $7,000 or less can be “cashed out” of the plan by their employer without their consent. A separating employee with DC plan savings between $1,001 and $7,000 can only be “forced out” of their plan into a Default IRA through an automatic rollover if they do not provide directions to the employer after receiving a notice from the plan's administrator.
Alternatively, this proposal would allow for “automatic portability transactions.” These are transactions in which assets held in a Default IRA established on behalf of an individual from a mandatory distribution from an employer-sponsored retirement savings plan are subsequently transferred to an eligible employer-sponsored plan in which such individual is an active participant, after such individual has been given advance notice of the transfer and has not affirmatively opted out of such transfer. As shown above in table 2, the Department estimates that the statutory exemption would reduce the propensity to cash out for separating participants with small accounts by 25 percent. The basis for this estimate is a pilot study of automatic portability conducted by RCH which reduced cashout rates for small balance account holders by approximately 50 percent.
Table 3 shows how the affected accounts are sorted in the Department's estimation process for year one. For both the baseline and the post-rule scenario, the first step is to group the accounts based on whether or not the account belongs to a plan with the automatic portability feature and accounts subject to a mandatory distribution requirement. There are 865,736 accounts that are not subject to mandatory distribution in the baseline because their balances are between $5,001 and $7,000. These accounts are subject to mandatory distribution in the post-rule scenario. The assumptions from table 2 are then applied to these groups to estimate the share of small accounts post-separation being cashed out, remaining in the plan, and those rolled over.
Finally, the Department estimates the number of default IRA accounts expected to be generated from the roll over activity in year one. Research finds that approximately 60 percent of all small account balance IRA rollovers (default IRAs) are the result of automatic rollovers of mandatory distributions.
This section describes the benefits of the proposed regulation in comparison to the baseline before the statutory exemption for automatic portability transactions was enacted by SECURE 2.0 Act. As previously stated, RCH/PSN already relies on relief the Department provided in PTE 2019-02, an administrative individual exemption, to provide automatic portability provider services. In general, the benefits of the proposed regulation are derived from the removal of the uncertainty associated with the need to rely on an individual exemption. Moreover, RCH/PSN will benefit from this proposed regulation because they would not have to request additional relief from the Department when the five-year term of PTE 2019-02 expires.
The establishment of a statutory exemption encourages the growth of the market for automatic portability providers. As previously stated, the Department assumes that RCH currently represents roughly 65 percent of the accounts in the system and that they have a success rate of 65 percent in matching accounts in that system. This results in roughly 337,000 automatic portability transfers estimated to occur each year in the baseline. This is compared to the expansion that results from the rule where the Department estimates the number of automatic portability transfers to grow to approximately 825,000 at the end of the estimation window. This estimate represents automatic portability coverage for approximately 90 percent of the accounts in the DC system. This is anticipated to result in $2.8 billion of undiscounted benefits arising through:
• An increase in potentially affected accounts due to the increase in the mandatory distribution threshold from $5,000 to $7,000;
• Projected account balance appreciation and higher returns;
• Reduction of duplicative fees; and
• Consolidation of abandoned accounts.
Retaining assets in retirement accounts and avoiding cashouts is an objective of the statute and proposed rules. Table 5a shows the value of assets retained in the retirement accounts through a reduction of the amount of assets cashed out. The impact of the rule is the difference in the value of accounts that cashout post-rule relative to the baseline. This amount is not classified as a benefit. Table 5b shows each component of the quantified benefit stream measured as improvements between the baseline scenario and the post proposed rule scenario. The increase overtime in affected accounts is incorporated into the values displayed.
Lastly, it should enhance the ability of American workers to achieve their retirement savings goals by consolidating retirement funds into fewer accounts and investing assets consistent with their retirement needs. These benefits are described in more detail in the following subsections.
The Department expects that DC plan participants with small account balances that are subject to the Code's mandatory distribution rules would benefit from increased access to automatic portability transactions in several ways. First, their retirement account balances would be consolidated in their new employer's plan, which would reduce participants' exposure to duplicative fees. Second, the incidence of missing participants and abandoned accounts would decrease as a result of the automatic portability providers matching a Default IRA with an individual's account in their new employer's plan. Third, moving assets from a Default IRA to a DC plan would likely provide greater investment returns, on average, as the assets are reallocated from being invested in money market funds to target date funds and other, more diversified investments.
One potential outcome of a highly mobile labor force (one in which employees change jobs frequently) is the proliferation of retirement accounts. Data from the Federal Reserve indicates that approximately 20 percent of employees with a DC plan account and household incomes below $50,000 changed jobs in the past year.
Another consequence of the proliferation of small-balance accounts is the potential for a high volume of retirement assets that are “abandoned” by participants. Over time, DC plan account holders that have separated from their employers may become disconnected from their retirement assets as a result of mandatory distributions into Default IRAs. Abandonment of these accounts may be attributable to any number of reasons but are often the result of participants that are missing (cannot be found by the plan provider), unresponsive (failing to respond to communications from the plan provider), or unaware that an account has been established on their behalf. Goodman, Mukherjee, and Ramnath (2023) found that 0.4 percent of retirement-aged IRA owners abandoned their IRAs, amounting to $66 million (in 2016 dollars).
Given the threshold for mandatory distributions increases to $7,000 in 2024 while the adoption of auto-enrollment policies by plan sponsors continues to expand, there will be an increased number of potential Default IRAs, and, as a result, the number of accounts that might be abandoned or have missing participants will also increase.
Upon job separation, some employees with small-balance accounts between $1,001 and $7,000 (in 2024)
The difference in the average rate of return between these two typical investment strategies could have a substantial impact on the value of retirement assets for investors with small-balance accounts, which are susceptible to capital erosion from fees and inflation. GAO projected investment outcomes over 30 years and found that an initial balance of $1,000 was estimated to be valued at over $2,700 under the average returns for target-date funds (6.3 percent) but $0 under the average returns for money market funds (1.5 percent), largely as a result of account fees outweighing minimal returns.
As presented in table 4 of the Affected Entities section, the Department estimates that just over 10 million Default IRAs will be created in the ten-year estimation period, compared to 8.1 million in the baseline, a change of approximately 2.0 million accounts. Of these 10 million Default IRAs, 8.3 million are assumed to be in the automatic portability network under the rule (compared with 5.3 million at the baseline). The results are that 7.1 million accounts will be moved into a new employer's DC plan via automatic portability, compared with 3.4 million in the baseline, an improvement of 3.7 million between the two scenarios. This results in an asset allocation with a more favorable return for account owners.
Similar to the GAO analysis, the Department utilized updated data covering the 15 most recent years to estimate the returns to money market funds characteristic of Default IRAs and for target-date funds (TDFs) typical of DC plans, further supporting an analysis of how the change in asset allocation might potentially alter investment outcomes as a result of automatic portability transactions. Returns to money market funds from 2008 to 2022 averaged 0.7 percent, while returns to TDFs averaged 8.1 percent over the same period.
The Department estimates that this reallocation of assets from Default IRAs to DC plans would result in approximately $2.0 billion in additional benefits when compared to the baseline value.
The increase in the mandatory distribution threshold from $5,000 to $7,000 means that some separating participants will have fewer choices about how to deal with their account. This reduces the net benefits for those plan participants. Prior to the passage of the SECURE 2.0 Act, many separating participants in this account balance range would have left their account in their former employer's plan, but some of those participants would now be subject to a mandatory distribution into a Default IRA. If the account assets end up in a Default IRA, the Department expects that the participant would generally be worse off than in their former employer's plan because the assets would be subject to little or no growth given that they typically would be invested in money market funds and subject to relatively high fees. Other separating participants in the $5,000 to $7,000 range may end up being rolled into a new employer's plan; they would be better or worse off depending on how the services, products, and fees in the new employer's plan compared to the former employer's plan and depending on how long the assets lingered in the Default IRA before being rolled over into the new employer's plan. Overall, the affected participants would be worse off on average.
The estimated benefits for participants that are described in the preceding subsection result from the predictability the proposed rule provides to the marketplace. This predictability is intended to encourage the growth and efficiency of the automatic portability market. RCH/PSN will no longer need an administrative individual exemption or to apply to the Department for additional relief when the term PTE 2019-02 expires in 2024. For the same reason, the proposed rule removes barriers to entry for potential future automatic portability providers. The proposed rule will bring increased certainty to the robust network of entities involved in automatic portability arrangements, consisting of the automatic portability provider(s), recordkeepers, plans and plan sponsors, and plan participants and Default IRA owners, which will increase the reach, efficiency, and long-term viability of automatic portability transactions.
Financial institutions would benefit from more assets being kept in consolidated, retirement savings accounts and being invested rather than being cashed out because the financial institutions would earn more fees. Cashouts from small balance accounts are typically taken as cash and spent. The loss of retirement assets associated with cashing out small balance accounts and Default IRAs will be considerably curtailed with the adoption of automatic portability programs by plans sponsors and recordkeepers. At job separation, a small balance account holder (who has an account with $5,000 or less, or beginning in 2024, an account with $7,000 or less) can be forced out of their former employer's retirement plan.
This analysis estimates the changes to cost burdens associated with the provision of automatic portability services under the proposed rule when compared to a baseline where the automatic portability provider operates under PTE 2019-02. The costs presented can be generally grouped into two categories: start-up and ongoing. The start-up costs are associated with updating processes or documents to bring existing practices into compliance with the proposed rule where there is a difference between operations under the PTE when compared to the proposed rule. The ongoing costs generally represent costs incurred due to both the increase in the threshold from $5,000 to $7,000 which is expected to create more default IRA accounts which is the group that automatic portability transactions occur within, and the growth of the automatic portability system which is assumed to result from the proposed rule. Over the first 10 years, the Department estimates an undiscounted cost of approximately $16,206,196, annualized to $1,620,620.
For purposes of this analysis, the Department assumes that the percent of retirement investors receiving electronic disclosures would be similar to the percent of plan participants receiving electronic disclosures under the Department's 2002 and 2020 electronic disclosure safe harbors.
Additionally, the Department assumes that several types of personnel would perform the tasks associated with information collection requests at an hourly wage rate of $63.45 for clerical personnel, $128.11 for a top executive, $116.86 for an auditor, $132.93 for a plan fiduciary, $155.61 for a web designer, $159.34 for a legal professional, and $190.63 for a financial manager.
Pursuant to the statutory text authorizing the Secretary to specify the time and format of such an acknowledgment, § 2550.4975f-12(b)(1) of this proposed regulation requires the automatic portability provider to acknowledge in writing that it is a fiduciary as defined in Code section 4975(e)(3) upon being engaged by a plan fiduciary, as well as in the required notices and disclosures to plan participants and IRA owners that are described below.
The automatic portability provider's acknowledgment of its fiduciary status may include a description of the scope of the fiduciary status of the automatic portability provider and may explain that the automatic portability provider is not a fiduciary, consistent with Code section 4975(e)(3), with respect to any assets or administration of the plan or IRA with respect to which the automatic portability provider does not (1) have any discretionary authority, discretionary control or discretionary responsibility, (2) exercise any authority or control, and (3) render investment advice for a fee or other compensation, nor have any authority or responsibility to render such investment advice.
Although PTE 2019-02 discussed RCH's fiduciary status, it did not explicitly require a fiduciary acknowledgement as a condition of the exemption. Therefore, the proposed regulation has the potential to incrementally increase the costs to RCH/PSN. The Department assumes the time it would take to draft the fiduciary acknowledgment would be minimal and anticipates that a single standard acknowledgement would be included in contracts with plan sponsors. If language is not already included in contracts, the Department estimates that RCH/PSN would send a one-page supplemental acknowledgement to each plan sponsor with an estimated cost of $159 in legal costs to develop the supplemental acknowledgement and $391,275 in clerical costs
The Department also anticipates the acknowledgement in each of the three notices to plans participants/IRA owners (initial enrollment, pre-transaction, and post-transaction notices) would use a standardized and identical acknowledgment. The Department requests information about other costs associated with the requirement to disclose fiduciary status.
The statutory exemption specifically prohibits the automatic portability provider from marketing or selling data relating to the IRA or to the plan participants. Section 2550.4975f-12(b)(3) of the proposed regulation parallels the statutory language by not permitting the use of data for any purpose other than the execution of automatic portability transactions or locating missing participants. The Department is not proposing any exceptions to this restriction. A similar restriction was placed on RCH in PTE 2019-02, so the Department does not expect an additional cost to RCH/PSN due to the proposal.
The Department, however, did not include an express data protection condition in PTE 2019-02 similar to that included in the proposed regulation. Therefore, compared to existing requirements on RCH/PSN, the Department expects that the proposed regulation could add costs. However, the Department also expects that these costs would fall under normal operating expenses borne by businesses when dealing with the types of sensitive data necessarily required to execute automatic portability transactions. The Department requests comment on this assumption.
As previously discussed, there is a transaction fee stated to be roughly between $15 and $30 per transferred account, depending on the account balance. This fee is applied only when a transfer occurs and is deducted from the funds in the account being transferred. The Department estimates there to be an additional 60,265 transactions in year one, and an average of 399,341 transactions annually in years two through ten. The Department uses the mid-point of the fee range stated, $22.50, as the expected average fee. Therefore, the Department estimates the aggregate transaction fees to be approximately $1.4 million in year one, and period two through ten to have aggregate fees on average of nearly $9 million per year.
Under the proposed regulation, within 90 calendar days of the date that the automatic portability provider begins operating an automatic portability transaction program that is intended to rely on prohibited transaction relief provided by Code section 4975(d)(25), the automatic portability provider must notify the Secretary at
Because PTE 2019-02 was issued to a single entity, there was no such requirement in the exemption. However, the Department believes based on the small number of expected automatic portability providers entering the market, that the possible cost burden associated with submitting the simple notice via email to the Department to be roughly $16, which is estimated as 15 minutes of a clerical worker's time with an hourly wage rate of $63.45. While this notification would need to be updated to report a change to the legal or operating name(s) of the automatic portability provider that is relying upon the exemption, the Department expects that such a change would be rare and thus does not estimate an associated cost.
The proposed regulations incorporate the existing standard regarding reasonable compensation for the provision of services found at 26 CFR 54.4975-6(e). This proposed regulation mirrors the text of the statutory exemption by requiring the automatic portability provider to disclose the information that a service provider to the plan would be required to disclose under 29 CFR 2550.408b-2(c) to a responsible plan fiduciary of the transfer-in plan. For purposes of this requirement, the disclosures would relate to the automatic portability provider's services performed as an automatic portability provider but not to other services that may be provided.
The proposed regulation includes text that mirrors the statutory text allowing a direct fee to be paid by a plan sponsor if it is in lieu of a fee imposed on an IRA owner. The proposed regulation includes one exception to the general restriction on third-party compensation. Specifically, under the proposal, an automatic portability provider would be able to share a portion of its fee or compensation with another automatic portability provider as long as the overall fee paid, directly or indirectly, by the plan or IRA does not increase as compared to the fees disclosed to plan fiduciaries, plan participants, and IRA owners.
PTE 2019-02 requires RCH to fully disclose fees to a plan fiduciary and receive written approval from the plan fiduciary. Therefore, the Department expects that no change in cost will occur as a result of this requirement in the proposed regulation.
The Department proposes that the initial enrollment notice would include a variety of information regarding the nature of the automatic portability transaction and additional aspects of the IRA arrangement (the same information to be included in the pre-transaction notice), discussed below. The Department anticipates that this notice requirement could be satisfied by including the information in the notice otherwise required under Code section 401(a)(31)(B) upon the establishment of a Default IRA.
PTE 2019-02 requires a “Mandatory Distribution Letter” be sent to participants before establishing a Default IRA. PTE 2019-02 also requires a “Welcome Letter” to be sent to the same individual no later than three business days after the Default IRA receives the distributed assets. Together, these two letters must include all the information required in the initial enrollment notice in the proposed regulation. The Department estimates the revision and combination of these documents to satisfy the proposed rule will take an hour of an attorney's time at a wage rate of $159.34 resulting in a total cost of $159.34 to RCH/PSN. Because RCH/PSN is permitted to consolidate the two notices required under PTE 2019-02 into a single notice, a burden savings of 22,182 hours in the first year and 20,194 hours in subsequent years of a clerical worker's time with an equivalent cost savings of approximately $1.3 million each year would result.
The mailing and material costs are also expected to be reduced due to the combination of two notices into one. As previously noted, the Department assumes that 3.9 percent of recipients enumerated in the previous paragraph will receive mailed notices, and that the remainder will receive notices electronically, resulting in roughly 665,458 fewer notices in the first year and on average 605,806 fewer in subsequent years being mailed. since the initial enrollment notice provides an opportunity for RCH/PSN to consolidate two notices into one. This reduction of notices being sent has an associated estimated cost savings of nearly $23,600 in the first year and $21,500, on average, in subsequent years.
Section 2550.4975f-12(b)(5)(iv) of the proposed regulation incorporates the statutory provisions of Code section 4975(f)(12)(B)(v). The proposed regulation provides additional clarification regarding the timing of the pre-transaction notice by requiring that the notice be sent no earlier than 90 days in advance of the automatic portability transaction.
PTE 2019-02 included a pre-transaction notice, referred to as a “Consent Letter.” The letter is required to be sent before moving Default IRA assets into a transfer-in plan after the locate and match service makes a match. The content of the Consent Letter is substantially the same as the pre-transaction notice required by the statute and incorporated into the proposed regulation. The Department believes there will be a minimal transition cost to RCH/PSN attributable to bringing the “Consent Letter” into compliance to serve as the pre-transaction notice. This is estimated to take one hour of a legal professional's time at a wage rate and total cost of $159.34.
The Department estimates that there will be a 61,121 increase in pre-transaction notices in the first year and that there will be, on average, 384,265 additional notices in subsequent years. This increase will result in roughly 2,037 hours in year one and, on average, 12,809 hours in subsequent years of clerical workers' time at 2 minutes per notice on average, at a rate of $63.45 for a total net cost of roughly $129,271 in year one and, on average, $812,720 in subsequent years. The notices are expected to consist of no more than two pages. The mailing and materials cost associated with the pre-transaction notices are estimated as 2,384 notices being sent in the first year at an estimated cost of $1,812 and, on average, 14,986 notices sent in subsequent years with an estimated average cost of $11,390.
This post-transaction notice, which would occur after a transfer-in plan receives an individual's IRA funds, is the last notice that the automatic portability provider would be required to provide to the IRA owner or plan participant. Section 2550.4975f-12(b)(5)(v) of this proposed regulation incorporates the statutory requirements. The statute requires that no later than three business days after the completion of an automatic portability transaction, the automatic portability provider shall
PTE 2019-02 did not require a post-transaction notice. Therefore, as compared to the statutory requirements, this new requirement has the potential to add cost to PSN/RCH as an automatic portability provider. The Department estimates the development of a model notice will take a legal professional two hours at an hourly wage rate of $159.34 for a total cost of $319 in the first year.
The Department estimates that in the first year 397,749 notices will be sent to account owners and, on average, 736,825 notices to IRA owners subsequent years within the projection window creating an hour burden of 13,258 and 24,561 respectively, assuming 2 minutes per notice, on average, of clerical workers' time. The post-transaction notice is expected to be no longer than two pages. Therefore, the Department estimates an equivalent cost of approximately $0.8 million in the first year and an average of $1.6 million in each subsequent year within the projection window.
As discussed at the beginning of this section, the Department estimates that 3.9 percent of the notices would be sent by mail. The Department estimates that an automatic portability provider would incur a cost of $0.76 to send each disclosure, which is comprised of $0.66 for postage and $0.10 for the paper and printing costs of two pages. Therefore, the materials and postage costs are estimated as 15,512 notices at $0.76 per notice totaling $11,789 in the first year and an average of 28,736 notices at $0.76 per notice totaling $21,839, on average, in years 2 through 10.
The proposed regulation would require that notices and disclosures to participants and IRA owners be provided in a culturally and linguistically appropriate manner if their address is in a county where 10 percent or more of the population is literate only in the same non-English language. To determine whether a county meets this threshold, the Department relies on American Community Survey (ACS) data published by the United States Census Bureau. In the 2016-2020 ACS data, 230 counties or county equivalents met or exceeded the 10 percent threshold (rounded to the nearest percent).
In these counties, the automatic portability provider must include in the English versions of all required notices and disclosure, a statement prominently displayed in any applicable non-English language, which clearly indicates how to access the language services provided by the automatic portability provider. The Department estimates that satisfying this requirement would result in a de minimis cost. The automatic portability provider would also be required to provide oral language services (such as a telephone customer assistance hotline) that include answering questions in any applicable non-English language and providing assistance with automatic portability transactions in any applicable non-English language.
Additionally, the automatic portability provider would be required to provide, upon request, a notice or disclosure in any applicable, non-English language. In the 2016-2020 ACS, the Department identified eight languages that met the 10 percent threshold in at least one county. The eight languages were Spanish, Chinese, Navajo, Tagalog, Samoan, Carolinian, and Chamorro. For the purposes of this analysis, the Department estimates that an automatic portability provider will need to translate the notices into eight languages. Document translation costs vary depending on the length of the document, the complexity of the document, and the complexity of the language.
A similar analysis conducted by the Department estimated that the average requests for translations of written documents averages 0.098 requests per 1,000 health benefit plan members.
The Department assumes that it would take a clerical professional two minutes to prepare and send each disclosure. The Department assumes that all of the translated notices would be sent by mail. The Department requests comment on this assumption. Additionally, the Department estimates that an automatic portability provider would incur a cost of $0.76 to send each disclosure, including $0.66 for postage and $0.05 for the printing costs of each page. The hour burden, equivalent cost, postage, and material costs are summarized in the table below.
The Department proposes a requirement that the automatic portability provider provide the administrator of participating plans with a model description of the automatic portability program, including fees and expenses, that the administrator could use in fulfilling its SPD obligations, as applicable.
PTE 2019-02 included an SPD condition but was silent on which party had the obligation to ensure compliance. However, given the fact that RCH was the entity in control of the fees, the Department expects that the SPD condition of PTE 2019-02 would have been fulfilled in a manner similar to that in the proposed regulation. Therefore, the Department estimates no additional incremental burden to RCH/PSN as a result of the proposed regulation.
The proposed regulation parallels the Code section 4975(f)(12)(B)(viii) requirement that the automatic portability provider query on at least a monthly basis whether any individual with an IRA has an account in a transfer-in plan. Under the proposal, the automatic portability provider must perform ongoing participant address validation searches via automated checks of National Change of Address
PTE 2019-02 included an identical requirement regarding monthly searches. The Department assumes that this process is automated via technology and has de minimis marginal cost with respect to number or records being searched; therefore, this aspect of the proposal is not expected to add additional cost to RCH/PSN. PTE 2019-02 also included a general requirement to take “all prudent actions necessary to reasonably ensure that the Plan's participant and beneficiary data is current and accurate.” Although RCH represented to the Department that it would perform address validation searches in line with the requirement in the proposed regulation, the condition in PTE 2019-02 did not specify the frequency of those searches nor the additional parameters in the proposal regarding participant address validation searches. The Department believes, due to the representation from RCH in connection with the individual exemption, that the proposed regulation will therefore not add additional cost. However, the Department requests comment on whether the current framework for executing automatic portability transactions of RCH/PSN is expected to include a process for ongoing address validation searches for Default IRAs that are included in the arrangement (
Section 2550.4975f-12(b)(7) of the proposed regulation requires that the automatic portability provider ensure that each transfer-in plan for whom the automatic portability provider performs automatic portability transactions designates a plan official responsible for monitoring transfers into the plan and confirming that amounts received on behalf of a participant are invested properly.
Although the Department believes that monitoring transfers is a necessary component of an automatic portability arrangement, PTE 2019-02 did not include a condition explicitly mandating that a plan official monitor transfers into the plan. As compared to PTE 2019-02, the Department does not believe the proposed requirement regarding monitoring transfers will likely add cost because that should be a normal act of routine plan administration when assets are rolled into a plan.
Section 2550.4975f-12(b)(9) incorporates the statutory limitation on discretion and expands upon the statutory text by specifying that an automatic portability provider will be deemed to satisfy the limited discretion requirement if it establishes, maintains, and follows policies and procedures regarding the process for executing automatic portability transactions.
PTE 2019-02 included a condition on the limitation of discretion but did not include a policies and procedures component that would result in the condition being satisfied. The Department believes that it would be standard business practice for RCH/PSN to have policies and procedures in place to govern the various conditions of PTE 2019-02 to ensure that all automatic portability transactions are executed consistently and in a manner that can be independently audited. Although an automatic portability provider is not required to establish the policies and procedures to satisfy the limited discretion aspect of the statute and proposed regulation, the Department anticipates that RCH/PSN will choose to take advantage of the “deemed satisfied” aspect of the proposed regulation. The Department assumes that a legal professional with a wage rate of $159.34 will spend 10 hours reviewing the existing policies and procedures to ensure compliance with the requirements in the proposed rule, resulting in an equivalent cost of $1,593.40.
Code section 4975(f)(12)(B)(xi) includes an annual audit requirement to be conducted in accordance with regulations promulgated by the Secretary. The statute requires that an audit be conducted that demonstrates compliance with Code section 4975(f)(12) and any regulations thereunder and that identifies any instances of noncompliance with the statute or such regulations. The statute requires the automatic portability provider to submit a copy of the auditor's report to the Secretary in such form and manner as specified by the Secretary.
PTE 2019-02 required an annual audit conducted by an independent auditor. The auditor is required to review a representative sample of transactions and related undertakings, sufficient for the auditor to make a variety of determinations regarding compliance with PTE 2019-02. Those findings must then be included in a report that is sent to the Office of Exemption Determinations at the Department, the cost of which is discussed below.
The timing for submission of the audit report in the proposed regulation follows the timing from PTE 2019-02. However, as compared to PTE 2019-02, the proposed regulation has a minor difference as a result of the proposed correction provisions. Rather than have the auditor submit the report directly to the Department as was the case under PTE 2019-02, the proposed regulation requires that the audit report shall be provided first to the automatic portability provider, who will thereafter submit the report to the Department after reviewing the audit report and certifying that it has done so.
The parameters of the audit in the proposed regulation, while intended to align with the PTE 2019-02 audit, provide more detail regarding the form and content of the audit, in consideration of the statutory requirements and other areas where the Department has proposed requirements for the purposes of regulatory clarity. The audit requirement of the proposed regulation also accounts for the corrections that may occur in accordance with this proposal. PTE 2019-02 did not specifically include correction parameters. The cost associated with the proposed correction mechanisms is described in the next section.
The Department anticipates the audit parameters of the proposed regulation will add cost to RCH/PSN as compared to what they might otherwise have incurred under PTE 2019-02. First, the proposed regulation requires the audit report to include the total number of completed automatic portability transactions during the audit period. Second, the proposed regulation requires the audit report to address specifically whether, in the reviewed
Due to the increase in required actions for the audit, the Department estimates the proposed regulation will increase the cost of performing the audit by roughly 20 percent. The Department estimates audit costs in the absence of the proposed rule to be close to $25,000 per year. Therefore, the Department estimates that the proposed rule will increase audit costs by approximately $5,000 per year. The Department seeks comment on this estimate.
There are several actions the automatic portability provider will need to take in support of the audit requirements, which are outlined below. To ensure the accuracy of certain information that the Secretary is required to provide to Congress periodically, the proposed regulation requires the audit report to include information that was not specifically contemplated under PTE 2019-02, and which may not be directly in the automatic portability provider's possession. If the information is not in the possession of the automatic portability provider, the proposed regulation requires the automatic portability provider to require contractually that the information to be provided in connection with its services as an automatic portability provider. If this obligation is not already included in RCH/PSN's contracts with recordkeepers and plans, RCH/PSN may need to update those agreements. The Department estimates updating the standardized contracts would take a lawyer one hour at a wage rate and total cost of $159.34. Assuming that all 185,000 plans currently covered by the automatic portability provider would have their contracts updated with the standard contract, the Department estimates that a plan fiduciary will spend 15 minutes to execute the updated contract. This results in a burden of 46,250 hours of plan fiduciaries' time, at a wage rate of $134.93, resulting in a total cost of $6,240,513.
Although anticipated under PTE 2019-02, there was not an explicit condition for the automatic portability provider to include a certification filed with the written audit report, under penalty of perjury, that the automatic portability provider has reviewed the audit report. Nor was there a condition requiring the automatic portability provider to certify that it has addressed, corrected, or remedied any noncompliance or inadequacy in its compliance or has an appropriate written plan to address any such issues identified in the audit report. Because the Department believes RCH/PSN would necessarily be reviewing the audit under PTE 2019-02, it has not attributed a cost to that specific aspect of the proposed regulation. However, with respect to the certifications, the Department estimates that it will take a legal professional 3 hours to draft the certifications and a senior executive 30 minutes to execute the certification, for an added cost of $542 in the first year and $64 in subsequent years.
Finally, there would be additional resources expended in collecting and providing the additional records and for the plan to submit the audit report to the Department in place of the auditor. The Department estimates a clerical worker with a wage rate of $63.45 would spend an additional 5 hours collecting and providing documentation and records for the audit and approximately 15 minutes sending the report once finalized. The resulting cost burden for these actions is $333.
To effectuate the intent of this provision, the Department is proposing three components for corrections in the event the auditor determines the automatic portability provider was not in compliance with the statute and related regulations: an opportunity for an automatic portability provider to make certain self-corrections; additional recommendations from the auditor; and the Secretary requiring an automatic portability provider to submit to supplemental audits and corrective actions if significant compliance issues are uncovered.
Although PTE 2019-02 did not include any correction provisions, the Department believes the availability of self-correction will generally provide a benefit to RCH/PSN as opposed to a cost. However, in connection with the proposed regulation's correction provisions, the automatic portability provider must establish policies for the corrections permitted by the proposal. The Department expects that RCH/PSN will need to develop policies related to corrections that may not already be included in other pre-existing policies and procedures governing their program. The Department assumes the policies would be developed by an in-house attorney with a wage rate of $159.34 and would take roughly 20 hours resulting in a one-time cost of $3,187.
Additionally, the proposed regulation also includes provisions relating to the auditor's review of the automatic portability provider's compliance that were not specifically included in PTE 2019-02. If the auditor identifies any instances of noncompliance, then RCH/PSN would be required by the proposal to correct those issues as soon as reasonably practicable. The Department believes there may be some added cost associated with remediating compliance issues. The Department lacks the information necessary to identify the extent of noncompliance issues that might be uncovered. However, in order to correct issues, the Department assumes that both a Senior Executive and a lawyer would likely be involved. The Department estimates each would spend 10 hours considering and developing remedies to audit findings. The cost for the lawyer is estimated as 10 hours at a wage rate of $159.34 resulting in a cost of $1,593. The cost for the Senior Executive is similarly estimated as 10 hours at a wage rate of $128.11 resulting in a cost of $1,281.10. Lastly, a summary of the corrective actions taken is to be sent to the auditor. The Department assumes that a clerical worker with a wage rate of $63.45 will spend two hours organizing and communicating the summary to the auditors, at a cost of $127. The total annual cost to address audit findings and communicate the summary of actions taken is estimated as the sum of these three costs, $3,001.
The ability of the Department to impose additional supplemental audits and corrective actions could also add cost. For instance, if the Department were to impose a supplemental audit, the expected cost to RCH/PSN would likely be the same as the cost of the required annual audit. The Department estimates that no more than one supplemental audit would be imposed in any particular year, but also expects the imposition to be rare. To account for the possibility, the Department assumes one supplemental audit would occur in
If the Department were to impose a temporary prohibition on relying upon the statutory exemption, the cost to RCH/PSN associated with that would generally be a function of the number of automatic portability transactions multiplied by the revenue per transaction for the period in which they could not use the exemption. Due to the novelty of the arrangement, the Department currently lacks data to estimate the magnitude of this cost.
The proposed regulation in paragraph (d) parallels the statutory language in Code section 4975(f)(B)(xii) requiring the automatic portability provider to: (1) maintain a website which contains a list of recordkeepers with respect to which the automatic portability provider carries out automatic portability transactions; (2) list all fees paid to the automatic portability provider; and (3) indicate the number of plans and participants covered by each recordkeeper. Under the proposed regulation, the list would have to include the fees and the identity of the party or account that is paying the particular fee. The proposal would also require the website to display automatic portability transaction-related information in a way that differentiates that information from other information or elements of the website (
PTE 2019-02 required a website that includes a list of all participating recordkeepers but did not require the additional detail regarding a list of all fees paid to the automatic portability provider, or the number of plans and participants covered by each recordkeeper. The Department anticipates that this information will be readily available to RCH/PSN and that they will update their website to include all the information in a format that meets the requirements in the proposed rule.
The Department estimates that a Senior Executive would spend one hour providing a web designer the requirements for the disclosures in the first year, resulting in an equivalent cost of $128.
The limitation on exculpatory provisions in the proposed regulation is substantially identical to the limitation in PTE 2019-02. Therefore, the Department anticipates no additional cost to RCH/PSN.
This proposed regulation incorporates the statutory language in Code section 4975(f)(12)(xi)(I) regarding record retention by requiring an automatic portability provider to maintain, for not less than six years, records sufficient to demonstrate compliance with the requirements of the statute and this proposed regulation and make them available to authorized employees of the Department and the Department of the Treasury within 30 calendar days of a written request.
PTE 2019-02 had a broader recordkeeping provision with respect to who could request records as compared to the statutory provision. The Department believes this could result in cost savings to RCH/PSN because plan fiduciaries and IRA owners can no longer request the records. However, the Department does not believe this will change the cost of retaining the records. The Department does not know how many plan fiduciaries or IRA owners would request records, but expects it would be infrequent, resulting in a de minimis cost reduction to RCH/PSN.
Section 2550.4975f-12(g) of this proposed regulation parallels Code section 4975(f)(12)(B)(iv) by requiring, as a condition of the availability of the exemption, that the automatic portability provider offer automatic portability transactions on the same terms to any transfer-in plan. The Department is also proposing that open participation would require that the automatic portability provider not restrict or limit the ability of an employer-sponsored retirement plan, IRA custodian or IRA provider, or recordkeeper to engage other automatic portability providers to execute automatic portability transactions. PTE 2019-02 required RCH to offer the program in a functionally identical manner as the open participation requirement of the statute. However, it did not include a condition similar to the proposed regulation requirement that ensures a plan sponsor is not restricted from engaging more than one automatic portability provider. Since this requirement reduces barriers to entry, it will tend to encourage RCH/PSN to keep its fee low to discourage other automatic portability providers from competing in the market. This would represent a transfer from RCH/PSN to participants in the form of lower fees and to other automatic portability providers (if others enter the market), in the form of lower barriers to entry.
Assets that stay in the tax-preferred retirement system rather than being cashed out will not be subject to regular income tax until a future date when they are distributed. They will also avoid altogether the 10 percent penalty tax on early distributions that would have applied to many cashouts. As the participants pay less in taxes, this represents a transfer from the government to participants in the form of increased tax expenditures supporting the retirement system.
The Department estimates that over the ten-year estimation period the proposed rule will lead to 1.5 million fewer cashouts with a value of approximately $4.6 billion. The Department assumes that the marginal income tax rate for small account holders would be 12 percent.
Section 6(a)(3)(C)(iii) of Executive Order 12866 requires a significant regulation, and encourages other regulations, to include an assessment of the costs and benefits of potentially effective and reasonable alternatives to the planned regulation. The Department considered several alternative approaches in developing this proposed regulation which are discussed below.
The Department considered not proposing regulations with respect to the automatic portability provision included in section 120 of the SECURE 2.0 Act. Section 120(c) directs the Secretary of Labor to “issue such guidance as may be necessary to carry out the purposes of the amendments made by this section, including regulations or other guidance” no later than 12 months after the enactment of the statute. To this end, the Department has considered whether its responsibilities under section 120(c) could be satisfied by issuing only sub-regulatory guidance. The Department considered issuing guidance stating that compliance with the individual exemption would be sufficient to comply with the statutory exemption. However, since the Department anticipates that entities not engaging in automatic portability transactions may wish to enter the automatic portability market in the future, the Department maintains that issuing the proposed regulation would address any uncertainty on complying with the statutory exemption in a manner that is consistent with directives expressed in section 120(c).
The Department considered issuing limited regulations concerning only the portions of section 4975(f)(12) focused on the audit and the acknowledgement of fiduciary status, both of which called on the Department to promulgate regulations to determine compliance. In so doing, the Department could have issued sub-regulatory guidance with respect to compliance with the rest of the exemption. The Department did ensure that these proposed regulations provide the necessary blueprint for completing a comprehensive audit and sufficient acknowledgement of fiduciary status. However, given that regulations were to be proposed, the Department believes that more comprehensive regulations ensure that automatic portability transactions are protective of plan participants and beneficiaries. Furthermore, the Department believes that the novel nature of automatic portability transactions necessitates comprehensive proposed regulations followed by a notice-and-comment process in which stakeholders can provide input.
The Department considered not including a requirement for an initial enrollment notice in the proposed regulations. The statute only requires that an automatic portability provider furnish IRA owners with a pre-transaction notice and a post-transaction notice. However, section 120(c)(1) gives the Department the statutory authority to require that automatic portability providers furnish a notice “in advance of” the pre-transaction notice. The Department was not mandated to require additional notices and could have considered the pre-transaction notice sufficient to provide IRA owners with information regarding the automatic portability transactions. However, the Department determined that the initial enrollment notice helps to ensure the IRA owner's awareness and understanding of the automatic portability transaction, including but not limited to, the individual's right to affirmatively elect not to participate in the transaction, the other available distribution options, the procedures to take advantage of such options, and the procedures for doing so.
The Department considered proposing an audit that could be conducted as an internal audit. However, the Department determined that the factors which led to the inclusion of an independent audit in PTE 2019-02 still exist with respect to the execution of automatic portability transactions, even under the new statutory exemption. The novelty of these types of transactions leads the Department to believe that the enhanced oversight and credibility associated with an independent audit favors the Department's approach in the proposed regulation.
In section E of the preamble the Department is requesting comments on whether it should exercise its general exemption authority under ERISA section 408(a) to provide the same exemptive relief to mandatory distributions with a value of $1,000 or less that the statutory exemption provides to mandatory distributions described in Code section 401(a)(31)(B) with a value between $1,001 and $7,000. The estimated benefits and costs in the regulatory impact analysis for this proposed rule include all accounts with balances of $7,000 or less. As discussed in section E, that analysis aligns with the scope of Department's safe harbor regulation at 29 CFR 2550.404a-2 for automatic rollovers to individual retirement plans and with PTE 2019-02. Excluding accounts with balances of $1,000 or less from the regulatory impact analysis for the proposed rule results in a reduction in the ten-year undiscounted total estimated benefit to $1.7 billion
The Department has substantial uncertainty surrounding these estimates and made simplifying assumptions to obtain the estimates. The Department seeks comment and data on the following issues. The number of mandatory distributions or accounts with a balance of $1,000 or less is not certain. The most relevant data available comes from a 2023 Public Retirement Research Lab report concerning public
The Department acknowledges that there is significant uncertainty in how the automatic portability provider market will develop in the future. The Department requests comments on these sources of uncertainty. For instance, there may be only one automatic portability provider in the future, PSN, or there may be multiple automatic portability providers, which would allow for specialization on the part of the automatic portability providers. If additional firms ultimately enter the market as automatic portability providers, resulting in a less concentrated market with more competitors, that would likely lead to lower fees, better quality service, and less profits for RCH/PSN. These benefits and transfers would accrue to the other automatic portability providers and to participants.
In the baseline scenario, the number of recordkeepers joining PSN was expected to be flat. However, additional recordkeepers could join the network. The model was adjusted to have the number of recordkeepers increase at half the rate as was used for the post-statute and regulation scenario. Changing this assumption led to a ten-year undiscounted total estimated benefit of $615.0 million
There is uncertainty about the number of future automatic portability transactions, in large part because the Department is unclear how the proposed rule will impact DB plans and participants. While the Department believes that the statutory regulation applies to both DB and DC plan participants, the Department assumes that DB plan participants will rarely be affected by this proposed rule. DB plan benefits are generally derived from a formula based on an employee's wages and years of service, which an employee is only entitled to once they are fully vested. Vesting periods vary, however, with five-year “cliff” vesting being very common and for which few vested participants would separate from service with benefits that are less than $7,000. However, participants in DB plans with graded vesting would be more likely to have accrued benefits below the threshold. The Department requests comments on the number of DB plans and participants that would be affected by this statutory exemption and how they would be impacted.
While the share of workers covered by DB plans has continued to decline, those covered by DC plans have increased substantially, with 45 percent of civilian workers participating in DC plans compared to just 19 percent participating in DB plans.
Workers affected on the margin by increased retirement plan coverage would likely have a lower income on average than workers currently covered by a retirement plan and therefore would tend to contribute less to their plan. Employers sponsoring new plans may also contribute less. These factors would lead to more small balance accounts that would be subject to forced transfers into Default IRAs. These workers would also be more likely to experience a larger number of job turnovers on average, so there would be more Default IRA owners. Under the assumption that DC plan coverage will increase in the future, Default IRA owners would be more likely to have coverage at their new jobs, leading to more automatic portability transactions.
There are also many factors at the level of individual employee behavior that will affect the impact of the statutory exemption and any accompanying regulations. This includes employee decisions about whether to contribute to their DC plan, which will be influenced by plan designs that have automatic enrollment. Furthermore, employee decisions about how to handle their account when separating from a job will be key. It is difficult to know what the trends will be around such decisions in the future since they may be affected by financial advice, and any possible changes to the scope of coverage under DB pension plans and Social Security. While the scale of such developments is difficult to predict, they will surely have a substantial impact on the scope of automatic portability transactions, the number of participants, plans, and financial institutions affected, as well as the size of the benefits and costs.
As part of its continuing effort to reduce paperwork and respondent burden, the Department conducts a preclearance consultation program to allow the general public and Federal agencies to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA). This helps ensure that the public understands the Department's collection instructions, respondents can provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents.
The Department is soliciting comments regarding the information collection request (ICR) included in the NPRM. To obtain a copy of the ICR, contact the PRA addressee below or go to
• Evaluate whether the collection of information is necessary for the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
Commenters may send their views on the Department's PRA analysis in the same way they send comments in response to the proposed rule as a whole (for example, through the
ICRs are available at
For the purposes of this analysis, the Department assumes that the percent of retirement investors receiving electronic disclosures would be similar to the percent of plan participants receiving electronic disclosures under the Department's 2002 and 2020 electronic disclosure safe harbors.
Additionally, the Department assumes that several types of personnel would perform the tasks associated with information collection requests at an hourly wage rate of $63.45 for clerical personnel, $128.11 for a Senior Executive, $134.93 for a plan fiduciary, $155.61 for a web developer, and $159.34 for a legal professional.
As discussed in the Affected Entities section of the Regulatory Impact Analysis, the Department expects that the statutory exemption and accompanying proposed regulation would impose paperwork burdens on automatic portability providers and plans. For the purposes of this analysis, the Department assumes that there will only be one entity providing automatic portability provider services. The Department acknowledges that there is significant uncertainty in how the automatic portability provider market will develop in the future. For a larger discussion on the factors the Department considered in this estimate, refer to the Affected Entities section of the Regulatory Impact Analysis.
In 2023, PSN noted that their member recordkeepers represent over 185,000 employer-sponsored retirement plans.
As discussed in the Affected Entities section of the Regulatory Impact Analysis, the Department estimates that there are 954,786 account holders for whom default IRAs will be established in the first year, 976,384 in year two and 994,897 in year three. The Department requests comment on this estimate, as well as how it would likely change after the exemption becomes effective. The table below summarizes the Department's estimate for the accounts eligible for automatic portability transactions, the number of accounts that would opt out of automatic portability transactions, and the number of executed automatic portability transactions. For more information on how these estimates were calculated, refer to the Affected Entities section of the Regulatory Impact Analysis.
The proposed regulation requires the automatic portability provider to acknowledge in writing that it is a fiduciary upon being engaged by a plan fiduciary. The Department anticipates that a single standard acknowledgement would be included in contracts with plan sponsors. The Department estimates that it would take a legal professional one hour to draft this acknowledgement in the first year, resulting in an hour burden of one hour with an equivalent cost of $159.
Additionally, the Department estimates that 185,000 acknowledgements of fiduciary status
The Department assumes that the acknowledgement of fiduciary status generally would be sent electronically. Therefore, the Department assumes there would be no associated material or postage cost.
The proposal would require the automatic portability provider to provide the administrator of participating plans with a model description of the automatic portability program for plan sponsors to include in their summary plan description (SPD), including fees and expenses, as applicable. The Department anticipates that the automatic portability provider would draft and send the same standard model description to all plans. The Department estimates that drafting the SPD would take a legal professional 10 hours, resulting in an hour burden of 10 hours with an equivalent cost of $1,593 in the first year.
The Department assumes that this document would be sent electronically and thus would not incur any postage or material costs.
The proposal requires automatic portability providers to establish, maintain, and follow written policies and procedures to ensure that they obtain or have access to current and accurate census and contact data on individual participants and IRA owners and to specify standards and timeframes that apply to all automatic portability transactions. The proposal also includes the ability for the automatic portability provider to establish policies and procedures in connection with the limitation on the exercise of discretion. An automatic portability provider will be deemed to satisfy the limited discretion requirement if it establishes, maintains, and follows policies and procedures regarding the process for executing automatic portability transactions.
The Department estimates that it would take a legal professional approximately 10 hours to establish, or modify as applicable, policies and procedures satisfying the requirements in the first year, resulting in an hour burden of 10 hours in the first year with an equivalent cost of $1,593.
The proposal requires automatic portability providers to retain an independent auditor to conduct an annual audit to demonstrate compliance and identify any noncompliance issues. The auditor shall, at a minimum, review: the policies and procedures, a representative sample of the required disclosures, a representative sample of automatic portability transactions, and the requirements of section 4975(d)(25), 4975(f)(12), and these regulations. The auditor shall prepare a written audit report signed by the auditor.
The Department estimates that it would take a clerical professional five hours to collect and provide records to the independent auditor, resulting in an annual hour burden of five hours with an equivalent cost of $317.
The Department estimates that it will take a legal professional three hours to draft the certification in the first year, resulting in an hour burden of three hours and equivalent cost of $478.
The proposal requires that the written audit include certain information, described in the regulatory text. If the automatic portability provider does not have direct access to this information, the proposal would require the partnering recordkeepers and participating plans to provide such information as a condition of receiving the automatic portability provider's services. This obligation may require an automatic portability provider to update requirements with its recordkeepers and plans. The Department estimates that updating the standardized contracts would take a legal professional at the automatic portability provider one hour, resulting in an hour burden of one hour and an equivalent cost of $159.
If the auditor determines the automatic portability provider was not in compliance with the statute and related regulations, the proposal includes an opportunity for self-correction.
As such, the proposal would require the automatic portability provider to establish policies for the corrections permitted by the proposal. The Department assumes that establishing such policies and procedures would take a legal professional 20 hours in the first year, resulting in an hour burden of 20 hours and an equivalent cost of $3,187.
In the case of a violation, the automatic portability provider would be required to correct the violation and document the correction in writing within 30 calendar days of correction. The Department does not expect that an automatic portability provider would have a violation on an annual basis, and the Department acknowledges that the correction and related documentation could vary significantly, depending on the nature of the violation. For the purposes of this analysis, the Department considers the cost on an average annual basis. The Department estimates that, on average, it would take a clerical professional two hours to draft and send the documentation of the correction, resulting in an average annual hour burden of two hours and an equivalent cost of $127.
Under the proposed regulation, within 90 calendar days of the date that the automatic portability provider begins operating an automatic portability transaction program that is intended to rely on prohibited transaction relief, the automatic portability provider must notify the Secretary. Because PTE 2019-02 was issued to a single entity, there was no such requirement in the exemption. However, the Department believes based on the small number of expected automatic portability providers entering the market, that the possible cost burden associated with submitting the simple notice via email to the Department to be roughly $16, which is estimated as 15 minutes of a clerical worker's time with an hourly wage rate of $63.45. This notification needs to be updated to report a change to the legal or operating name(s) of the automatic portability provider that is relying upon the exemption. The Department expects that such a change would be rare and thus does not estimate an associated cost.
The proposed regulation requires the automatic portability provider to disclose fees and compensation to a fiduciary of the employer-sponsored plan and receive an approval in writing in advance of the transaction. This includes fees and compensation received, directly or indirectly, by the automatic portability provider (including its affiliates) for services provided in connection with the automatic portability transaction. The Department assumes that the disclosure would be standard across transactions, requiring an update no more frequently than once a year. The Department requests comment on this assumption.
The Department estimates that preparing the disclosures of fees and compensation would take a legal professional two hours in the first year to draft the disclosure. This results in a burden of two hours and an equivalent cost of $319 in the first year.
The Department assumes that the disclosure and approval would be sent electronically between the automatic portability provider and the plan. Therefore, the Department assumes there would be no associated material or postage cost.
The proposal requires an automatic portability provider to send each individual on whose behalf the individual retirement plan was established an initial notice within 15 calendar days of the individual retirement plan's enrollment or participation in an arrangement that includes the possibility of a future automatic portability transaction executed by the automatic portability provider. The Department estimates that preparing this disclosure would take a legal professional two hours, resulting in an hour burden of two hours and an equivalent cost of $319.
As discussed above, the Department estimates that the disclosures would be sent to an average of 975,35 individuals in the first three years, and that it would take a clerical professional two minutes to prepare and send the disclosures. This results in an average hour burden of 32,512 hours with an average equivalent cost of roughly $2 million per year.
Year 1: 954,786 individuals × 2/60 hours = 31,826 hours. The equivalent cost is estimated as: 31,826 hours × $63.45 = $2,019,372.
Year 2: 976,384 individuals × 2/60 hours = 32,546 hours. The equivalent cost is estimated as: 32,546 hours × $63.45 = $2,065,052.
Year 3: 994,897 individuals × 2/60 hours = 33,163 hours. The equivalent cost is estimated as: 33,163 hours × $63.45 = $2,104,207.
639,538 in the third year. The Department estimates that drafting this notice would take a legal professional two hours in the first year and that preparing and sending each disclosure would take a clerical professional two minutes.
As discussed at the beginning of this section, the Department estimates that 3.9 percent of the notices would be sent by mail. The Department estimates that an automatic portability provider would incur a cost of $0.76 to send each disclosure, including $0.66 for postage and $0.10 for the paper and printing costs of two pages. The hour burden, equivalent cost, postage, and material costs are summarized in the table below.
The proposal requires an automatic portability provider, not later than three business days after an automatic portability transaction is completed, to provide notice to the individual on whose behalf the individual retirement plan was established. As discussed above, the Department estimates that 397,749 automatic portability transactions would occur in first year, 519,606 in the second year, and 630,585 in the third year. The Department estimates that drafting this notice would take a legal professional two hours in the first year and that preparing and sending each disclosure would take a clerical professional two minutes.
As discussed at the beginning of this section, the Department estimates that 3.9 percent of the notices would be sent by mail. The Department estimates that an automatic portability provider would incur a cost of $0.76 to send each disclosure, including $0.66 for postage and $0.10 for the paper and printing costs of two pages. The hour burden, equivalent cost, postage, and material costs are summarized in the table below.
The proposed regulation would require that notices and disclosures to participants and IRA owners be provided in a culturally and linguistically appropriate manner if the address of a recipient is in a county where 10 percent or more of the population is literate only in the same non-English language. In these counties, the automatic portability provider must include in the English versions of all required notices and disclosure, a statement prominently displayed in any applicable non-English language clearly indicating how to access the language services provided by the automatic portability provider. The Department estimates that satisfying this requirement would result in a de minimis cost.
Additionally, the automatic portability provider would be required to provide, upon request, a notice or disclosure in any applicable non-English language. In the 2016-2020 ACS data, 230 counties or county equivalents met or exceeded the 10 percent threshold (rounded to the nearest percent).
A similar analysis conducted by the Department estimated that the average requests for translations of written documents averages 0.098 requests per 1,000 health benefit plan members.
The Department assumes that it would take a clerical professional two minutes to prepare and send each disclosure. The Department assumes that all of the translated notices would be sent by mail. The Department requests comment on this assumption. Additionally, the Department estimates that an automatic portability provider would incur a cost of $0.66 for postage and $0.05 for the material and printing costs of each page. The hour burden, equivalent cost, postage, and material costs are summarized in the table below.
The proposal would require the automatic portability provider to maintain a website with three categories of disclosures: (1) a description of all the fees and compensation received, directly or indirectly, by the automatic portability provider for services provided in connection with the automatic portability transaction; (2) a list of recordkeepers for each employer-sponsored retirement plan with respect to which the automatic portability provider carries out automatic portability transactions; and (3) the number of plans and participants covered by each recordkeeper. The Department assumes that an automatic portability provider would already have such a website, readily available access to the required information, and would only incur costs associated with drafting and posting the required disclosures.
The Department estimates that a senior executive employed by the automatic portability provider would spend one hour providing a web designer the requirements for the disclosures in the first year, resulting in an hour burden of one hour with an equivalent cost of $128.
An automatic portability provider would be required to maintain records sufficient to demonstrate compliance with the requirements of Code section 4975(f)(12) and this regulation. The Department expects adequate records will be automatically generated through the systems created by the automatic portability provider and thus would not create an additional burden.
The proposal would require the records to be made available to any duly authorized employee or representative of the Department of Labor or the Department of the Treasury within 30 calendar days of the date of a written request for such records. The Department estimates that providing records to the Department would take a clerical professional two hours on average to prepare and send requested records, resulting in a per request equivalent cost of $127.
The paperwork burden estimates are summarized as follows:
The Regulatory Flexibility Act (RFA)
The Affected Entities of the Regulatory Impact Analysis identifies automatic portability providers, recordkeepers, and plans as entities potentially impacted by the proposal. While there may be a substantial number of small recordkeepers and plans affected by the proposal, the Department has determined that there would not be a significant impact on these entities.
Section 120 of the SECURE 2.0 Act of 2022 amended Code section 4975 to add a statutory exemption for the receipt of fees and compensation by an automatic portability provider for services provided in connection with an automatic portability transaction. This proposed rule implements the statutory prohibited transaction under Code section 4975 for automatic portability transactions.
When a plan participant intentionally or unintentionally leaves money in a former employer's defined contribution
Default IRAs, while intended to preserve retirement assets in conservatively managed accounts, typically yield only minimal returns for investors while often imposing considerable fees.
Automated portability services allow plan providers to transfer assets into the plan of a participant's new employer, effectively automating roll-ins from Default IRAs established on behalf of the separated employee to consolidate assets into an active, employer-sponsored defined contribution plan.
The Department anticipates an automatic portability provider would be classified as NAICS 522320, Financial Transactions Processing, Reserve, and Clearinghouse Activities. According to the size standards set by the Small Business Administration, entities with NAICS 522320 are considered small if they have average annual receipts less than $47 million.
As discussed in the Regulatory Impact Analysis, the Department assumes that only one entity would rely on the proposed exemption. This entity, RCH, in service of PSN, has stated that the maximum per-transaction fee for its services is $30.
The automatic portability services operations at RCH represent just one portion of the business. However, because the entity is private, the Department does not have access to its total annual receipts. While the Department estimates that the annual receipts of RCH may exceed the small entity size thresholds, the Department cannot confirm. Accordingly, the Department has conducted an analysis of the costs imposed by the proposal.
As discussed in the Regulatory Impact Analysis, the Department assumes that one entity would rely on the proposed exemption. The Department is presenting the estimated costs and costs savings of this entity, RCH/PSN. RCH/PSN currently operates under an individual exemption, PTE 2019-02. The Regulatory Impact Analysis considers the costs and cost savings this proposal would impose, with respect to the requirements under PTE 2019-02.
The Department estimates that the proposal would result in a cost savings for an automatic portability provider operating under the conditions in PTE 2019-02. The table below summarizes the costs and cost savings under the proposal. For more information on these estimates, refer to the Cost section of the Regulatory Impact Analysis.
The proposal is intended to align with the requirements in the individual exemption PTE 2019-02. The proposal also incorporates the statutory exemption requirements in the SECURE 2.0 Act and supplements them accordingly. While PTE 2019-02 and the statutory exemption, as supplemented by this proposal, differ slightly, the Department has worked to ensure that the requirements are complimentary. Because PTE 2019-02 and the statutory exemption provide prohibited transaction relief for the same categories of transactions, RCH/PSN will only need to rely on either the statutory or individual exemption. Therefore, it is important for the requirements of the statutory and individual exemptions to be aligned.
Please note that RCH/PSN most likely will rely on the statutory exemption, because it has an unlimited term while the class exemption is limited to a five-year term that expires on July 31, 2024. The Department expects that RCH/PSN will rely upon the statutory exemption and this proposal once it becomes effective rather than PTE 2019-02. Because PTE 2019-02 is an individual exemption granted solely to RCH and its affiliates, any other automatic portability providers that enter the market will only be able to rely upon the statutory exemption and this proposal, so there will be no duplicative requirements imposed on them.
This section of the IRFA analysis addresses alternatives the Department considered when developing the proposal. As stated above in this Regulatory Impact Analysis, the Department estimates that only one automatic portability provider would operate under the proposal. Therefore, the regulatory alternatives considered for small entities does not differ from those considered in the Regulatory Impact Analysis. The Department considered the following alternatives:
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A more in-depth discussion of the regulatory alternatives and the Department's decision process is included in the Regulatory Alternatives section of the Regulatory Impact Analysis above.
Title II of the Unfunded Mandates Reform Act of 1995 requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by state, local, and tribal governments, in the aggregate, or by the private sector.
Executive Order 13132 outlines fundamental principles of federalism, and requires adherence by Federal agencies to specific criteria in the process of their formulation and implementation of policies that have “substantial direct effects” on the states, the relationship between the national government and states, or on the distribution of power and responsibilities among the various levels of government.
In the Department's view, this proposal will not have federalism implications because it would not have direct effects on the states, on the relationship between the national government and the states, nor on the distribution of power and responsibilities among various levels of government. The Department welcomes input from affected states regarding this assessment.
This regulation is issued pursuant to the authority in section 505 of ERISA (Pub. L. 93-406, 88 Stat. 894; 29 U.S.C. 1135), section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 237, Public Law 117-328, 136 Stat. 4459, and under Secretary of Labor's Order No. 1-2011, 77 FR 1088 (Jan. 9, 2012).
Employee benefit plans, Individual retirement accounts, Pensions, Plans.
For the reasons set forth in the preamble, the Department is proposing to amend 29 CFR part 2550 as follows:
29 U.S.C. 1135 and Secretary of Labor's Order No. 1-2011, 77 FR 1088 (January 9, 2012). Sec. 102, Reorganization Plan No. 4 of 1978, 5 U.S.C. App. At 727 (2012). Sec. 2550.401c-1 also issued under 29 U.S.C. 1101. Sec. 2550.404a-1 also issued under sec. 657, Pub. L. 107-16, 115 Stat 38. Sec. 2550.404a-2 also issued under sec. 657 of Pub. L. 107-16, 115 Stat. 38. Sections 2550.404c-1 and 2550.404c-5 also issued under 29 U.S.C. 1104. Sec. 2550.408b-1 also issued under 29 U.S.C. 1108(b)(1). Sec. 2550.408b-19 also issued under sec. 611, Pub. L. 109-280, 120 Stat. 780, 972. Sec. 2550.412-1 also issued under 29 U.S.C. 1112. Sec. 2550.4975f-12 also issued under Pub. L. 117-328, 136 Stat. 4459.
(a)
(2)
(i) From an individual retirement plan which is established on behalf of an individual and to which amounts were transferred under Code section 401(a)(31)(B)(i),
(ii) To an employer-sponsored retirement plan described in clause (iii), (iv), (v), or (vi) of Code section 402(c)(8)(B) (other than a defined benefit plan) in which such individual is an active participant, and
(iii) After such individual has been given advance notice of the transfer and has not affirmatively opted out of such transfer.
(3)
(4) Code section 4975(d)(25) does not contain an exemption for other acts described in Code section 4975(c)(1)(D) and (E) (relating to transfer to, or use by or for the benefit of, a disqualified person of the income or assets of a plan and to fiduciaries as defined in Code section 4975(e)(3) dealing with the income or assets of plans in their own interest or for their own account) that are not services provided in connection with automatic portability transactions. Services shall not be considered provided in connection with an automatic portability transaction if the services would have been provided in the absence of an automatic portability transaction or anticipation of a future automatic portability transaction. Except as described in paragraph (a)(1) of this section, Code section 4975(d)(25) does not contain an exemption for acts described in Code section 4975(c)(1)(F) (relating to fiduciaries as defined in Code section 4975(e)(3) receiving consideration for their own personal account from any party dealing with a plan in connection with a transaction involving the income or assets of the plan). Such acts are separate transactions not described in Code section 4975(d)(25). Code section 4975(d)(25) also does not contain an exemption from other provisions of the Code, such as section 401, or other provisions of law which may impose requirements or restrictions relating to the transactions which are exempt under section 4975(d)(25).
(b) This paragraph (b) sets forth conditions that must be satisfied in order for an automatic portability transaction to be covered by the statutory exemption in Code section 4975(d)(25).
(1)
(i) Upon being engaged by an employer-sponsored retirement plan; and
(ii) In the notices to individuals described in paragraphs (b)(5)(iii) through (v) of this section.
(2)
(i) Do not exceed reasonable compensation, as the term is defined in 26 CFR 54.4975-6(e); and
(ii) Are fully disclosed to and approved in writing in advance of the transaction by a fiduciary of the employer-sponsored retirement plan described in paragraph (a)(2)(ii) of this section which is independent of the automatic portability provider. The information that shall be disclosed includes the information that is required to be disclosed under § 2550.408b-2(c) by a covered service provider as defined in § 2550.408b-2(c)(1)(iii)(A) (services as a fiduciary within the meaning of ERISA section 3(21)) and § 2550.408b-2(c)(1)(iii)(B) (recordkeeping services).
(iii) An automatic portability provider (including its affiliates) may not receive or pay third-party fees or compensation to any party in connection with an automatic portability transaction. This restriction on third-party compensation does not apply to a fee paid by the sponsor of an employer-sponsored retirement plan that is in lieu of a fee imposed on an individual retirement plan owner or a fee that is shared with another automatic portability provider, as long as the overall fee associated with the automatic portability transaction does not increase as compared to the fees disclosed to the plan administrator and individuals in the notices described in paragraphs (b)(5)(ii) and (iii) of this section. This restriction does not prevent an automatic portability provider (or its affiliates) from receiving fees for services provided to an individual retirement plan or employer-sponsored retirement plan that are in addition to services provided in connection with the execution of automatic portability transactions. The prohibited transaction relief provided in Code section 4975(d)(25) does not apply to fees or compensation paid by an employer-sponsored retirement plan or to fees or compensation for such additional services.
(iv)
(3)
(4)
(ii) The automatic portability provider shall not restrict or limit the ability of unrelated third parties to develop, market, and/or maintain a locate-and-match process or to execute automatic portability transactions separate from the automatic portability provider. The automatic portability provider also shall not restrict the ability of an employer-sponsored retirement plan, individual retirement plan provider (including custodians, trustees, and issuers), or recordkeeper to engage other automatic portability providers to execute automatic portability transactions.
(5)
(ii)
(iii)
(A) A description of the automatic portability transaction, including that the automatic portability provider will send a notice at least 60 calendar days, but no more than 90 calendar days, in advance of executing an automatic portability transaction;
(B) A description of the applicable account fees that will be charged in connection with the automatic portability transaction;
(C) A clear and prominent description of the individual's right to affirmatively elect not to participate in the transaction, the other available distribution options, and the procedures to take advantage of such options;
(D) The contact information for the automatic portability provider and the individual retirement plan provider (if not the automatic portability provider), including toll-free customer service numbers; and
(E) The right to designate a beneficiary and the procedures to do so, including the appropriate party to contact if the automatic portability provider is not the provider of the individual retirement plan.
(iv)
(A) A description of the automatic portability transaction and a complete and accurate statement of all fees which will be charged and all compensation which will be received by the automatic portability provider (including its affiliates) in connection with the transaction. The description of the automatic portability transaction shall include that the individual retirement plan assets will not be transferred for at least 60 calendar days from the date of the notice, that the individual has been matched with an account in an employer-sponsored retirement plan of a current employer, the name of the employer, and the name of the plan;
(B) A statement requesting the individual's affirmative consent to transfer the assets from the individual retirement plan to the account in the employer-sponsored retirement plan;
(C) A description of the individual's right to affirmatively elect not to participate in the transaction, the other available distribution options, the deadline by which the individual must make an election, and the procedures for doing so. The description shall indicate that if the individual does not affirmatively consent or elect not to participate by the deadline, the automatic portability provider will consider the individual to have given consent to the automatic portability transaction;
(D) The contact information for the automatic portability provider and the individual retirement plan provider (if not the automatic portability provider) including toll-free customer service numbers that the individual may contact to make an election, pursue other available distributions options, or for other information or assistance with the automatic portability program; and
(E) The right to designate a beneficiary and the procedures to do so for the individual retirement plan if it is not transferred to an employer-sponsored retirement plan in which the individual is an active participant, including the appropriate party to contact if the automatic portability provider is not the provider of the individual retirement plan.
(v)
(A) The actions taken by the automatic portability provider with respect to the individual retirement plan, including that the individual was matched with an account in an employer-sponsored retirement plan of the individual's current employer;
(B) All relevant information regarding the location and amount of any transferred assets which includes, but is not limited to, the name of the employer and the name of the plan;
(C) A statement of fees charged against the individual retirement plan
(D) A customer service telephone number at which the individual can contact the automatic portability provider.
(vi)
(B)
(C)
(
(
(D)
(vii)
(6)
(i) National Change of Address records;
(ii) Two separate commercial locator databases; and
(iii) Any internal databases maintained by the automatic portability provider. If a valid address is not obtained from the automated checks, the automatic portability provider must also perform a manual internet-based search. These verification steps must be performed at least twice in the first year an account is entered into the automatic portability provider system and once a year thereafter.
(7)
(8)
(9)
(i) The process to ensure that an employer-sponsored retirement plan that accepts transfers into the plan in connection with an automatic portability transaction designates a representative that will be responsible for monitoring transfers into the plan due to automatic portability transactions and investment of amounts received;
(ii) The process and timing for liquidating the assets of the individual retirement plan to cash and closing the individual retirement plan;
(iii) The process for verifying and validating that the correct fees are withdrawn from the individual retirement plan;
(iv) The process and timing for transmitting assets to employer-sponsored retirement plans;
(v) The process for verifying the assets were received by the employer-sponsored retirement plan; and
(vi) The process for sending all required notices to plan participants or individuals on whose behalf an individual retirement plan is established, in accordance with paragraph (h) of this section.
(c)
(2)
(3)
(4)
(i) The total number of completed automatic portability transactions during the audit period;
(ii) Whether the notices in the reviewed sample met the timing and content requirements of Code section 4975(f)(12) and these regulations and were delivered in a manner reasonably designed to ensure affected individuals would receive the notices;
(iii) Whether any required notices were returned as undeliverable and what steps were taken by the automatic portability provider to address undeliverable notices;
(iv) Whether the notices in the reviewed sample were written in a manner reasonably calculated to be understood by the average intended recipient, including whether the notices include inaccurate or misleading statements;
(v) Whether the appropriate accounts in the employer-sponsored retirement plan in the reviewed sample received all the assets due as a result of the automatic portability transaction;
(vi) A summary of the fees individuals were charged by the automatic portability provider (and any affiliates) for services provided in connection with automatic portability transactions, including whether those fees increased since the last report;
(vii) Whether the fees and compensation received by the automatic portability provider (including its affiliates) in connection with the automatic portability transactions are consistent with the fees authorized by appropriate plan fiduciaries and did not exceed reasonable compensation, as described in paragraph (b)(2)(i) of this section;
(viii) Whether all requirements of Code section 4975(f)(12) and these regulations were satisfied with respect to:
(A) The policies and procedures; and
(B) The transactions and disclosures that were reviewed;
(ix) A summary of compliance issues reported to or discovered by the auditor, the auditor's recommendations, and the extent to which the automatic portability provider has addressed or is addressing the issues pursuant to the correction procedures in paragraph (c)(9) of this section;
(x) Any other recommendations from the auditor to improve the policies and procedures and overall execution of automatic portability transactions to ensure compliance with the requirements of Code section 4975(f)(12) and these regulations; and
(xi) A description of the auditor's methodology and procedures in performing the audit.
(5)
(i) The number of mandatory distributions into individual retirement plans described in paragraph (a)(2)(i) of this section for which the automatic portability provider is conducting searches as required by paragraph (b)(6) of this section; and
(ii) The number of individual retirement plans described in paragraph (a)(2)(i) of this section:
(A) Which have been transferred to designated beneficiaries;
(B) For which the automatic portability provider is searching for next of kin due to the death of an account holder without a designated beneficiary; and
(C) That were reduced to a zero balance while in the automatic portability provider's custody.
(6)
(7)
(8)
(9)(i)
(A) Either the violation did not result in losses to the individual retirement plan or the automatic portability provider made the individual retirement plan whole for any resulting losses;
(B) The automatic portability provider corrects the violation and documents the correction in writing within 30 calendar days of correction;
(C) The correction occurs no later than 90 calendar days after the automatic portability provider learned of the violation or reasonably should have learned of the violation; and
(D) All instances of noncompliance and accompanying corrections are reported in writing to the auditor.
(ii)
(10)
(i)(A) Engaging in a systematic pattern or practice of violating any provision of Code section 4975(f)(12) or this regulation;
(B) Intentionally violating any provision of Code section 4975(f)(12) or this regulation; or
(C) Providing materially misleading information to the Secretary of Labor, Secretary of the Treasury, or the auditor in connection with automatic portability transactions; or
(ii) The subject of a foreign or domestic criminal conviction:
(A) Involving or arising out of the conduct of the automatic portability program or any automatic portability transaction; or
(B) For any felony involving larceny, theft, robbery, extortion, forgery, counterfeiting, fraudulent concealment, embezzlement, fraudulent conversion, misappropriation of funds or securities, or conspiracy to commit any such crimes or a crime in which any of the foregoing crimes is an element.
(d)
(i) A description of all the fees and compensation received, directly or indirectly, by the automatic portability provider for services provided in connection with the automatic portability transaction;
(ii) A list of recordkeepers for each employer-sponsored retirement plan with respect to which the automatic portability provider carries out automatic portability transactions; and
(iii) The number of plans and participants covered by each recordkeeper.
(2) The website is not required to be limited to the information described in paragraphs (d)(1)(i) through (iii) of this section, and may include other information, for example, about the automatic portability provider, the automatic portability program, or other services provided to employer-sponsored retirement plans or individual retirement plans, but the automatic portability provider must ensure that the information described in paragraphs (d)(1)(i) and (ii) of this section is displayed in a way that clearly sets forth the automatic portability transaction fees and compensation separately from other fees and compensation.
(e)
(1) Liability caused by an error, a misrepresentation, or misconduct of a party independent of the automatic portability provider and its affiliates, or
(2) Damages arising from acts outside the control of the automatic portability provider.
(f)
(ii) No prohibited transaction will be considered to have occurred solely on the basis of the unavailability of such records if they are lost or destroyed due to circumstances beyond the control of the automatic portability provider before the end of the six-year period. An automatic portability provider's failure to maintain the records necessary to determine whether the conditions of Code section 4975(f)(12) and this regulation have been met will result in the loss of the relief provided by Code section 4975(d)(25) and this regulation only for the transaction or transactions for which such records are missing or have not been maintained.
(2) The records maintained to demonstrate compliance with the requirements of Code section 4975(f)(12) and this regulation shall be made available to any duly authorized employee or representative of the Department of Labor or the Department of the Treasury within 30 calendar days of the date of a written request for such records by the Department of Labor or the Department of the Treasury.
(g)
(2) The term
(3) The term
(A) An individual retirement account described in Code section 408(a); and
(B) An individual retirement annuity described in Code section 408(b).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS, upon request from the U.S. Navy (Navy), issues these regulations pursuant to the Marine Mammal Protection Act (MMPA) to govern the taking of marine mammals during the maintenance and pile replacement construction activities at the Ammunition Wharf at Naval Magazine (NAVMAG) Indian Island in Puget Sound, Washington, over the course of 5 years (2024 to 2029). These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species and their habitat, and establish requirements pertaining to the monitoring and reporting of such taking.
Effective October 1, 2024, until September 30, 2029.
A copy of the Navy's application, NMFS' final rule, and other supporting documents may be obtained online at
Robert Pauline, Office of Protected Resources, NMFS,
We received an application from the Navy requesting 5-year regulations and authorization to incidentally take multiple species of marine mammals. This rule establishes a framework under the authority of the MMPA (16 U.S.C. 1361
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to 5 years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the Mitigation section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 217, subpart I provide the legal basis for issuing this rule containing 5-year regulations, and for any subsequent LOAs. As directed by this legal authority, this rule contains mitigation, monitoring, and reporting requirements.
The following is a summary of the major provisions of this final rule regarding Navy construction activities. These provisions include, but are not limited to:
• Monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities;
• Shutdown of construction activities under certain circumstances to avoid injury of marine mammals;
• Soft start for impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power; and
• Use of bubble curtains to attenuate sound levels when impact driving steel piles.
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
In May 2021, NMFS received an application from the Navy requesting authorization to take small numbers of eight species of marine mammals incidental to construction activities at the Ammunition Wharf at NAVMAG Indian Island. The Navy requested regulations that would establish a process for authorizing such take via an LOA. NMFS reviewed the Navy's application, and sent initial questions regarding the application to the Navy on October 5, 2021. The Navy addressed the questions and submitted a revised LOA application on March 24, 2022. After additional questions were sent by NMFS, the Navy submitted another revised application on May 13, 2022, and the revised application was deemed adequate and complete on June 9, 2022. The application was published for public review and comment on August 4, 2022 (87 FR 47722). Following publication of the application, the Navy delayed the project start date by 1 year. We published a notice of the proposed rulemaking in the
The regulations will be valid for 5 years, from October 1, 2024, until September 30, 2029, and allow NMFS to authorize the Navy to take eight species of marine mammals by Level B harassment and, additionally, one of these species by Level A harassment, incidental to construction activities related to the maintenance and pile replacement project at the Ammunition Wharf at NAVMAG Indian Island in Puget Sound, Washington. Neither the Navy nor NMFS expect serious injury or mortality to result from this activity.
The Navy plans to replace defective structural concrete and fender piles as well as conduct maintenance and repair activities on the Ammunition Wharf at NAVMAG Indian Island. Maintaining this wharf structure is vital to sustaining the Navy's mission and ensuring readiness. The Navy plans to replace up to 118 structural concrete piles or fender piles, conduct maintenance, and engage in repair activities over a 7-year period on the Ammunition Wharf. However, the LOA may only be valid for 5 years. The Navy plans to conduct necessary work, including impact and vibratory pile driving, to replace and maintain the wharf structure. Under the 5-year rule, up to 110 structurally unsound structural piles or fender piles will be replaced. Structural concrete piles will be replaced with 24-inch concrete piles and old fender piles will be replaced with 14-inch steel H piles or 18.75-inch composite piles. Up to eight steel piles may also be installed in addition to the structural concrete piles if necessary. The 2 years following the expiration of the rule will consist of removal and installation of concrete piles, and maintenance and repair work. The Navy will request incidental take authorizations as necessary for the final 2 years of work.
The regulations and LOA will be valid for a period of 5 years from October 1, 2024, until September 30, 2029. All pile driving will be conducted during the prescribed in-water work window of October 1 to January 15 to avoid conducting activities when juvenile salmonids are most likely to be present. A conservative estimate of annual pile driving days over the duration of the 5-year LOA is based on the assumption that pile driving rates will be relatively slow and will take approximately 24 days per year with up to 22 concrete piles or fender piles and up to 2 steel piles installed per year. Conservatively, one concrete pile will be installed per day using jetting followed by proofing with an impact hammer. There may be extra days for additional proofing or weather/equipment delays. Actual daily production rates may be higher (often two piles are installed in a day), resulting in fewer actual pile driving days.
NAVMAG Indian Island is located near Port Hadlock in Jefferson County, Washington, southeast of Port Townsend, at the northeast corner of the Olympic Peninsula (figure 1). The island is approximately 8 kilometers (km) long and 2 km wide, and comprises approximately 11 km square (km
NAVMAG Indian Island occupies approximately 19 km of shoreline within Port Townsend Bay. There are two marine structures located at NAVMAG Indian Island, the Ammunition Wharf and the Small Craft Pier, but only the Ammunition Wharf activities are addressed in this rule. Its primary mission is to load, offload, and provide storage and logistics management for ordnance used on Navy vessels.
NAVMAG Indian Island is the West Coast ammunition ordnance storage center supporting the U.S. Navy Pacific Fleet. Its primary mission is to load, offload, and provide storage and logistics management for ordnance used on Navy vessels. Construction of the Ammunition Wharf was completed in 1979, and there are a total of 1,783 piles in the Ammunition Wharf: 1,391 structural piles, 306 fender piles and 86 Operations Building piles.
The Ammunition Wharf was originally constructed using precast concrete piles. As a result of the steam curing process used at that time, an unknown quantity of piling is susceptible to a potentially catastrophic condition called Delayed Ettringite Formation (DEF). DEF is a result of high early temperatures in the concrete, which prevents the normal formation of ettringite. DEF occurs rapidly and without warning.
The Navy schedules inspections on waterfront facilities that usually occur every 3 years, but due to DEF at the Ammunition Wharf, inspections for that structure occur every two years. Based on the most recent inspection in 2021, there are 161 piles (158 under Ammunition Pier and three under the Operations Building at Ammunition Wharf) with some appreciable level of DEF damage (most or all of those piles will be replaced). More piles with DEF damage may be detected and therefore may need to be replaced over the duration of the LOA.
Table 1 shows the details of the construction activities which are described below in greater detail.
After demolition of the deck portions of the wharf located above the waterline, three methods of pile removal (cutting/chipping, clamshell removal, and direct pull) may be used. However, hydraulic cutting will be the primary method of pile removal due to working under the wharf and the DEF damage to the piles. In some cases, piles may be cut at or below the mudline, with the below-mudline portion of the pile left in place. None of these pile removal activities are anticipated to result in take of marine mammals; therefore, they are not discussed further beyond the brief elaboration on jetting and pile cutting provided below.
Three methods of pile installation for concrete and steel piles will be used (vibratory, jetting, and impact) depending on the type of pile and site conditions. Only one pile will be installed at a time; no simultaneous pile driving will occur. These methods are described below.
The primary methods of concrete pile installation will be water jetting to within 3 meters (m) of final depth and then impact pile driving to set or proof the final 3 m. Water jetting aids the penetration of a pile into a dense sand or sandy gravel stratum. Water jetting utilizes a carefully directed and pressurized flow of water at the pile tip, which disturbs a ring of soils directly beneath it. The jetting technique liquefies the soils at the pile tip during pile placement, reducing the friction and interlocking between adjacent sub grade soil particles around the water jet. For load-bearing structures, an impact hammer is typically required to strike a pile a number of times to ensure it has met the load-bearing specifications; this is referred to as “proofing.” Load-bearing piles installed with water jetting will still need to be proofed with an impact pile driver.
A vibratory hammer will be used to install the structural steel piles and fender piles. The primary method of pile installation for steel piles will be vibratory to within 3 m of final depth and then impact pile driving to set or proof the final 3 m. The vibratory pile driver method is a technique that may be used in pile installation where the substrate allows. Use of this technique will be limited in very hard substrates. This process begins by placing a choker cable around a pile and lifting it into vertical position with a crane. The pile is then lowered into position and set in place at the mudline. The pile is held steady while the vibratory driver installs the pile to the required tip elevation. In some substrates, a vibratory driver may be unable to advance a pile until it reaches the required depth. In these cases, an impact hammer will be used to advance the pile to the required depth.
Impact hammers will be used to proof concrete piles that have been jetted to depth or steel piles that have been driven using the vibratory method. Proofing involves impact pile driving to determine if the pile has been driven to the proper load-bearing specifications within the substrate. Proofing of concrete piles at the Ammunition Wharf in 2015 and 2016 required 200 to 600 strikes per pile to complete (Navy, 2016).
Impact hammers have a heavy piston that moves up and down striking the top of the pile and driving the pile into the substrate from the downward force of the hammer. Impact hammer pile proofing can typically take a minute or less to 30 minutes depending on pile type, pile size, and conditions (
The Navy states that piles will be advanced to the extent practicable with a vibratory driver and only impact driven when required for proofing or when a pile cannot be advanced with a vibratory driver due to hard substrate conditions.
Existing piles that are structurally sound may require additional repair activities. Such activities could include wetwell repair; recoating of piles and mooring fittings; installation or replacement of passive cathode protection systems; repair and replacement of pile caps; concrete repair; mooring foundation and substructure repair; replacement of components (
Operation of the following equipment types is not reasonably expected to result in take of marine mammals and will not be discussed further beyond the brief summaries provided below:
• Jetting produces much lower sound levels (approximately 147.5 decibel (dB) Root Mean Square (RMS); NAVFAC SW, 2020) than vibratory pile driving 166 dB RMS (Navy, 2015). The sounds produced by jetting are of similar frequencies to the sounds produced by vessels, and are anticipated to diminish to background noise levels (or be masked by background noise levels) in Port Townsend Bay.
• Hydraulic cutting will be used be used to assist with removal of piles. Similar to jetting, the sounds produced by cutting are of similar frequencies to the sounds produced by vessels (NAVFAC SW, 2020), and are anticipated to diminish to background noise levels (or be masked by background noise levels) in Port Townsend Bay relatively close to the Ammunition Wharf. Cutting of 24-inch concrete piles also produces much lower sound levels (approximately 141.4 dB RMS; (NAVFAC SW, 2020)) than vibratory pile driving 166 dB RMS (Navy, 2015).
Mitigation, monitoring, and reporting measures are described in detail later in
A notice of NMFS' proposed rulemaking to the Navy was published in the
NMFS received three letters from private citizens during the public comment period. These comments were outside the scope of this rule. There are no changes from the proposed to the final rulemaking as a result of these comments.
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species. NMFS fully considered all of this information, and we refer the reader to these descriptions instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs;
Table 2 lists all species or stocks that could occur during this activity, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no serious injury or mortality is expected to occur, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species or stocks and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All stocks managed under the MMPA in this region are assessed in NMFS' U.S. Pacific Marine Mammal Stock Assessment Report. All values presented in table 2 are the most recent available at the time of publication and are available online at:
As indicated above, all 10 species (with 13 managed stocks) in table 2 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur. However, no take is authorized for killer whales and humpback whales for the reasons provided in the
A detailed description of the species likely to be affected by the Navy's construction activities, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Not all marine mammal species have equal hearing capabilities (
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information.
The effects of underwater noise from the Navy's construction activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the project area. The notice of the proposed rulemaking (88 FR 74113, October 30, 2023) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from the Navy's construction activities on marine mammals and their habitat. That information and analysis is referenced in this final rule and is not repeated here; please refer to the notice of the proposed rulemaking (88 FR 74113, October 30, 2023).
This section provides an estimate of the number of incidental takes that may be authorized under this final rule, which will inform both NMFS' consideration of “small numbers,” and the negligible impact determinations.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes will be primarily by Level B harassment, as use of the acoustic sources (
As described previously, no serious injury or mortality is anticipated or authorized for this activity. Below, we describe how the authorized take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and (4) the number of days of activities. We note that while these factors can contribute to a basic calculation to provide an initial prediction of potential takes, additional information that can qualitatively inform take estimates is also sometimes available (
NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur permanent threshold shift (PTS) of some degree (equated to Level A harassment).
The Navy's planned activity includes the use of continuous (vibratory hammer source type) and impulsive (impact hammer) sources, and therefore the RMS SPL thresholds of 120 and 160 dB re 1 μPa are applicable.
These thresholds are provided in the table 4 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS' 2018 Technical Guidance, which may be accessed at:
Here, we describe operational and environmental parameters of the activity that are used in estimating the area ensonified above the acoustic thresholds, including source levels and transmission loss (TL) coefficient.
Here, we describe operational and environmental parameters of the activity that are used in estimating the area ensonified above the acoustic thresholds, including source levels and TL coefficient.
The sound field in the project area is the existing background noise plus additional construction noise from the project. Marine mammals are expected to be affected by sound generated by the primary components of the project (
Data from prior pile driving projects at the Naval Base Kitsap Bangor and Bremerton waterfronts were reviewed in the analysis. The representative sound pressure levels used in the analysis are presented in table 5.
For vibratory pile driving distances to the PTS thresholds, the TL model described above incorporated the auditory weighting functions for each hearing group using a single frequency as described in the NMFS Spreadsheet (NMFS, 2018). For impact pile driving distances to the PTS thresholds for 36-inch steel pile and 24-inch concrete pile, the TL model described above incorporated frequency weighting adjustments by applying the auditory weighting function over the entire 1-second (sound exposure level) SEL spectral data sets from impact pile driving. If a source level for a particular pile size was not available, the next highest source level was used to produce a conservative estimate of areas above threshold values.
In order to calculate distances to the Level A harassment and Level B harassment thresholds for the methods and piles being used in this project, the Navy used acoustic monitoring data from various similar locations to develop source levels for the different pile types, sizes, and methods planned for use (table 5).
A bubble curtain will be used to minimize the noise generated by impact driving of steel pipe piles. Note that impact pile driving of steel piles will only occur if it is necessary to install the 36-inch steel piles and none are currently planned to be installed. If steel piles became necessary then a maximum of 2 piles will be installed within the 5-year effective period of the LOA. The bubble curtain is expected to attenuate impact pile driving sound levels an average of 8 dB based on past performance during similar Navy projects in Puget Sound (Navy, 2015); therefore, 8 dB was subtracted from values in table 5 prior to modeling the behavioral and PTS thresholds for impact pile driving steel pipe piles. For the cumulative SEL PTS thresholds, auditory weighting functions were applied to the attenuated 1-second SEL spectra for steel pipe piles.
TL is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current,
The recommended TL coefficient for most nearshore environments is the practical spreading value of 15. This value results in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions, which is the most appropriate assumption for the Navy's activities. The Level B harassment zones and areas for the Navy's activities are shown in table 6.
The ensonified area associated with Level A harassment is more technically challenging to predict due to the need to account for a duration component. Therefore, NMFS developed an optional User Spreadsheet tool to accompany the Technical Guidance that can be used to relatively simply predict an isopleth distance for use in conjunction with marine mammal density or occurrence to help predict potential takes. We note that because of some of the assumptions included in the methods underlying this optional tool, we anticipate that the resulting isopleth estimates are typically going to be overestimates of some degree, which may result in an overestimate of potential take by Level A harassment. However, this optional tool offers the best way to estimate isopleth distances when more sophisticated modeling methods are not available or practical. For stationary sources such as impact and vibratory driving, the optional User Spreadsheet tool predicts the distance at which, if a marine mammal remained at that distance for the duration of the activity, it would be expected to incur PTS.
The isopleths generated by the User Spreadsheet used the same TL coefficient as the Level B harassment zone calculations (
In this section we provide information about the occurrence of marine mammals, including density or other relevant information that will inform the take calculations. We describe how the information provided above is brought together to produce a quantitative take estimate for each species.
To quantitatively assess potential exposure of marine mammals to noise levels from pile driving over the NMFS threshold guidance, the following equation was first used to provide an estimate of potential exposures within estimated harassment zones:
Exposure estimate = N × Level B harassment zone (km
Note that the area of the harassment zone is truncated by land masses surrounding the area (
In addition, local occurrence data from prior monitoring efforts, discussed in the next paragraph, was used as a supplement to estimate potential occurrence of harbor seals within the Level A harassment zones. This method is conservative in providing estimates of potential exposure above the total given using the aforementioned equation that we equate here with Level A harassment.
For harbor seals, which were the primary species found within 1,000 m of the Ammunition Wharf during pile driving monitoring from 2014 to 2016 and 2020 (Navy, 2014, 2016, 2021), a daily rate of harbor seal occurrence was determined for vibratory installation of fender piles for the Level A harassment zones. Only harbor seals were observed during pile driving monitoring (Navy, 2016, 2020) and weekly marine mammal surveys (2022) at NAVMAG Indian Island Ammunition Wharf with the exception of a single harbor porpoise and a single California sea lion. The site-specific data was used to estimate take only for harbor seals at a rate of 0.5 seals per day from concrete impact driving and eight seals per day from steel impact driving, based on the different estimated zone sizes.
During the site-specific monitoring efforts discussed above, only harbor seals were observed during pile driving monitoring (Navy, 2016, 2020) and weekly marine mammal surveys (2022) at NAVMAG Indian Island Ammunition Wharf, with the exception of a single harbor porpoise and a single California sea lion. For species other than harbor seal—for which use of the available density information and the equation given above provide low calculated take estimates (described in species-specific sections below)—it was assumed between one (
The density estimates given in table 10 come from the Pacific Navy's Marine Species Density Database (NMSDD), Naval Facilities Engineering Systems Command (NAVFAC) Pacific Technical Report (Navy, 2020) and Smultea
Note that the largest Level B harassment zone will be generated during vibratory driving. The Level B harassment zone for an impact hammer will be encompassed by the larger Level B harassment zone from the vibratory driver. Impact pile driving was assumed
It is important to note that the successful implementation of mitigation methods (
Most gray whales in Puget Sound utilize the feeding areas in northern Puget Sound around Whidbey Island and in Port Susan in March through June with a few individual sightings occurring year-round that are not always associated with feeding areas. Therefore, gray whales are included in the take authorization. The majority of in-water work will occur during the fall and winter when gray whales are less likely to be present in Puget Sound. Therefore, based on a low probability of occurrence within the vibratory harassment zones, the Navy used the formula described above to calculate estimated exposures. The formula estimated zero takes per year; however, due to the uncertainty of gray whale movements and the large area of exposure during vibratory driving of 36-inch steel piles, the Navy has requested and NMFS has assumed take by Level B harassment at a rate of one animal per year.
To protect gray whales from noise impacts, the Navy will implement a shutdown if protected species observers (PSO) see gray whales approaching or within any harassment zone. A PSO will be stationed at locations from which the injury zone and behavioral zone for impact and vibratory pile driving are visible and will implement shutdown if a whale approaches or enters either zone. With the implementation of monitoring, even if a whale enters an injury zone, shutdown would occur before cumulative exposure to noise levels that would result in PTS could occur. Because pile driving will be shut down if whales are in the injury zone, no Level A harassment take has been requested or authorized by NMFS. In summary, the Navy has requested, and NMFS has authorized one take of gray whale by Level B harassment each year for the duration of the 5-year LOA.
Minke whales in Washington inland waters typically feed in the areas around the San Juan Islands and along banks in the Strait of Juan de Fuca. Minke whales are infrequent visitors to Puget Sound, especially east of Admiralty Inlet. When present, minke whales are usually seen singly or in pairs. Therefore, based on a low probability of occurrence within
To protect minke whales from noise impacts, the Navy will implement a shutdown if PSOs see minke whales approaching or within any harassment zone. A PSO will be stationed at locations from which the injury zone and behavioral zone for impact and vibratory pile driving are visible and will implement shutdown if a whale approaches or enters either zone. PSOs may be stationed on boats to observe a greater portion of the shutdown zone than is visible from land-based locations. With the implementation of monitoring, even if a whale enters an injury zone, shutdown would occur before cumulative exposure to noise levels that would result in PTS could occur. Because pile driving will be shut down if whales are in the injury zone, no Level A harassment take has been requested or will be authorized by NMFS. In summary, although minke whales are rare in the project area, the Navy has requested and NMFS has assumed one take of minke whale by Level B harassment each year for the duration of the 5-year LOA.
Dall's porpoises are most abundant in the Strait of Juan de Fuca and Haro Strait in the San Juan Islands area, but may be present in Puget Sound year-round. Group size is usually two to four, although larger groups are often sighted (Anderson
To protect Dall's porpoises from noise impacts, the Navy will implement a shutdown if PSOs see porpoises approaching or inside of any harassment zone. A PSO will be stationed at locations from which the harassment zones for impact and vibratory pile driving are visible and will implement shutdown if a porpoise approaches or enters any zone. With the implementation of monitoring, even if a Dall's porpoise enters an injury zone, shutdown would occur before cumulative exposure to noise levels that would result in PTS could occur. Because pile driving will be shut down if porpoises are in the injury zone, no Level A harassment take has been requested or will be authorized. In summary, although Dall's porpoises are rare in the project area, the Navy has requested, and NMFS has assumed take of 30 Dall's porpoises (6 per year) by Level B harassment over the 5-year LOA period.
Harbor porpoises may be present in all major regions of Puget Sound throughout the year. Group sizes ranging from 1 to 150 individuals were reported in aerial surveys conducted from summer 2013 to spring 2016, but mean group size was 1.7 animals (Smultea
The Navy will implement a shutdown if porpoises are seen by PSOs entering or within any harassment zone in order to protect harbor porpoises from noise impacts. A monitor will be stationed at locations from which the injury and behavioral harassment zones for impact and vibratory pile driving are visible and will implement shutdown if a porpoise approaches or enters any harassment zone. With the implementation of monitoring, even if a harbor porpoise enters an injury zone, shutdown would occur before cumulative exposure to noise levels that would result in PTS could occur. Because pile driving will be shut down if porpoises are in the injury zone, no Level A harassment take has been requested or will be authorized. In summary, the Navy has requested, and NMFS has assumed take of up to 640 harbor porpoises by Level B harassment (3 per year for work on concrete/fender piles and 125 per year from for work on steel piles) for the duration of the 5-year LOA.
California sea lions occur in Puget Sound from approximately August to June. This species occasionally hauls out on the port security barriers at NAVMAG Indian Island. These haulouts are adjacent to, in, or near the Level B harassment zones, so exposure may occur if animals move through Level B harassment zones during impact or vibratory pile driving activities. California sea lions were not observed during previous pile driving monitoring at NAVMAG Indian Island ammunition wharf in 2014 to 2016 (Navy, 2014; Navy 2016), but one was observed during 2020 (Navy, 2021). Although calculated take was zero, reflecting their unlikely occurrence, Level B harassment exposures for the concrete and fender pile driving were estimated as one sea lion per year. Exposure estimates for vibratory driving of steel piles utilized the estimated exposure equation, resulting in estimated take of 17.88 sea lions per year, which was rounded up to 18 sea lion takes per year. Because a Level A harassment injury zone can be effectively monitored and a shutdown zone will be implemented, no take by Level A harassment is anticipated or will be authorized. Based on the aforementioned considerations, NMFS is authorizing take of 95 California sea lions (1 per year by work on concrete/fender piles and 18 per year from work on steel piles), by Level B harassment only, for the duration of the 5-year LOA.
Steller sea lions occur seasonally in Puget Sound primarily from September through May. Take may occur if these animals move through Level B harassment zones during impact or vibratory pile driving. Although their occurrence is unlikely, the Navy assumed that there will be one Level B harassment take from concrete and fender pile driving per year. Level B harassment exposure estimates for steel piles utilized the exposure estimate equation described previously using densities from table 10 resulting in an estimated take of 5.16 animals per year
Northern elephant seals are considered rare visitors to Puget Sound. No regular elephant seal haul outs occur in Puget Sound, although individual elephant seals have been detected hauling out for 2 to 4 weeks to molt, usually during the spring and summer. Haul out locations are unpredictable, but only one record is known for a Navy installation. The Navy reports a density of 0.0 in Puget Sound (Navy, 2020). However, because there are occasional sightings in Puget Sound, the Navy assumed that there will be one exposure from concrete/fender driving and one exposure from steel driving during each year of the LOA. Because elephant seals are rare in the project area and monitoring and shutdown measures will be implemented, no Level A harassment exposure is anticipated. In summary, the Navy has requested, and NMFS is authorizing take of up to 10 northern elephant seals (2 per year) by Level B harassment for the duration of the 5-year LOA.
Pacific harbor seals are expected to occur year-round at NAVMAG Indian Island. This species hauls out regularly at Rat Island adjacent to the northeastern end of NAVMAG Indian Island year-round with a dip in numbers in winter months. Harbor seals are most likely to be exposed to Level A harassment noise when they swim through the area near the Ammunition Wharf during impact pile driving (182 m for steel impact driving and 29 m for concrete impact driving). Pile driving will shut down whenever a seal is detected by monitors nearing or within the injury zone, but harbor seals can dive for up to 15 minutes and may not be detected until they have been within the injury zone for a sufficient period of time to incur PTS. For most pile driving activities, exposure of harbor seals to pile driving noise will be limited to Level B harassment. Level B harassment exposure estimates for vibratory driving were determined using the formula of Level B harassment zone area × density × days of vibratory pile driving. The Navy has calculated take by Level B harassment of 1,710 harbor seals during vibratory installation of fender piles (342 per year), and 1,530 harbor seals during vibratory pile driving of steel piles (306 per year). Therefore, the Navy has requested, and NMFS is authorizing take of up to 3,240 Pacific harbor seals by Level B harassment for the duration of the LOA. In addition, the Navy has requested and NMFS is authorizing up to 135 harbor seal takes (27 per year) by Level A harassment during the 5-year LOA. This is based on the daily average of site-specific observations from several seasons of pile driving monitoring at the Ammunition Wharf and weekly surveys conducted at NAVMAG Indian Island provided above. Observations of seals within 29 m would be calculated to a mean of seals per day within the Level A harassment zone. (Using the density value would underestimate the number of seals in that small zone.) This assumption results in 11 Level A harassment takes per year (0.5 seals/day for 22 days) for impact driving of concrete piles (55 takes for 5 years) and 16 takes per year (8 seals/day for 2 days) for impact driving of steel piles (80 takes over 5 years).
The annual and total number of takes that may be authorized by NMFS are shown in table 11 and table 12.
In order to issue an LOA under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, NMFS considers two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned), and;
(2) The practicability of the measures for applicant implementation, which may consider such things as cost and impact on operations.
In order to limit impacts to marine mammals, vibratory installation will be used by the Navy to the extent practicable to drive steel piles to minimize high sound pressure levels associated with impact pile driving. Jetting will also be used to the extent possible to install concrete piles in order to minimize higher sound pressure levels associated with impact pile driving. Note that a draft monitoring plan will be submitted in the spring at least 90 days prior to the start of the in-water work period (October) during the first year of the project (2024). The final monitoring plan will be prepared and submitted to NMFS within 30 days following receipt of comments on the draft plan from NMFS.
The Navy will ensure that construction supervisors and crews, the monitoring team, and relevant Navy staff are trained and prior to the start of construction activity subject to this rule, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project will be trained prior to commencing work.
Before the commencement of in-water construction activities, the Navy will establish shutdown zones for all impact and pile driving activities. The purpose of a shutdown zone is generally to define an area within which shutdown of the activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area). Shutdown zones will vary based on the activity type and marine mammal hearing group but will include all areas where the underwater sound pressure levels are anticipated to equal or exceed the Level A harassment (injury) criteria for marine mammals. The shutdown zone will always be a minimum of 10 m to prevent injury from physical interaction of marine mammals with construction equipment. The Level A harassment zones are based on the maximum calculated radius for pinnipeds and cetaceans, specifically harbor porpoises, during installation of 36-inch steel piles and 24-inch concrete piles with impact techniques, and the Level B harassment zone for impact and vibratory pile installation.
Injury to harbor seals from noise due to impact and vibratory pile driving and physical interaction with construction equipment will be minimized to the extent practicable by implementing a shutdown if the animals are observed to be swimming towards the injury zone. For steel pile impact driving, to the extent possible, PSOs will initiate shutdown when harbor seals enter the injury zone; however, because of the size of the zone and the inherent difficulty in monitoring harbor seals, a highly mobile species, it may not be practical, which is why Level A harassment take has been analyzed.
The taking by serious injury or death of any of the species listed in table 12 or any taking of any other species of marine mammal is prohibited. The Navy will establish shutdown zones for all marine mammals for which incidental take has been authorized but the authorized number of takes has been met. These zones are equivalent to the Level B harassment zones for each activity. If such animals are sighted within the vicinity of the project areas and are approaching the Level B harassment zone, the Navy will shut down the pile driving equipment to avoid possible take of these species.
Pile driving activities will cease if any cetaceans authorized for take are seen approaching or entering any harassment zone. Work will be halted and delayed until either the animal has voluntarily left and been visually confirmed beyond the injury zone or visual portion of the Level B harassment zone or 15 minutes have passed without re-detection of the animal. Additionally, if a shutdown zone is obscured by fog or poor lighting conditions, pile driving will not be initiated until the entire shutdown zone is visible.
If a pinniped approaches or enters a shutdown zone during pile impact or vibratory driving, work will be halted and delayed until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal. If a pinniped is observed in the Level B harassment zone, but not approaching or entering the shutdown zone, the work will be allowed to proceed without cessation of pile driving. Marine mammal behavior will be monitored and documented.
At minimum, the shutdown zone for all hearing groups and all activities will be 10 m. For in-water heavy machinery work other than pile driving (
Prior to the start of daily in-water construction activity, or whenever a break in pile driving of 30 minutes or longer occurs, PSOs will observe the shutdown and Level B harassment zones for a period of 30 minutes. The shutdown zone will be considered cleared when a marine mammal has not been observed within the zone for that 30-minute period. If a marine mammal is observed within the shutdown zones listed in table 13, pile driving activity would be delayed or halted. If pile driving is delayed or halted due to the presence of a marine mammal, the activity will not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zones or 15 minutes have passed without re-detection of the animal. If work ceases for more than 30 minutes, the pre-activity monitoring of the shutdown zones will commence. A determination that the shutdown zone is clear must be made during a period of good visibility (
Monitoring will take place from 30 minutes prior to initiation through 30 minutes post-completion of pile driving. Prior to the start of pile driving, the shutdown zone will be monitored for 30 minutes to ensure that the shutdown zone is clear of marine mammals. Pile driving will only commence once PSOs have declared the shutdown zone clear of marine mammals.
Soft-start procedures are used to provide additional protection to marine mammals by providing warning and/or giving marine mammals a chance to leave the area prior to the hammer operating at full capacity. For impact pile driving, contractors will be required to provide an initial set of three strikes from the hammer at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets. Soft start will be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer.
Should use of 36-inch steel piles be necessary, a bubble curtain will be used for all impact driving of steel piles to attenuate noise. Because of the relatively low underwater noise levels associated with impact driving of concrete piles, bubble curtains are not required for impact installation of concrete piles.
A bubble curtain will be employed during impact installation or proofing of steel pile where water depths are greater than 0.67 m. A noise attenuation device will not be required during vibratory pile driving. If a bubble curtain or similar measure is used, it will distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column. A bubble curtain is usually a ring or series of stacked rings that are placed around a pile along the pile's entire length under water. The rings are made of tubing which has small puncture holes through which compressed air is pumped. As the compressed air bubbles flow from the tubing, they create an air barrier that impedes the sound produced during pile driving. Any other attenuation measure will be required to provide 100 percent coverage in the water column for the full depth of the pile. The lowest bubble ring would be in contact with the mudline for the full circumference of the ring. The weights attached to the bottom ring will ensure 100 percent mudline contact. No parts of the ring or other objects will prevent full mudline contact.
NMFS has determined that the required mitigation measures provide the means of effecting the least practicable adverse impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an LOA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present while conducting the activities. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
The Navy will submit a Marine Mammal Monitoring Plan to NMFS for approval at least 90 days in advance of the start of the first year of construction.
• Monitoring must be conducted during pile driving activities by qualified, NMFS-approved PSOs, in accordance with the following conditions: PSOs must be independent of the activity contractor (for example, employed by a subcontractor) and have no other assigned tasks during monitoring periods.
• At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
• Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
• Where a team of three or more PSOs is required, a lead PSO or monitoring coordinator must be designated. The lead PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
• PSOs must be approved by NMFS prior to beginning any activity subject to this rule.
All PSOs shall be trained in marine mammal identification and behaviors, and satisfy the following criteria:
• Visual acuity in both eyes (correction is permissible) sufficient to discern moving targets at the water's surface with ability to estimate target size and distance. Use of binoculars or spotting scope may be necessary to correctly identify the target.
• Advanced education in biological science, wildlife management, mammalogy or related field (Bachelor's degree or higher is preferred).
• Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience).
• Experience or training in the field identification of marine mammals (cetaceans and pinnipeds).
• Sufficient training, orientation or experience with vessel operation and pile driving operations to provide for personal safety during observations.
• Writing skills sufficient to prepare a report of observations. Reports should include such information as the number, type, and location of marine mammals observed; the behavior of marine mammals in the area of potential sound effects during construction; dates and times when observations and in-water construction activities were conducted; dates and times when in-water construction activities were suspended because of marine mammals,
• Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area and necessary actions, as needed.
During pile driving activities, the Navy will assign PSOs to monitor the identified harassment zones. The number and placement of PSOs will vary depending upon the pile size, location, and number of piles being installed or removed. In order to effectively monitor the shutdown and Level B harassment zones, PSOs will be positioned at the best practicable vantage points, taking into consideration security, safety, and space limitations. The PSOs will be stationed on the pier, vessel, on shore, or on the pile driving barge in a location that will provide adequate visual coverage for the identified harassment zones. During pile driving, at least one PSO will be stationed on a vessel if practicable.
Monitoring will be conducted 30 minutes before, during, and 30 minutes after all in water construction activities. In addition, PSOs will record all incidents of marine mammal occurrence, regardless of distance from activity, and will document any behavioral reactions in concert with distance from piles being driven or removed.
The Navy must submit a draft monitoring report to NMFS within 90 calendar days of the completion of each construction year. A draft comprehensive 5-year summary report must also be submitted to NMFS within 90 days of the end of the project. The reports must detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports and the final comprehensive report must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. The marine mammal report will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report will include:
• Dates and times (begin and end) of all marine mammal monitoring;
• Construction activities occurring during each daily observation period, including: (a) How many and what type of piles were driven or removed and the method (
• PSO locations during marine mammal monitoring; and
• Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance.
In addition, for each observation of a marine mammal, the marine mammal report will include the following information:
• Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting;
• Time of sighting;
• Identification of the animal(s) (
• Distance and location of each observed marine mammal relative to the pile being driven for each sighting;
• Estimated number of animals (min/max/best estimate);
• Estimated number of animals by cohort (adults, juveniles, neonates, group composition,
• Description of any marine mammal behavioral observations (
• Number of marine mammals detected within the harassment zones, by species; and
• Detailed information about implementation of any mitigation (
If no comments are received from NMFS within 30 days, the draft reports will constitute the final reports. If comments are received, a final report addressing NMFS' comments will be required to be submitted within 30 days after receipt of comments. All PSO datasheets and/or raw sighting data will be submitted with the draft marine mammal report.
In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy must report the incident to NMFS Office of Protected Resources (OPR) (
1. Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the animal(s) involved;
3. Condition of the animal(s) (including carcass condition if the animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. If available, photographs or video footage of the animal(s); and General circumstances under which the animal was discovered.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the discussion of our analysis applies to the species listed in table 12, given that many of the anticipated effects of this project on different marine mammal stocks are expected to be relatively similar in nature. Where there are meaningful differences among species, stocks, or groups of species, anticipated responses of individual animals to activities, and/or impacts of expected take on the population (due to differences in population status, or impacts on habitat), the outliers are described independently in the analysis below.
Pile driving activities associated with the project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level A and Level B harassment from underwater sounds generated by pile driving. Potential takes could occur if marine mammals are present in zones ensonified above the thresholds for Level A and Level B harassment, identified above, while activities are underway.
No serious injury or mortality would be expected even in the absence of the mitigation measures. During all impact driving, implementation of soft-start procedures and monitoring of established shutdown zones will be required, significantly reducing the possibility of injury. Given sufficient notice through use of soft-start (for impact driving), marine mammals are expected to move away from an irritating sound source before it becomes potentially injurious. In addition, PSOs will be stationed within the project area whenever pile driving activities are underway. Depending on the activity, the Navy will employ land-based PSOs to ensure all monitoring and shutdown zones are properly observed. For monitoring of larger harassment zones, the Navy will employ vessel-based PSOs if practicable. Some harbor seals could be exposed to Level A harassment levels of noise when they swim through the area near the Ammunition Wharf during impact pile driving. Pile driving will shut down whenever a seal is detected by PSOs nearing or within the injury zone, but harbor seals can dive for up to 15 minutes and may not be detected. Any animals that experience PTS would likely only receive slight PTS,
Exposures to elevated sound levels produced during pile driving activities may cause behavioral disturbance of some individuals, but the behavioral disturbances are expected to be mild and temporary. However, as described previously, the mitigation and monitoring measures are expected to further reduce the likelihood of injury as well as reduce behavioral disturbances.
Effects on individuals that are taken by Level B harassment, as enumerated in the Estimated Take section, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (
The project is also not expected to have significant adverse effects on any marine mammal habitat. The Navy's planned pile driving activities and associated impacts will occur within a limited portion of the confluence of the Puget Sound-Port Townsend Bay area. The project activities will not modify existing marine mammal habitat since the project will occur within the same footprint as existing marine infrastructure. Impacts to the immediate substrate during installation and removal of piles are anticipated, but these would be limited to minor, temporary suspension of sediments, which could impact water quality and visibility for a short amount of time, but which would not be expected to have any effects on individual marine mammals. The nearshore and intertidal habitat where the project will occur is an area of consistent vessel traffic from Navy and non-Navy vessels, and some local individuals would likely be somewhat habituated to the level of activity in the area, further reducing the likelihood of more severe impacts. The closest pinniped haulout, Rat Island, is used by harbor seals and is 2.4 km from the Ammunition Wharf. However, for the reasons described immediately above (including the nature of expected responses and the duration of the project), impacts to reproduction or survival of individuals are not anticipated, and are not expected to have effects on the species or stock. There are no other biologically important areas for marine mammals near the project area.
Impacts to marine mammal prey species are expected to be minor and temporary. Overall, the area impacted by the project is very small compared to the available habitat in Port Townsend Bay and larger Puget Sound. The most likely impact to prey will be temporary behavioral avoidance of the immediate area. During pile driving activities, it is expected that some fish and marine mammals would temporarily leave the area of disturbance, thus impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality is anticipated or authorized;
• No Level A harassment is anticipated or authorized with the exception of limited take of harbor seals;
• Anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior;
• The required mitigation measures (
• Minimal impacts to marine mammal habitat/prey are expected; and
• There are no known biologically important areas in the vicinity of the project, with the exception of one harbor seal haulout (Rat Island). However, as described above, exposure to the work conducted in the vicinity of the haulout is not expected to impact the reproduction or survival of any individual seals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the planned activity will have a negligible impact on all affected marine mammal species or stocks.
As noted previously, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one-third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
Take of eight marine mammal stocks authorized for take will comprise no more than 6.11 percent of a single stock abundance (Pacific harbor seal) as shown in table 11. The number of animals authorized to be taken from these stocks would be considered small relative to the relevant stock's abundances even if each estimated take occurred to a new individual, which is an unlikely scenario. Based on the analysis contained herein of the planned activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
The regulations governing the take of marine mammals incidental to Navy construction activities will contain an adaptive management component. The reporting requirements associated with this rule are designed to provide NMFS with monitoring data from completed projects to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the Navy regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data to be
Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531
No incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that consultation under section 7 of the ESA is not required for this action.
Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this action will not have a significant economic impact on a substantial number of small entities. The Navy is the sole entity that will be subject to the requirements in these regulations, and the Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. No comments were received regarding this certification or on the economic impacts of the rule more generally. As a result, a regulatory flexibility analysis is not required and none has been prepared.
This rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a Federal agency.
Administrative practice and procedure, Exports, Fish, Imports, Marine mammals, Penalties, Reporting and recordkeeping requirements, Transportation, Wildlife.
For reasons set forth in the preamble, NMFS revises subpart I of 50 CFR part 217 as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occur in the areas outlined in paragraph (b) of this section and that occur incidental to construction activities, including maintenance and replacement of piles, at the Naval Magazine Indian Island Ammunition Wharf, Puget Sound, Washington.
(b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at the Naval Magazine Indian Island Ammunition Wharf, Puget Sound, Washington.
Regulations in this subpart are effective from October 1, 2024, until September 30, 2029.
Under an LOA issued pursuant to § 216.106 of this chapter and § 217.86, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.80 (b) by harassment associated with construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
(a) Except for the takings contemplated in § 217.82 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.86, it is unlawful for any person to do any of the following in connection with the activities described in § 217.80:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.86;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner other than as specified;
(4) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
(a) When conducting the activities identified in § 217.80(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and §§ 217.86 or 217.87 must be implemented. These mitigation measures include but are not limited to:
(1) A copy of any issued LOA must be in the possession of the Navy, its designees, and work crew personnel operating under the authority of the issued LOA;
(2) The Navy must follow mitigation procedures as described in § 217.84. Protected Species Observers (PSO) must monitor designated harassment zones
(3) The Navy must ensure that construction supervisors and crews, the PSO team, and relevant Navy staff are trained prior to the start of construction activity subject to this rule, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project must be trained prior to commencing work;
(4) The Navy must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary, to avoid direct physical interaction;
(5) For all pile driving activity, the Navy must implement shutdown zones with radial distances as identified in a LOA issued under § 216.106 of this chapter and §§ 217.86 or 217.87. If a marine mammal comes within or approaches the shutdown zone, pile driving activity must cease;
(6) The Navy must shut down in-water activities when cetaceans are observed approaching or within any harassment zone;
(7) The Navy must use soft start techniques when impact pile driving. Soft start requires an initial set of three strikes from the hammer at reduced energy, followed by a 30-second waiting period. Then two subsequent reduced-energy strike sets would occur. A soft start must be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer;
(8) The Navy must employ bubble curtain systems during impact driving of 36-in steel piles except under conditions where the water depth is less than 0.67 meters (2 feet) in depth. Bubble curtains must meet the following requirements;
(i) The bubble curtain must distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column;
(ii) The lowest bubble ring must be in contact with the mudline and/or rock bottom for the full circumference of the ring, and the weights attached to the bottom ring shall ensure 100 percent mudline and/or rock bottom contact. No parts of the ring or other objects shall prevent full mudline and/or rock bottom contact; and
(iii) The bubble curtain must be operated such that there is equal balancing of air flow to all bubblers;
(9) The Navy must deploy PSOs as indicated in its Marine Mammal Monitoring Plan that has been approved by NMFS;
(10) For all pile driving activities, land-based PSOs must be stationed at the best vantage points practicable to monitor for marine mammals and implement shutdown/delay procedures. At least one vessel-based PSO must be employed when practicable. Additional PSOs must be added if warranted by site conditions and/or the level of marine mammal activity in the area;
(11) Monitoring must take place from 30 minutes prior to initiation of pile driving activity (
(12) In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals must be allowed to remain in the shutdown zone (
(13) If work ceases for more than 30 minutes, the pre-activity monitoring of the shutdown zones must commence. A determination that the shutdown zone is clear must be made during a period of good visibility;
(14) If a marine mammal approaches or enters the shutdown zone, all pile driving activities at that location must be halted. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal;
(15) Pile driving activity must be halted upon observation of a species entering or within the harassment zone for either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met; and
(16) Trained PSOs must be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator.
(b) [Reserved]
(a) The Navy must submit a Marine Mammal Monitoring Plan to NMFS for approval at least 90 days before the start of construction and abide by the Plan if approved.
(b) The Navy must deploy PSOs as indicated in its approved Marine Mammal Monitoring Plan.
(c) Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following conditions:
(1) PSOs must be independent of the activity contractor (for example, employed by a subcontractor) and have no other assigned tasks during monitoring periods;
(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization;
(3) Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization;
(4) Where a team of three or more PSOs are required, a lead PSO or monitoring coordinator must be designated. The lead PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization; and
(5) PSOs must be approved by NMFS prior to beginning any activity subject to these regulations.
(d) PSOs must be trained in marine mammal identification and behaviors.
(e) The Navy must monitor the Level B harassment zones (areas where SPLs are equal to or exceed the 160 dB root-mean-squared (rms) threshold for impact driving and the 120 dB rms threshold during vibratory pile driving) to the maximum extent practicable and the shutdown zones.
(f) The Navy must coordinate with the Center for Whale Research, Orca network, and NMFS to avoid noise exposure of southern resident killer whales. The Navy must shut down in-water activities when southern resident killer whales are observed or reported within or approaching any harassment zone.
(g) The Navy must submit a draft monitoring report to NMFS within 90 calendar days of the completion of each construction year. A draft comprehensive 5-year summary report must also be submitted to NMFS within 90 days of the end of the project. The reports must detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports and the final comprehensive report must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. The reports must contain the informational elements described at minimum below including:
(1) Dates and times (begin and end) of all marine mammal monitoring;
(2) Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed, by what method (
(3) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), Beaufort sea state, and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance (if less than the harassment zone distance);
(4) Upon observation of a marine mammal, the following information should be collected:
(i) PSO who sighted the animal, observer location, and activity at time of sighting:
(ii) Time of sighting;
(iii) Identification of the animal (
(iv) Distances and bearings of each marine mammal observed in relation to the pile being driven for each sighting (if pile driving was occurring at time of sighting);
(v) Estimated number of animals (min/max/best);
(vi) Estimated number of animals by cohort (adults, juveniles, neonates, group composition,
(vii) Animal's closest point of approach and estimated time spent within the harassment zone;
(viii) Description of any marine mammal behavioral observations (
(ix) Detailed information about any implementation of any mitigation (
(x) All PSO datasheets and/or raw sightings data.
(h) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy must report the incident to NMFS Office of Protected Resources (OPR), and to the West Coast Regional Stranding Coordinator, as soon as feasible. If the death or injury was caused by the specified activity, the Navy must immediately cease the specified activities until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this rule and the LOA issued under § 216.106 of this chapter and § 217.86. The Navy must not resume their activities until notified by NMFS. The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s); and
(6) General circumstances under which the animal was discovered.
(a) To incidentally take marine mammals pursuant to these regulations, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and obtain a modification of the LOA as described in § 217.87.
(e) The LOA must set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA must be published in the
(a) An LOA issued under §§ 216.106 of this chapter and 217.86 for the activity identified in § 217.80(a) may be renewed or modified upon request by the applicant, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the
(c) An LOA issued under §§ 216.106 of this chapter and 217.86 for the activity identified in § 217.80 (a) may be modified by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS must publish a notice of proposed LOA in the
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to §§ 216.106 of this chapter and 217.86, a LOA may be modified without prior notice or opportunity for public comment. Notification will be published in the
Bureau of Industry and Security, Department of Commerce.
Proposed rule; request for comments.
The Executive order of January 19, 2021, “Taking Additional Steps To Address the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities,” directs the Secretary of Commerce (Secretary) to propose regulations requiring U.S. Infrastructure as a Service (IaaS) providers of IaaS products to verify the identity of their foreign customers, along with procedures for the Secretary to grant exemptions; and authorize special measures to deter foreign malicious cyber actors' use of U.S. IaaS products. The Executive order of October 30, 2023, “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” further directs the Secretary to propose regulations that require providers of certain IaaS products to submit a report to the Secretary when a foreign person transacts with that provider or reseller to train a large Artificial Intelligence (AI) model with potential capabilities that could be used in malicious cyber-enabled activity. The Department of Commerce (Department) issues this notice of proposed rulemaking (NPRM) to solicit comment on proposed regulations to implement those Executive orders.
Comments must be received April 29, 2024.
All comments must be submitted by one of the following methods:
•
•
•
Kellen Moriarty, U.S. Department of Commerce, telephone: (202) 482-1329, email:
IaaS products offer customers the ability to run software and store data on servers offered for rent or lease without having to assume the direct maintenance and operating costs of those servers. Foreign malicious cyber actors have utilized U.S. IaaS products to commit intellectual property and sensitive data theft, to engage in covert espionage activities, and to threaten national security by targeting U.S. critical infrastructure. After carrying out such illicit activity, these actors can quickly move to replacement infrastructure offered by U.S. IaaS providers of U.S. IaaS products (“U.S. IaaS providers”). The temporary registration and ease of replacement for such services makes it more difficult for the government to track malicious actors. Additionally, the ability of malicious actors to use foreign-person resellers of U.S. IaaS products (“foreign resellers”), who might not track identity, hinders law enforcement's ability to obtain identifying information about malicious actors through service of compulsory legal process. This shift in adversary tradecraft also challenges the U.S. Government's ability to identify victims of malicious cyber activity and enable specific network defense and remediation efforts. Furthermore, the emergence of large-scale computing infrastructure—to which U.S. IaaS providers and foreign resellers provide access as a service, and which foreign malicious actors could use to train large AI models that can assist or automate their malicious cyber activity—has raised considerable concern about the identities of entities that transact with providers to engage in certain AI training runs.
To address these threats, the President issued E.O. 13984, “Taking Additional Steps To Address the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities,” which provides the Department with authority to require U.S. IaaS providers to verify the identity of foreign users of U.S. IaaS products, to issue standards and procedures that the Department may use to make a finding to exempt IaaS providers from such a requirement, to impose recordkeeping obligations with respect to foreign users of U.S. IaaS products, and to limit certain foreign actors' access to U.S. IaaS products in appropriate circumstances. The President subsequently issued E.O. 14110, “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” which calls for the Department to require U.S. IaaS providers to ensure that their foreign resellers verify the identity of foreign users. E.O. 14110 also provides the Department with authority to require U.S. IaaS providers submit a report to the Department whenever a foreign person transacts with them to train a large AI model with potential capabilities that could be used in malicious cyber-enabled activity.
E.O. 13984 and E.O. 14110 draw upon the President's authority from the Constitution and laws of the United States, including the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701
Section 2 of E.O. 13984 requires the proposed regulations to allow the Secretary to use, as necessary, one of two special measures included in E.O. 13984 to require U.S. IaaS providers to prohibit or limit access to Accounts that foreign malicious cyber actors use to conduct malicious cyber-enabled activity. E.O. 13984 authorizes these measures if the Secretary, in consultation with heads of appropriate Federal agencies, finds that reasonable grounds exist to conclude that either: (i) a foreign jurisdiction has a significant number of foreign persons offering U.S. IaaS products that are, in turn, used for malicious cyber-enabled activities, or a significant number of foreign persons directly obtaining U.S. IaaS products and using them in malicious cyber-enabled activities; or (ii) a foreign person has established a pattern of conduct of offering U.S. IaaS products that are used for malicious cyber-enabled activities or directly obtaining U.S. IaaS products for use in malicious cyber-enabled activities. As further explained below, the Department would conduct an investigation before making any such finding under section 2 of E.O. 13894.
One special measure the Secretary could take would be to prohibit or impose conditions on opening or maintaining an Account with any IaaS provider by: (a) a foreign person located in a foreign jurisdiction that has a significant number of foreign persons offering U.S. IaaS products that are used for malicious cyber-enabled activities; or (b) on behalf of such a foreign person. The second special measure would allow the Secretary to prohibit or impose conditions on opening or maintaining an Account in the United States by any IaaS provider for, or on behalf of, a foreign person found to be offering U.S. IaaS products that are used for malicious cyber-enabled activities or on accounts opened directly by foreign persons who are known to obtain U.S. IaaS products for malicious cyber-enabled activities.
Section 4.2(c) of E.O. 14110 requires the Secretary to propose regulations requiring U.S. IaaS providers to submit to the Department a report when a foreign person transacts with the IaaS provider to train a large AI model with potential capabilities that could be used in malicious cyber-enabled activity. The report, at a minimum, must include the identity of the foreign person and the existence of a training run that meets the criteria set forth in this section, as well as any other information specified in regulation. This section of E.O. 14110 also instructs the Secretary to determine the set of technical conditions that a large AI model must possess in order to have the potential capabilities that could be used in malicious cyber-enabled activity and to update that determination as necessary and appropriate.
Section 4.2(c) of this E.O. also requires that U.S. IaaS providers prohibit any foreign reseller of their U.S. IaaS product from providing those products unless such foreign reseller submits to the U.S. IaaS provider a report, which the U.S. IaaS provider must provide to the Department, detailing each instance in which a foreign person transacts with the foreign reseller to use the U.S. IaaS product to train a large AI model with potential capabilities that could be used in malicious cyber-enabled activity. In accordance with this requirement, section 4.2(d) requires the proposed regulations to require U.S. IaaS providers to ensure that foreign resellers of U.S. IaaS products verify the identity of any foreign person that obtains an IaaS account from the foreign resellers. The Department is directed to set forth the minimum standards that a U.S. IaaS provider must require of their foreign resellers to verify the identity of a foreign person who opens an account or maintains an existing account with a foreign reseller.
On September 24, 2021, the Department published in the
This section summarizes the comments received in response to the ANPRM and explains the Department's proposed regulations to implement sections 1, 2, and 5 of E.O. 13984. The proposed rule text incorporates many of the suggestions the Department received in response to the ANPRM, as set out in more detail below.
The Department sought comments on the terms “United States person” and “United States Infrastructure as a Service Provider.” The commenters who responded to this question argued that the term “United States person” should not be interpreted to include foreign subsidiaries of a U.S. IaaS provider, as this extension would exceed the scope of E.O. 13984. Commenters differed about how broadly to interpret the term “United States Infrastructure as a Service Provider.” Many requested the Department to interpret this term as broadly as possible to capture as much potential foreign malicious cyber activity as possible. Others believed the Department should interpret the definition narrowly to avoid implicating cloud service providers who offer other cloud-based services, such as Platform as a Service (PaaS) and Software as a Service (SaaS) offerings, but do not offer IaaS products. This proposed rule reflects the Department's consideration of all relevant comments.
In the ANPRM, the Department sought information about how to implement requirements for companies to verify a foreign person's identity upon the opening of an Account and while maintaining an existing Account. The Department sought comments on verification procedures and recordkeeping requirements the Department should consider including in regulations.
Many commenters expressed support for implementing data retention and recordkeeping requirements, as directed by E.O. 13984, across a broad spectrum of U.S. IaaS providers' products or services to capture a large portion of malicious cyber-enabled activity on these platforms. While commenters generally supported requiring U.S. IaaS providers to verify the identity of all prospective customers, some suggested that any regulation the Department promulgates in response to E.O. 13984 will be ineffective, as malicious cyber actors are savvy enough to avoid identity verification.
Other commenters requested that the Department's proposed regulations allow U.S. IaaS providers to adopt risk-based approaches to verify the identity of their customers. These approaches, they argued, would allow IaaS providers flexibility to adjust their CIPs to meet new threats and vulnerabilities as they arise. Most commenters agreed that the Department should consider the costs and benefits of these requirements for U.S. IaaS providers and expressed concern that the costs of compliance would be substantial. As discussed further below, the Department has proposed standards and procedures that take into consideration the size, complexity, and risk profile of the IaaS provider and its product offerings.
The Department requested comments on current practices, if any, that U.S. IaaS providers use to verify the identity of their customers and the burden that any new regulations would impose on these IaaS providers. Commenters reported that there is no uniform set of data that U.S. IaaS providers collect before opening an Account for a customer, but email addresses and payment methods are normally required. Most commenters indicated that any requirements in this proposed regulation would impose burdens on U.S. IaaS providers, and that the Department should weigh this burden against the anticipated benefit any regulations mandating identity verification would have on national security. The Department acknowledges that this rulemaking will impose compliance costs for at least some U.S. IaaS providers and has addressed these costs in the regulatory impact analysis included in the preamble of this proposed rule.
The Department asked about the impact any proposed regulations would have on data protection and security, especially considering the European Union General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). Many commenters encouraged the Department to propose regulations that would enable U.S. law enforcement officials to gain access to data stored by domain name registries and registrars that has proven more difficult since the enactment of the GDPR. Others focused on ensuring that the processing of customers' data to carry out the provisions of any proposed regulation would be consistent with the GDPR or CCPA. Still others requested that any proposed regulation not frustrate ongoing negotiations to open the flow of data between foreign countries and the United States. The Department acknowledges these comments and has sought to ensure these proposed regulations are consistent with national and international obligations, either because the specific information requested is not protected, or because the need for data collection falls into relevant exemptions.
The Department sought comments on how to implement the authority, granted by section 1(c) of E.O. 13984, to provide exemptions from the requirements of any regulations issued pursuant to E.O. 13894. Many commenters expressed hope that the Department could promulgate best practices for IaaS providers to adopt or strive to meet in order to avoid compliance costs associated with any proposed regulations. Others asked the Department to tailor these regulations to apply only to those products and services most used by foreign malicious cyber actors. The Department is proposing procedures for IaaS providers to obtain exemptions from the CIP requirements. Under these procedures, a U.S. IaaS provider seeking to obtain an exemption for itself, a specific type of account or lessee, or its foreign reseller, would provide a written submission to the Secretary outlining its program to comply with security best practices to deter the abuse of U.S. IaaS products. A finding by the Secretary that the program incorporates such best practices would exempt an IaaS provider from the CIP requirements in section 1(a) of E.O. 13984.
Some commenters urged the Department not to include exemptions, believing this practice to be contrary to the intent of E.O. 13984 to address the use of U.S. IaaS products for malicious cyber-enabled activities. In these proposed regulations, the Department has endeavored to provide a pathway to enable U.S. IaaS providers to apply for an exemption where such exemption is warranted while still accomplishing the policy goals of E.O. 13984. The Department welcomes comments and feedback on its proposed approach, as well as on potential standards and best practices that could deter the abuse of U.S. IaaS products by malicious actors.
In the ANPRM, the Department sought comments on procedures the Secretary should use to decide when and how to impose a special measure. The Department asked what sources of information the Secretary should consider, how the Secretary should publish any findings, how long the special measure's effects should last, and how to determine which special measure to invoke.
Commenters encouraged the Department to consider how to leverage existing authorities and procedures, such as the Department's existing authority to prohibit certain Information and Communications Technology and Services (ICTS) transactions or the Department of the Treasury's Office of Foreign Assets Control's (OFAC) sanctions procedures, to minimize the burden of these special measures. Other commenters indicated that the threat of these special measures will result in lost U.S. business, as foreign persons may move to IaaS products and services furnished from companies headquartered in foreign countries. Still others expressed doubt that these special measures would accomplish their intended purpose.
In crafting these proposed regulations regarding special measures, the Department looked to a variety of sources, including OFAC's sanction procedures, and has sought to minimize the costs to U.S. businesses while still meeting the requirements of E.O. 13984.
Following consideration of the comments received in response to the ANPRM, the Department is proposing regulations to implement sections 1, 2, and 5 of E.O. 13984 and the applicable provisions of E.O. 14110. The provisions implementing E.O. 13984 would apply to U.S. IaaS providers that offer U.S. IaaS products, as defined in E.O. 13984 and this proposed rule. “U.S. IaaS providers” includes any U.S. person that offers IaaS products, to include both direct providers of U.S. IaaS products and any of their U.S. resellers.
To implement section 1 of E.O. 13984, the Department proposes to require providers to verify the identity of foreign customers. To implement section 2 of E.O. 13984, the Department proposes procedures for the Secretary's decision-making process regarding whether and how to issue determinations about special measures. Regarding the definitions in section 5 of E.O. 13984, the Department proposes interpretations of terms defined in the E.O. and proposes definitions for several additional key terms.
To implement section 4.2(c) of E.O. 14110, the Department proposes regulations related to foreign resellers of U.S. IaaS products that would apply to U.S. IaaS providers as defined in E.O. 13984 and this proposed rule. The Department uses “foreign reseller” to mean any foreign person who has established an account with a U.S. IaaS provider to provide IaaS products
To implement section 4.2(c) of this E.O., the Department proposes a process for U.S IaaS providers to report to the Department when they have knowledge they will engage or have engaged in a transaction with a foreign person that could allow that foreign person to train a large AI model with potential capabilities that could be used in malicious cyber-enabled activity. To implement section 4.2(d) of this E.O., the Department proposes regulations that would require U.S. IaaS providers to require foreign resellers of their U.S. IaaS products to verify the identity of foreign persons who open or maintain an account with a foreign reseller.
The Department proposes definitions for terms used within E.O. 14110, including a definition for a “large AI model with potential capabilities that could be used in malicious cyber-enabled activity.” Based on this definition, the Secretary will determine, as required by E.O. 14110, the set of technical conditions that a large AI model must possess in order to have the potential capabilities that could be used in malicious cyber-enabled activity. That determination will be a binding interpretation of what constitutes a “large AI model with potential capabilities that could be used in malicious cyber-enabled activity.” As this area of technology is fast developing, and as directed by E.O. 14110, the Secretary will update, as “necessary and appropriate,” the initial determination of which set of technical conditions meet the definition. The Department will publish these binding updates to the technical condition determinations in the
This proposed rule adopts several definitions found in section 5 of E.O. 13984, including “entity,” “foreign jurisdiction,” “foreign person,” “Infrastructure as a Service Account,” “Infrastructure as a Service product,” “Malicious cyber-enabled activities,” “person,” “Reseller Account,” “United States person,” and “U.S. Infrastructure as a Service product.” In addition, this proposed rule clarifies the definition of “U.S. Infrastructure as a Service provider” found in section 5 of E.O. 13984. The proposed rule also adopts several definitions found in section 3 of E.O. 14110, including “artificial intelligence” or “AI,” “AI model,” “AI system,” “dual-use foundation model,” “foreign reseller,” “generative AI,” “integer operation,” “machine learning,” and “model weight.” Finally, the Department proposes several definitions of key terms in this rule, including “customer” and “beneficial owner,” as well as definitions for terms such as “availability,” “confidentiality,” “Customer Identification Program,” “Department,” “disassociability,” “foreign beneficial owner,” “foreign customer,” “foreign reseller, “individual,” “integrity,” “knowledge,” “large AI model with potential capabilities that could be used in malicious cyber-enabled activity,” “manageability,” “predictability,” “privacy-preserving data sharing and analytics,” “Red Flag,” “reseller,” “risk-based,” “Secretary,” “threat landscape,” “training,” “training run,” and “United States reseller.” Some of the proposed definitions are discussed below, although the Department welcomes comments on all definitions in this proposed rule.
The Department proposes to define “availability” as ensuring timely and reliable access to and use of information and information systems by an authorized person or system, including resources provided as part of a product or service.
E.O. 13984 requires verification of the identity of foreign persons that obtain accounts, and it defines “person” as “an individual or entity.” Therefore, the Department proposes to require U.S. IaaS providers to collect the same identifying information and verify the identity of beneficial owners of Accounts owned or maintained by entities. Under the proposed rule, a beneficial owner is defined as an individual who either: (1) exercises substantial control over a Customer, or (2) owns or controls at least 25 percent of the ownership interests of a Customer. The Department seeks comments on these definitions, including the meaning of “substantial control.”
The Department proposes to define “confidentiality” as preserving authorized restrictions on information access and disclosure, including means for protecting personal privacy and proprietary information.
The Department proposes to define “Customer Identification Program” as a program created by a U.S. IaaS provider or foreign reseller that dictates how the IaaS provider will collect identifying information about its customers, how the IaaS provider will verify the identity of its foreign customers, store and maintain identifying information, and notify its customers about the disclosure of identifying information.
The Department proposes to define “Department” as the United States Department of Commerce.
The Department proposes to define “disassociability” as enabling the processing of data or events without association to individuals or devices beyond the operational requirements of the system.
The Department proposes to define “foreign beneficial owner” as a beneficial owner that is not a United States person.
The Department proposes to define “foreign customer” as a customer that is not a United States person.
The Department proposes to adopt the definition from E.O. 14110 and define “foreign reseller” to mean a foreign person who has established an IaaS Account to provide IaaS subsequently, in whole or in part, to a third party. This is consistent with the definition for foreign reseller included in E.O. 14110.
The Department proposes to define “individual” as any natural person.
This proposed definition adopts the E.O. 13984 definition for “Infrastructure as a Service product”, which is any product or service offered to a consumer, including complimentary or “trial” offerings, that provides processing, storage, networks, or other fundamental computing resources, and with which the consumer is able to deploy and run software that is not predefined, including operating systems and applications. The consumer typically does not manage or control most of the underlying hardware but has control over the operating systems, storage, and any deployed applications. The term is inclusive of “managed” products or services, in which the provider is responsible for some aspects of system configuration or maintenance, and “unmanaged” products or services, in which the provider is only responsible for ensuring that the
The Department believes that this expansive definition will allow for regulations to apply to a broad range of IaaS product offerings that can be used by foreign malicious cyber actors to carry out attacks on the United States or United States persons. Note that this definition includes all service offerings for which a consumer does not manage or control the underlying hardware, but rather contracts with a third party to provide access to this hardware. This definition would capture services such as content delivery networks, proxy services, and domain name resolution services. It does not, however, capture domain name registration services for which a consumer registers a specific domain name with a third party, as that third party does not provide any processing, storage, network, or other fundamental computing resource to the consumer. The Department seeks comment on the categories of products or services that fall within this definition.
The Department proposes to define “integrity” as guarding against improper information modification or destruction and includes ensuring information non-repudiation and authenticity.
The Department proposes to define “knowledge” as knowledge of a circumstance (the term may be a variant, such as “know,” “reason to know,” or “reason to believe”) including not only positive knowledge that the circumstance exists or is substantially certain to occur, but also an awareness of a high probability of its existence or future occurrence. Such awareness is inferred from evidence of the conscious disregard of facts known to a person and is also inferred from a person's willful avoidance of facts. This definition is similar to that in the Department's Export Administration Regulations.
The Department proposes to define “large AI model with potential capabilities that could be used in malicious cyber-enabled activity” as any AI model with the technical conditions of a dual-use foundation model, or that otherwise has technical parameters of concern, that has capabilities that could be used to aid or automate aspects of malicious cyber-enabled activity, including but not limited to social engineering attacks, vulnerability discovery, denial-of-service attacks, data poisoning, target selection and prioritization, disinformation or misinformation generation and/or propagation, and remote command-and-control, as necessary and appropriate of cyber operations. The Department seeks comment on this proposed definition.
E.O. 14110 also instructs the Secretary to determine and to update, “as necessary and appropriate,” the set of technical conditions for a “large AI model to have potential capabilities that could be used in malicious cyber-enabled activity.” Based on the above definition, the Secretary will make this initial determination and any necessary and appropriate updates to it which the Department will publish in the
The Department seeks comment on the proposed definition, as well as on the Secretarial process for determining and, because of rapidly advancing technology, updating the set of specific technical conditions necessary for a large AI model to meet the definition and have the potential capabilities that could be used in malicious cyber-enabled activities.
The Department proposes to define “manageability” as providing the capability for granular administration of data, including alteration, deletion, and selective disclosure.
The Department proposes to define “predictability” as enabling reliable assumptions by individuals, owners, and operators about data and their processing by a system, product, or service.
The Department proposes to define “privacy-preserving data sharing and analytics” as the use of privacy-enhancing technologies to achieve disassociability, predictability, manageability, and confidentiality when performing analytics on data.
The Department proposes to define “Red Flag” as a pattern, practice, or specific activity that indicates the possible existence of malicious cyber-enabled activities.
The Department proposes to define “reseller” as a person that maintains a Reseller Account.
The Department proposes to define “risk-based” as based on an assessment of the relevant risks, including those presented by the various types of service offerings maintained by an IaaS provider, the methods used to open an Account, the varying types of identifying information available to an IaaS provider, and an IaaS provider's customer base.
The Department proposes to define “Secretary” as the Secretary of Commerce or the Secretary's designee.
The Department proposes to define “threat landscape” as the broad environment of geopolitical, economic, and technological factors that must be evaluated when developing risk-based procedures that enable an IaaS provider to form a reasonable belief of the true identity of each Account owner and beneficial owner to deter facilitating significant malicious cyber-enabled activities.
The Department proposes to define “training” or “training run” as any process by which an AI model learns from data through the use of computing power.
The Department proposes to clarify the E.O.'s definition of “United States Infrastructure as a Service product.” The E.O. defines this term as “any Infrastructure as a Service Product owned by any United States person or operated within the territory of the United States of America.” The Department considers Reseller Accounts as IaaS products.
E.O. 13984 defines “United States Infrastructure as a Service provider” as “any United States Person that offers any Infrastructure as a Service product.” The Department notes that this
In response to the ANPRM, several commenters suggested that the Department clarify whether this term includes foreign subsidiaries of United States persons. Specifically, these commenters believed including foreign subsidiaries of United States persons in this definition would exceed the scope of the E.O., which focuses on threats to the United States from U.S. IaaS products, not those offered by foreign subsidiaries. The Department proposes to clarify that a foreign subsidiary of a U.S. IaaS provider is not considered to be a “United States Infrastructure as a Service provider.”
E.O. 13984 requires the Secretary to propose regulations to require providers to “verify the identity of a foreign person in connection with the opening of an Account or the maintenance of an existing Account.” It requires that any regulations set out the types of documentation or procedures “required to verify the identity of any foreign person acting as a lessee or sub-lessee of these products or services.” The Department proposes to consider U.S. resellers of U.S. IaaS products as U.S. IaaS providers subject to these proposed regulations.
Under this proposed rule, U.S. IaaS providers and their foreign resellers would maintain CIPs, perform effective customer verification, and maintain identifying information about their foreign customers, which is critical to combating malicious cyber-enabled activities. The Department proposes to require that all U.S. IaaS providers implement their own CIPs, require CIPs of their foreign resellers, and report to the Department on these CIPs. The Department will consider allowing U.S. IaaS providers an adjustment period to implement some provisions of this proposed regulation and notify the Department accordingly, and anticipates that compliance would be required within one year of the date of publication of any final rule.
Accordingly, the Department proposes to require IaaS providers develop their own risk-based CIP. Taking into consideration the different types of IaaS Accounts, the different methods used to open the Accounts, and the types of information available to identify foreign malicious cyber actors, while avoiding the imposition of an undue burden on providers, the Department proposes to allow each provider to create a CIP that matches its unique service offerings and customer bases. Provided that IaaS providers meet certain minimum requirements in their CIPs, providers can create CIPs that are flexible and minimally burdensome to their business operations.
The Department proposes to require U.S. resellers of U.S. IaaS Accounts to establish CIPs and identity verification procedures to be used any time they act as a reseller for U.S. IaaS products. The CIPs of such U.S. resellers would be subject to the minimum standards in this proposed rule. U.S. resellers would be responsible for establishing the identity of their potential customers, including all prospective beneficial owners of these Accounts, and determining whether they are U.S. persons. U.S. resellers would also be responsible for verifying the identity of their foreign customers under this proposed rule. The Department requests comments on whether resellers that are small businesses might find it more difficult to develop a CIP. The Department proposes to allow U.S. resellers, by agreement with a U.S. IaaS provider, to reference, use, rely on, or adopt the CIPs created by the U.S. IaaS provider to help minimize any compliance burdens on the reseller. The Department further seeks comments on whether resellers currently request identifying information from their customers and how these resellers verify the identity of their prospective foreign customers.
The Department seeks comments on whether to require IaaS providers to conduct third-party or internal audits to confirm their compliance with CIP requirements in the proposed rule. The Department also seeks comments on whether the Department should receive and approve all CIPs. The Department additionally seeks comments on whether the rulemaking should require U.S. IaaS providers to submit Red Flags either to the Department or to another relevant department or agency. Below, the Department explains additional specific requirements for CIPs.
Under the proposed rule, each CIP must include procedures that U.S. IaaS providers and their foreign resellers will use to collect information from all covered existing and prospective customers, that is, those who have applied for an account. At a minimum, the following data would be collected: a customer's name, address, the means and source of payment for each customer's Account, email addresses and telephone numbers, and internet protocol (IP) addresses used for access or administration of the Account. IaaS providers may alter their CIPs to require additional information from prospective customers that is necessary to verify the identity of any foreign person, but all CIPs must, at a minimum, collect the previously listed data. The Department proposes omitting a requirement for collecting and verifying national identification numbers because, based on public feedback, the Department believes that national identification number verification would be unduly burdensome and would not be necessary to verify identity. The Department seeks comments on whether other forms of identification, such as digital or technology-based identification, should be included as an acceptable means by which IaaS providers may verify customers' identities, and if companies have privacy-protecting or privacy-enhancing technologies to verify this same information or other alternatives that can effectively achieve identity verification.
The Department believes that many U.S. IaaS providers and their foreign resellers already collect this information from their customers, and that the proposed rule would set a baseline for data collection that would help all providers effectively verify and document the identities of their customers. The Department seeks comments on the costs and burdens associated with this proposed requirement and whether the Department should include additional data collection in a baseline requirement for CIPs. The Department proposes a requirement that providers make a written description of their CIPs available for inspection by the Department, which may identify specific shortcomings for providers to resolve. The Department seeks comment on this proposal.
The Department is proposing to require that CIPs account for the collection of identifying information about the actual Account owner and all beneficial owners of the Account. Specifically, the proposed required description of the CIP would specify how providers would ensure that all beneficial owners of an Account at its inception and any new beneficial owner added to the Account undergo the same identification procedures as the person opening the Account. The Department seeks comment on this approach.
E.O. 13984 addresses threats to U.S. IaaS products and services by foreign malicious cyber actors. Section 1 of the E.O. therefore requires the Department to propose regulations to require U.S. IaaS providers to verify the identity of “a foreign person that obtains an Account.”
Therefore, the Department proposes to require U.S. IaaS providers to verify the identity of foreign persons who obtain an Account from providers and to require the same of their foreign resellers. Although providers would be required to create a CIP that includes the minimum data collection requirements for all prospective customers, they would not be required to verify the identity of customers with Accounts opened by or on behalf of a U.S. person, unless a foreign beneficial owner is added to the Account or the Account or a portion of the Account is resold to a foreign person.
The Department seeks comments about whether the proposed data collection requirements above would enable providers to accurately distinguish foreign current and prospective customers from others. If these proposed requirements are inadequate, what additional required information should be included in the CIPs to aid in these efforts? The Department also seeks comments on the availability of secure data deletion standards and whether to require their implementation for Accounts determined to be opened, owned, and accessible exclusively by U.S. persons.
The Department proposes to require that CIPs include procedures to ensure that U.S. IaaS providers and their foreign resellers verify the identity of all foreign Account owners and foreign beneficial owners. Under the proposed rule, providers may craft their own procedures and methods to verify the identity of their prospective foreign customers and beneficial owners, provided that their CIPs include risk-based procedures that enable the provider to form a reasonable belief about the true identity of each customer and beneficial owner. These procedures must be based on a provider's assessment of the relevant risks, including those presented by the various types of service offerings maintained by the provider, the methods used to open an Account, the varying types of identifying information available to the provider, and the provider's customer base. Under the proposed rule, the CIP must establish whether a provider will use documentary or non-documentary verification or a combination of both. It must establish how a provider will verify the identity of its customers when the customer is unable to produce the requested documents. The Department believes this flexibility would minimize the burden placed on providers by these regulations. The Department seeks comments on this risk-based approach to allow providers to form reasonable beliefs of the true identity of each customer and beneficial owner and on what information they would need to collect to accomplish this.
Under the proposed rule, the CIP must include steps a provider would take if it is unable to verify the identity of any customer, including refusing to open an Account and/or additional monitoring pending attempts at verification. It must further set out the terms under which a customer may continue to have access to an Account while the provider attempts to verify the identity of the customer, and when a provider would close an Account after attempts to verify a customer's identity have failed. Additionally, it must describe measures for redress and issue management to address situations in which legitimate customers may fail identity verification, or in which their information was compromised and a fraudulent account established. The Department seeks comments on whether to require specific verification methods, such as email or payment verification, for all prospective customers. The Department seeks comments on whether the Department should allow providers to grant potential customers access to Accounts prior to successful identity verification. The Department seeks comments on whether including reference to National Institute of Standards and Technology (NIST) Special Publication (SP) 800-63 regarding digital identity guidelines would help IaaS providers meet requirements for identity verification.
The Department proposes to require U.S. IaaS provider and foreign reseller of U.S. IaaS product CIPs to include procedures for maintaining, protecting, and obtaining access to records of relevant customer information accessed in the process of verifying customer identities. At a minimum, this record must include a description of the identity evidence and attributes provided by the customer when the customer first attempted to open an Account, a description of the methods and results of any measures undertaken to verify customer identity, and a description of the resolution of any substantive discrepancy discovered when verifying the identifying information. The proposed rule leaves to IaaS providers the discretion to design their own recordkeeping procedures, so long as these procedures obtain this minimum information.
The Department proposes to require that CIPs of U.S. IaaS providers and their foreign reseller include requirements to securely maintain these records and describe measures taken to ensure that the information is secure. The proposed regulations would require that IaaS providers limit access to any records or documents created, retained, or accessed pursuant to these regulations by any third parties or IaaS provider employees without a need-to-know basis for obtaining this access. However, no such requirement should be read to limit IaaS providers' ability to share security best practices and threat information with other IaaS providers, relevant consortia, or the U.S. Government as needed and consistent with applicable law. The Department seeks comments on the feasibility of this approach and the costs of doing so. The Department further seeks comments on whether there currently exist best practices for the maintenance, storage, and security of customer identifying information.
The Department proposes to require that U.S. IaaS providers retain these records for a period of two years after the date upon which an Account was last accessed or closed. The Department preliminarily determines that a two-year period is necessary to allow law enforcement the ability to gain access to this information should an Account be suspected of hosting malicious cyber-enabled activity. The Department seeks comments on the burdens to IaaS providers of maintaining these records for two years, and whether there are alternative ways to allow for both immediate and long-term access to customer information should an Account be used for malicious cyber-enabled activity. The Department seeks comments on whether to require that CIPs include procedures to address situations where an Account that has been inactive for more than two years is subsequently accessed by a foreign person, and whether to require that IaaS providers request that the foreign person provide the enumerated identifying information again in these circumstances.
As directed in E.O. 14110, the Department proposes to require that U.S IaaS providers only initiate or continue a reseller relationship with foreign resellers of U.S. IaaS products that maintain and implement a CIP that meets the requirements for CIPs of U.S. IaaS providers in this proposed rule. The Department recognizes that it will take U.S. IaaS providers time to educate, coordinate, and collect information from their foreign resellers on CIP requirements and therefore anticipates allowing U.S. IaaS providers up to one year to implement such final provisions and notify the Department accordingly. Under this proposed rule, U.S. IaaS providers would be required to furnish a copy of any foreign reseller's CIP to the Department within ten calendar days following a request for the same from the Department. The Department seeks comments on the potential challenges that U.S. IaaS providers would face when collecting this information from their foreign resellers of U.S. IaaS products. The proposed rule would also require that, upon receipt of evidence that indicates the failure of a foreign reseller to maintain or implement a CIP or that indicates malicious cyber-enabled activity, U.S. IaaS providers must report malicious cyber-enabled activity and close accounts associated with the activity and must terminate the reseller relationship within 30 calendar days. The Department seeks comments on the challenges U.S. IaaS providers would face in investigating and remediating malicious cyber activity by foreign resellers, as well as the contractual difficulties posed by terminating the relationship with a non-compliant foreign reseller. The Department further seeks comments on the extent to which there currently exist customer identification and verification practices which U.S. IaaS providers require their foreign resellers to use.
The Department proposes to require that U.S. IaaS providers submit to the Department certain information about their CIPs and their foreign resellers' CIPs, to include procedures on verifying customer identity and detecting malicious cyber activity, as well as information and data on their provision of IaaS products. The Department further proposes to require that U.S. IaaS providers and their foreign resellers update their CIPs annually to protect against new cyber threats and vulnerabilities, as well as to increase efficiency and data security, and to certify to the Department that such annual updates have occurred. The Department proposes that U.S. IaaS providers must notify the Department of any updates to their CIP or any CIP of their foreign resellers. In these annual certifications, providers would also attest to the Department that, since the date of last certification, they have reviewed their CIPs and updated their CIPs to account for any changes in their service offerings and for changes to the threat landscape. The certification would include an attestation that the current CIP complies with the provisions of the proposed rule. This attestation would require the provider to indicate the frequency with which it was unable to verify the identity of a foreign customer in the prior calendar year and record the resolution for each of those situations. The Department seeks comments on the usefulness and feasibility of such attestation and whether the Department should require additional information in these certifications, the procedures for submission of such certifications, and whether the Department should require these certifications more or less frequently than annually. The Department seeks comments on whether there currently exist best practices for customer identification and verification that providers can use as a model for their CIPs.
Section 1(c) of E.O. 13984 permits the Secretary, in accordance with such standards and procedures as the Secretary may delineate and, in consultation with the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence, to exempt any U.S. IaaS provider, or any specific type of Account or lessee, from the requirements of any regulation issued pursuant to the section. Such standards and procedures may include a finding by the Secretary that a provider, Account, or lessee complies with security best practices to otherwise deter abuse of IaaS products. Section 4.2(d)(iii) of E.O. 14110 also provides that the Secretary may “exempt a United States IaaS Provider with respect to any specific foreign reseller of their United States IaaS Products, or with respect to any specific type of account or lessee, from the requirements of any regulation issued pursuant to this subsection,” that section being related to CIP requirements for foreign resellers of U.S. IaaS products.
This NPRM proposes standards and procedures for exemptions from CIP requirements in §§ 7.302 through 7.305 for U.S. IaaS providers and with regard to any of their specific foreign resellers. The regulations propose that providers seeking an exemption submit a written request electronically. The Department anticipates that the final rule would designate an email address to receive such requests. The Department seeks comments on these standards and procedures in proposed § 7.306. The Department seeks comment on whether there exist security best practices to deter abuse of U.S. IaaS products that the Secretary may reference in the future to authorize exemptions from these regulations, including but not limited to improving event log management to generate, safeguard, and retain logs of IaaS providers' system and network events, both to improve incident detection and to aid in incident response and recovery activities. The Department also seeks comments on whether there are appropriate safe harbor activities that might form the basis of an exemption program.
The Department proposes regulations to implement the authority provided to the Secretary to take either of the special measures enumerated in E.O. 13984, should the Secretary determine that reasonable grounds exist for concluding that a jurisdiction or person outside of the U.S. “has any significant number of foreign persons offering U.S. IaaS products that are used for malicious cyber-enabled activities or any significant number of foreign persons directly obtaining U.S. IaaS products for use in malicious cyber-enabled activities.” The Department proposes to allow the Department to initiate investigations of its own accord or accept referrals from other executive branch agencies or providers to evaluate evidence about a particular foreign jurisdiction or person to determine whether to impose a special measure. The Department would then assess the information in its possession and information available from public and other sources about a foreign person or foreign jurisdiction to determine whether imposing a special measure would be appropriate. Should the Secretary determine that the evidence warrants the imposition of a special measure, the Secretary would issue a determination in the
E.O. 13984 provides that, when determining whether a particular foreign jurisdiction “has any significant number of foreign persons offering U.S. IaaS products that are used for malicious cyber-enabled activities or any significant number of foreign persons directly obtaining U.S. IaaS products for use in malicious cyber-enabled activities,” the Secretary must consider, among other relevant information: (1) evidence that foreign malicious cyber actors have obtained U.S. IaaS products in that foreign jurisdiction, including whether such actors obtained such U.S. IaaS products through reseller accounts; (2) the extent to which that foreign jurisdiction is a source of malicious cyber-enabled activities; and (3) whether the U.S. has a mutual legal assistance treaty with that foreign jurisdiction, and the experience of U.S. law enforcement officials in obtaining information about activities involving U.S. IaaS products originating in or routed through such foreign jurisdiction.
With respect to foreign persons, the Secretary must assess: (1) the extent to which a foreign person uses U.S. IaaS products to conduct, facilitate, or promote malicious cyber-enabled activities; (2) the extent to which U.S. IaaS products offered by a foreign person are used to facilitate or promote malicious cyber-enabled activities; (3) the extent to which U.S. IaaS products offered by a foreign person are used for legitimate business purposes in the jurisdiction; and (4) the extent to which actions short of the imposition on special measures are sufficient, with respect to transactions involving the foreign person offering U.S. IaaS products, to guard against malicious cyber-enabled activities. Finally, the Secretary may analyze any information gleaned through the Department's existing authority to review ICTS transactions pursuant to its authority derived from Executive Order 13873 of May 17, 2019, “Securing the Information and Communications Technology and Services Supply Chains” (84 FR 22689). The Department seeks comments on any additional relevant factors the Secretary should consider.
The Department proposes to require that the Secretary's investigation process include consultation with the agencies referenced in E.O. 13984, namely the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, and other heads of other executive departments and agencies as the Secretary deems appropriate, to determine which special measure to impose. This consultation would include a review of the available evidence to determine whether to impose a special measure against a foreign jurisdiction or against a foreign person; a consideration of whether the imposition of the special measure would create a significant competitive disadvantage, including any undue cost or burden associated with compliance, for providers; and a determination of the extent to which the imposition of a special measure or the timing of the special measure would have a significant adverse effect on legitimate business activities involving the foreign jurisdiction or foreign person. Finally, the determination would include an assessment of the effect of any special measure on U.S. supply chains, public health or safety, national security, law enforcement investigations, or foreign policy. The Department seeks comments on whether additional considerations should be included before the Secretary would choose a special measure.
Section 4.2 (c)(i) of E.O. 14110 instructs the Secretary to “propose regulations that require United States IaaS Providers to submit a report to the Secretary of Commerce when a foreign person transacts with that United States IaaS provider to train a large AI model with potential capabilities that could be used in malicious cyber-enabled activity.” Such report shall include, at a minimum, the identity of the foreign person and the existence of any training run of an AI model meeting the criteria set forth in E.O. 14110 or otherwise determined by the Secretary, and other information as identified by the Secretary. In addition, section 4.2(c)(ii) of E.O. 14110 directs that U.S. IaaS providers must be required to prohibit foreign resellers of their U.S. IaaS products from providing those products unless the foreign resellers submit such reports to the provider, which the provider must provide to the Secretary.
This proposed rule would require such providers to report to the Department information on instances of training runs by foreign persons for large AI models with potential capabilities that could be used in malicious cyber-enabled activity. Reportable information includes the identifying information about the training run (
Section 4.2(c)(iii) instructs the Secretary to “determine the set of technical conditions for a large AI model to have potential capabilities that could be used in malicious cyber-enabled activity, and revise that determination as necessary.”
The Department has proposed that a model meets the definition of a “large AI model with potential capabilities that could be used in malicious cyber-enabled activity” if it meets technical conditions issued by the Department in interpretive rules published in the
Though issued pursuant to the President's authority derived from IEEPA, E.O. 13984 is silent as to penalties for noncompliance. The Department proposes to clarify that any person who commits a violation of this proposed rule, if finalized, may be liable to the United States for civil or criminal penalties under IEEPA. Although the Department currently has penalty provisions under 15 CFR 7.200 for violations of Final Determinations issued pursuant to the Department's ICTS authorities pursuant to the IEEPA, the Department believes it is important to have a new enforcement section specific to violations of these IaaS-related provisions. Accordingly, the Department is adding a section on enforcement, which lists civil and criminal penalties, and the acts particular to these IaaS-related provisions that will result in those penalties. For example, the new enforcement section specifies that it is a violation to fail to create a CIP, or to fail to file with the Department a CIP certification, or fail to seek reauthorization for such CIPs on an
Regarding penalties for violations, whether a violation results in a civil or criminal penalty will depend largely on the nature of the offense. For example, intentionally or knowingly violating a provision of these regulations could result in criminal penalties, while unintentional violations are more likely to result in civil penalties. The Department seeks comments on this approach.
This rulemaking has been determined to be a significant action under Executive Order 12866, as amended by Executive Order 14094.
As required by Executive Order 12866, and the Regulatory Flexibility Act, 5 U.S.C. 601,
The reasons for and need for this action are summarized in this preamble. This rule is being proposed pursuant to E.O. 13984, “Taking Additional Steps To Address the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities,” and E.O. 14110, “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” As stated in E.O. 13984, “Foreign actors use United States IaaS products for a variety of tasks in carrying out malicious cyber-enabled activities, which makes it extremely difficult for United States officials to track and obtain information through legal process before these foreign actors transition to replacement infrastructure and destroy evidence of their prior activities; foreign resellers of United States [IaaS] products make it easier for foreign actors to access these products and evade detection.” Furthermore, E.O. 14011 states that “irresponsible use could exacerbate societal harms such as fraud, discrimination, bias, and disinformation; displace and disempower workers; stifle competition; and pose risks to national security.” To address these threats, E.O. 13984 requires the Secretary to propose regulations “that require United States Infrastructure as a Service (IaaS) providers to verify the identity of a foreign person that obtains an Account.” These regulations must also require U.S. IaaS providers to verify the identity of foreign customers, and the E.O. authorizes the Secretary to limit certain foreign actors' access to U.S. IaaS products. E.O. 14110 adds to these requirements by requiring the Secretary to propose regulations that require U.S. IaaS providers to ensure that foreign resellers of U.S. IaaS products verify the identity of any foreign person that obtains an IaaS Account for the foreign reseller. These requirements are necessary to protect the national security of the United States and the integrity of the ICTS supply chain.
The proposed rulemaking would apply to all U.S. providers of U.S. IaaS products, including resellers.
The Department estimated both a lower and upper bound for the number of entities affected by the proposed rule. To derive the lower bound estimate, the Department first identified a core group of IaaS providers that operate in the United States. This lower bound estimate assumes that all United States IaaS products are sold directly to the customer and no domestic resellers supply these products. Based on this lower bound estimate, the Department estimates that approximately 25 providers in the United States would be potentially directly impacted by this rulemaking.
The upper bound estimate of potentially impacted entities is based on the estimated number of resellers who participate in the sale of U.S. IaaS products. According to the Census Bureau, in 2020 there were 1,812 firms that owned at least one establishment located within the United States and operating in North American Industry Classification System (NAICS) code 517121—Telecommunication Resellers in the United States.
The Department assessed the administrative compliance burden on U.S. companies by estimating the costs of: (1) learning about the proposed rule; (2) developing CIPs; (3) implementing CIPs; (4) updating CIPs; (5) completing annual certifications; (6) educating foreign resellers on CIP requirements; and (7) processing reporting from and on foreign resellers and foreign customers. Although the rulemaking would provide certain regulatory alternatives for industry, such as the option to adopt the CIP of another provider, and exemptions from the CIP requirement in certain circumstances, the below analysis assumes that each company would engage in the development, implementation, and updating of a CIP.
The Department also requests public comment on any of the assumptions and estimates in this analysis.
The Department expects that businesses learning about the proposed rule and its requirements would largely be accomplished by attorneys and operations managers. The Department's estimate for the cost to businesses of learning about the rulemaking is further derived from estimates of the number of firms potentially impacted by the rulemaking, the share of potentially impacted firms likely to devote time and resources to learning about the rulemaking, the number of hours needed to read and learn about the rulemaking, and the wages of the employees tasked with learning about the rulemaking. Table 1 provides a detailed breakdown of the framework for estimating these costs.
To develop CIPs, companies would likely be required to assess their offerings of IaaS products, analyze relevant cybersecurity risks associated with these products, evaluate procedures for customer identity verification, and develop risk mitigation strategies.
To estimate the financial impact to businesses of developing a CIP, the Department estimated the number of firms likely impacted by the proposed rule, the share of potentially impacted firms likely to devote time and resources to developing a CIP, the number of hours needed to develop a CIP, and the wages of the employees tasked with developing a CIP. A detailed breakdown of the framework for estimating these costs can be found in table 2.
Implementation of a CIP would likely entail: collecting and verifying identifying information of customers, maintaining a secure recordkeeping system, performing due-diligence checks using government lists of known malicious cyber actors, and providing annual reports to the Department. The proposed rule would also require entities to monitor aspects of compliance with their foreign customers and resellers. The costs estimated for implementing a CIP would be incurred annually. To estimate the financial impact to businesses of implementing a CIP, the Department estimated the number of firms potentially impacted by the proposed rule, the share of potentially impacted firms likely to implement a CIP, and the wages of the employees performing these tasks. A detailed breakdown of the framework for estimating these costs can be found in table 3.
The proposed rule would require that affected entities regularly, at least annually, update their CIPs to account for new technologies, cybersecurity vulnerabilities, and changes to their business. This would likely entail reviewing the threat landscape from the previous year and identifying system vulnerabilities. Table 4 details the estimated financial impact to businesses of annually updating a CIP.
The proposed rule would require IaaS providers to annually certify to the Department that they have updated their CIP, that their CIP complies with the rulemaking, and that they have recorded the resolution of each situation in which the IaaS provider was unable to verify the identity of a customer since its last certification.
The estimated costs of submitting annual certifications would occur annually. This estimate for costs is derived from estimates of the number of firms impacted by the proposed rule, the share of potentially impacted firms likely to submit the annual certifications, and the wages of the employees performing these tasks. A detailed breakdown of the framework for estimating these costs can be found in table 5.
The burden of learning about the proposed rule, and developing, maintaining, and recertifying CIPs for foreign resellers would fall upon foreign entities (the foreign resellers themselves). However, the Department recognizes that U.S. IaaS providers would be part of educating foreign resellers on regulatory requirements. U.S. IaaS providers would also need to collect and submit CIPs from foreign resellers. The Department anticipates that foreign resellers of U.S. IaaS providers would comply with the regulatory requirements, so does not anticipate there to be impact beyond the regulatory costs of compliance (which will fall to foreign entities), and the burden on U.S. providers to educate foreign resellers and process foreign reseller CIPs.
The Department recognizes that individual costs to industry would vary according to the number of foreign resellers connected to a U.S. IaaS provider. However, the Department is unable to estimate the potential number of foreign resellers of U.S. IaaS products, as this information is business proprietary information held by the U.S. IaaS providers. Following the implementation of CIP reporting requirements to the Department, the Department may be able to estimate a lower bound and upper bound on potential cost per CIP certification. However, at this time, due to the described limitations, the cost estimates have been made on a programmatic basis as opposed to a per CIP certification basis.
U.S. IaaS providers would be required to ensure their foreign resellers comply with this proposed rule and to ensure they receive CIPs from their foreign resellers. This could involve notifying their foreign resellers of this proposed rule's requirements, advising foreign resellers on CIP solutions or processes, and generally educating foreign resellers about this rulemaking.
This estimate for costs is derived from estimates of the number of U.S. firms impacted by the proposed rule, the share of potentially impacted firms to educate their foreign resellers, and the wages of the employees performing these tasks. A detailed breakdown of the framework for estimating these costs can be found in table 6.
The costs to U.S. IaaS providers associated with processing reporting from foreign resellers include costs of collecting and submitting to the Department upon request the CIPs from any foreign resellers, as well as any associated miscellaneous administrative costs. Processing reporting also would include U.S. IaaS providers' activities to report on any of their foreign customers using their U.S. IaaS products in a covered transaction for large AI model training. These would be annual costs.
This estimate for costs is derived from estimates of the number of U.S. firms impacted by the proposed rule, the share of potentially impacted firms that need to process foreign reseller CIPs and reports on foreign customers using their U.S. IaaS products in a covered transaction for large AI model training, and the wages of the employees performing these tasks. A detailed breakdown of the framework for estimating these costs can be found in table 7.
Using the methodology described above, the Department has broken out the estimated compliance costs—summarized in tables 8 and 9—associated with the proposed rule's implementation. The cumulative costs are estimated to be between $270,672 and $171.7 million.
The ICTS industry, which includes IaaS products, has become integral to the daily operations and functionality of U.S. critical infrastructure, to U.S. Government operations, and to the U.S. economy as a whole. As such, exploitation of vulnerabilities within the ICTS supply chain can have a drastic effect on the U.S. national security. As noted in E.O. 13984, “foreign malicious cyber actors aim to harm the United States economy through the theft of intellectual property and sensitive data and to threaten national security by targeting United States critical infrastructure for malicious cyber-enabled activities.”
U.S. entities providing IaaS products, such as network management or data storage, can create multiple opportunities for foreign adversaries to exploit potential vulnerabilities in the ICTS ecosystem. These potential vulnerabilities are often categorized under the general concepts of threats to privacy, data integrity, and denial of service.
As E.O. 13984 highlights, foreign actors can exploit IaaS product vulnerabilities to steal critical intellectual property, health data, government information, or financial user information, potentially without detection. Once detected, the existence of such vulnerabilities may be extremely costly or impossible to remedy.
Malicious foreign actors can also exploit U.S. networks and systems to facilitate data breaches, potentially modifying critical files or data streams, or otherwise impacting the availability of data across U.S. networks. Such capabilities could be exercised in areas as diverse as financial market communications, satellite control systems, or other sensitive sectors.
Further, a foreign adversary could target vulnerable IaaS products to implement denial of service attacks, potentially causing widespread disruptions to critical industries. Without effective attribution, it is difficult for authorities to take mitigating actions to trace and prevent these types of attacks.
These risks, if exploited, could carry significant economic and social costs to both the U.S. Government and consumers. Sophisticated cyber-attacks are often obfuscated, making it difficult to establish the exact number of attacks that have leveraged IaaS product vulnerabilities against the U.S. ICTS supply chain. Such attacks, however, are increasing in frequency, exacting heavy tolls on U.S. consumers and businesses. Not only can attacks impact both sales and productivity, but they can also enact direct costs on businesses that must expend significant resources to remedy vulnerabilities or even pay ransom to retrieve data lost to attackers. While the Department is unable to calculate with certainty the number of attacks targeting the IaaS industry, the potential costs from these attacks are undoubtedly high. Additionally, if the use of IaaS products is expected to increase in the future, so too would the possibility of attacks. While the Department lacks the data necessary to determine precisely the monetary benefits of this proposed rule to compare with its estimated costs, significant portions of the U.S. economy are dependent on resilient ICTS and IaaS supply chains to function, and any disruption to these supply chains will cause significant economic harm to downstream industries.
The Department considered several alternatives to this regulation to reduce the costs. These are explained in detail in subpart C, Regulatory Flexibility Analysis, of this section, below.
In compliance with section 603 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, the Department has prepared an initial regulatory flexibility analysis (IRFA) for this proposed rule. The IRFA describes the economic impacts the proposed action may have on small entities. The Department seeks comments on all aspects of the IRFA, including the categories and numbers of small entities that may be directly impacted by this proposed rule.
(1)
(2)
(3)
(4)
(i) The proposed rule would require that the customer identification and verification requirement be satisfied by obtaining identification information from each customer. The provider would then be required to verify customer identities through documentary or non-documentary methods and to maintain in its records for two years a description of (i) any document relied on for verification, (ii) any such non-documentary methods and results of such measures undertaken, and (iii) the resolution of any substantive discrepancies discovered in verifying the identification information. The Department estimates that the identification, verification, and recordkeeping requirements in the proposed rule would require an IaaS provider employee twenty (20) minutes, on average, to fulfill.
(ii) Annual Certifications. The proposed rule would require that U.S. IaaS providers of U.S. IaaS products provide to the Department annual certifications that indicate that the provider has updated their customer identification program to account for technological advances and the evolving threat landscape. The Department estimates it would require eight (8) to twenty-four (24) hours to review prior year compliance, complete CIP updates, and submit certification.
(iii) The proposed rule would require providers to submit a report to the Department whenever a foreign person transacts with them to train a large AI model with potential capabilities that could be used in malicious cyber-enabled activity. The Department estimates that an IaaS provider making a report on such a transaction could take on average twenty (20) minutes, depending on the complexity of the instance.
(5)
(6)
•
•
•
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This proposed rule contains new collection-of-information requirements subject to review and approval by OMB under the PRA. Specifically, this proposed rule would require U.S. IaaS providers of U.S. IaaS products to develop a written CIP, which dictates how the provider would collect identifying information about its customers, how the provider would verify the identity of its foreign customers, store and maintain
Alternatively, under the proposed rule, U.S. IaaS providers of U.S. IaaS products may seek an exemption from the CIP requirement by providing a written submission to the Secretary. Should the Secretary grant an exemption on the basis of a finding that the provider complies with security best practices to deter abuse of IaaS products, including that the provider has established an Abuse of IaaS Products Deterrence Program, the provider must thereafter submit annual notifications to the Department so that the Department could be assured that it continues to maintain security best practices to deter the abuse of U.S. IaaS products.
Public reporting burden for the reporting and recordkeeping requirements are estimated to average 245,229 hours for the initial learning, developing, and implementing a CIP for the relevant industry participants (897 respondents * 274 hours, tables 1, 2, and 3). Thereafter, the Department estimates a public reporting burden of 84,494 hours to update and annually certify with the Department a CIP once it has been developed, as well as prepare the annual certification (929 respondents * 91 hours, tables 4 and 5). The Department estimates a public reporting burden of 127,328 hours for the relevant industry participants to educate their foreign resellers on the proposed rule and process reporting from and on foreign resellers and foreign customers (692 respondents * 184 hours, tables 6 and 7). These estimates include the time for reviewing instructions, searching existing data sources, gathering the data needed, and completing and reviewing the collection of information.
The total estimated cost to the U.S. Government is $409,200 (500 notifications * 2 staff @GS-12 salary ($102.30/hr) * average of 10 hours each to review for each notification). The $102.30 per hour cost estimate for this information collection is consistent with the GS-scale salary data for a GS-12 step 5.
The Department requests comments on the information collection and recordkeeping requirements associated with this proposed rule. These comments will help the Department:
(i) evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(ii) evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(iii) enhance the quality, utility, and clarity of the information to be collected; and
(iv) minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
This proposed rule would not produce a Federal mandate (under the regulatory provisions of title II of the Unfunded Mandates Reform Act of 1995) for State, local, and tribal governments or the private sector.
This proposed rule does not contain policies having federalism implications requiring preparations of a Federalism Summary Impact Statement.
This proposed rule does not contain policies that have takings implications.
The Department has analyzed this proposed rule under Executive Order 13175 and has determined that the action would not have a substantial direct effect on one or more Indian tribes, would not impose substantial direct compliance costs on Indian tribal governments, and would not preempt tribal law.
The Department has reviewed this rulemaking action for the purposes of the National Environmental Policy Act (42 U.S.C. 4321
Administrative practice and procedure, Business and industry, Communications, Computer technology, Critical infrastructure, Executive orders, Foreign persons, Investigations, National security, Penalties, Technology, Telecommunications.
For the reasons set out in the preamble, 15 CFR part 7 is proposed to be amended as follows:
50 U.S.C. 1701,
Foreign actors may use United States Infrastructure as a Service (IaaS) products for a variety of malicious cyber-enabled activities. In light of these threats, it is the purpose of this subpart to:
(a) Require U.S. IaaS providers of U.S. IaaS products to implement programs to maintain certain records related to IaaS Accounts in which foreign persons have an interest and verify the identity of such persons, and to require their foreign resellers to do the same, in order to facilitate law enforcement requests for such records and otherwise implement the provisions of Executive Order 13984 and Executive Order 14110;
(b) Prevent foreign persons from using U.S. IaaS products to conduct malicious cyber-enabled activities; and
(c) Safeguard the national security of the United States.
For the purposes of this subpart:
(1) Exercises substantial control over a customer; or
(2) Owns or controls at least 25 percent of the ownership interests of a customer.
(1) An AI model that is trained on broad data; generally uses self-supervision; contains at least tens of billions of parameters; is applicable across a wide range of contexts; and that exhibits, or could be easily modified to exhibit, high levels of performance at tasks that pose a serious risk to security, national economic security, national public health or safety, or any combination of those matters, such as by:
(i) Substantially lowering the barrier of entry for non-experts to design, synthesize, acquire, or use chemical, biological, radiological, or nuclear (CBRN) weapons;
(ii) Enabling powerful offensive cyber operations through automated vulnerability discovery and exploitation against a wide range of potential targets of cyber attacks; or
(iii) Permitting the evasion of human control or oversight through means of deception or obfuscation.
(2) Models meet this definition even if they are provided to end users with technical safeguards that attempt to prevent users from taking advantage of the relevant unsafe capabilities.
(a)
(b)
(c)
(d)
(1)
(ii) The CIP must contain procedures for opening an Account that specify the identifying information that will be obtained from each potential customer and beneficial owner(s) of an Account that will be used to determine whether they are U.S. persons. These procedures must provide U.S. IaaS providers or foreign resellers of U.S. IaaS products with a sound basis to verify the true identity of their customer and beneficial owners and reflect reasonable due diligence efforts.
(iii) All U.S. IaaS providers and all of their foreign resellers of U.S. IaaS products must obtain, at a minimum, the following information from any potential foreign customer or foreign beneficial owner prior to opening an Account:
(A) Name, which shall be:
(
(
(B) Address, which shall be:
(
(
(
(
(
(C) Means and source of payment for the Account including:
(
(
(
(
(
(
(
(D) Email address.
(E) Telephonic contact information.
(F) internet protocol (IP) addresses used for access or administration and the date and time of each such access or administrative action, related to ongoing verification of such foreign person's ownership or control of such Account.
(2)
(i)
(ii)
(iii)
(iv)
(3)
(i) When the IaaS provider should not open an Account for the potential customer;
(ii) The terms under which a customer may use an Account while the IaaS provider attempts to verify the identity of a customer or beneficial owner of the Account, such as restricted permission or enhanced monitoring of the Account;
(iii) When the IaaS provider should close an Account or subject it to other measures, such as additional monitoring, permitted to be used under paragraph (d)(3)(ii) of this section, after attempts to verify the identity of a customer or beneficial owner of the Account have failed; and
(iv) Other measures for account management or redress for customers whose identification could not be verified or whose information may have been compromised.
(e)
(1)
(i) All identifying information about a customer or beneficial owner obtained under paragraph (d) of this section;
(ii) A copy or description of any document that was relied on under paragraph (d)(2)(i) of this section;
(iii) A description of any methods and the results of any measures undertaken to verify the identity of the customer and beneficial owners under paragraph (d)(2)(ii) or (iii) of this section; and
(iv) A description of the resolution of any substantive discrepancy discovered when verifying the identifying information obtained.
(2)
(3)
(f)
(1) Requiring a customer to notify the IaaS provider when the customer adds beneficial owners to its account; and
(2) Periodic continued verification of the accuracy of the information provided by a customer.
(a)
(b)
(c)
(d)
(e)
(a)
(1) A description of:
(i) The mechanisms, services, software, systems, or tools the IaaS provider uses to verify the identity of foreign persons according to criteria described in § 7.302(d);
(ii) The procedures the IaaS provider uses to require a customer to notify the IaaS provider of any changes to the customer's ownership—such as adding or removing beneficial owners—and the IaaS provider's process for ongoing verification of the accuracy of the information provided by a customer;
(iii) The mechanisms, services, software, systems, or tools used by the IaaS provider to detect malicious cyber activity;
(iv) The IaaS provider's procedures for requiring each foreign reseller to maintain a CIP;
(v) The IaaS provider's procedures for identifying when a foreign person transacts to train a large AI model with potential capabilities that could be used in malicious cyber-enabled activity, pursuant to § 7.308; and
(vi) Name, title, email, and phone number of the Primary Contact responsible for managing the CIP;
(2) Information pertaining to the IaaS provider's provision of U.S. IaaS products, including:
(i) A description of the IaaS provider's service offerings and customer bases in foreign jurisdictions;
(ii) The number of employees in IaaS provision and related services;
(iii) The mechanisms, services, software, systems, or tools used by the IaaS provider to detect malicious cyber-enabled activity, to include a description of how the mechanisms, services, software, systems, or tools are used;
(iv) The mechanisms, services, software, systems, or tools used by the IaaS provider to detect a training run that could result in the training of a large AI model with potential capabilities that could be used in malicious cyber-enabled activity;
(v) The process the IaaS provider uses to report any suspected or actual malicious cyber activity discovered to relevant authorities;
(vi) The number of IaaS customers;
(vii) The number and locations of the IaaS provider's foreign beneficial owners;
(viii) A list of all foreign resellers of IaaS products; and
(ix) The number of IaaS customer accounts held by foreign customers whose identity has not been verified, including details on:
(A) The date the IaaS provider provisioned the account, or accounts, for each customer whose identity is unverified;
(B) A description and timeline of actions the IaaS provider will take to verify the identity of each customer;
(C) Any other information available to the IaaS provider on the nature of the account, or accounts, provided to each unverified customer;
(D) The date the IaaS provider will deprovision the accounts if the identity of the customer continues to be unverified; and
(E) Steps the IaaS provider will take to ensure that foreign persons who failed to verify their identities do not reestablish new accounts; and
(3) An attestation that the written CIP of the IaaS provider meets the standards enumerated in § 7.302.
(b)
(1) Reviewed its CIP since the date of the last certification;
(2) Updated its CIP to account for any changes in its service offerings since its last certification;
(3) Updated its CIP to account for any changes in the threat landscape since its last certification;
(4) Ensured its CIP complies with this subpart since its last certification;
(5) Tracked the number of times the IaaS provider was unable to verify the identity of any customer since its last certification; and
(6) Recorded the resolution of each situation in which the IaaS provider was unable to verify the identity of a customer since its last certification.
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(1) Any information provided by U.S. IaaS provider in CIP certifications;
(2) Any additional information or communications provided to the Department;
(3) Any publicly available information or communications; and
(4) Any information otherwise obtained by or made available to the Department.
(d)
(1) Assessing whether the services or products of a U.S. IaaS provider or a foreign reseller are being used or are likely to be used:
(i) By foreign malicious cyber actors; or
(ii) By a foreign person to train a large AI model with potential capabilities that could be used in malicious cyber-enabled activity; or
(2) The failure of any U.S. IaaS provider of U.S. IaaS products to:
(i) Submit a CIP certification; or
(ii) Implement measures recommended by the Department as the result of a compliance assessment.
(e)
(1) Conduct compliance assessments annually or as determined by the Department based on the Department's evaluation of risk of the provider's CIP;
(2) Conduct follow-up compliance assessments of providers to ensure remediation of any findings or determinations made by the Department; and
(3) Request an audit of the U.S. IaaS provider's CIP processes and procedures.
(f)
(1) Recommend remediation measures to be taken by the U.S. IaaS providers of U.S. IaaS products, including but not limited to:
(i) Measures to address any risk of U.S. IaaS products being used in support of malicious cyber activity or to train a foreign-owned large AI model with potential capabilities that could be used in malicious cyber-enabled activity; and
(ii) Any special measures the IaaS provider must take in accordance with § 7.307; and
(2) Determine to review a transaction or class of transactions of an IaaS provider according to procedures described in subpart B of this part.
(a)
(b)
(1) Identify relevant Red Flags for the Accounts that the IaaS provider offers or
(i) Risk Factors such as:
(A) The types of Accounts it offers or maintains;
(B) The methods it implements for an Account to be opened;
(C) The methods it implements for an Account to be accessed;
(D) The methods it implements to monitor and assess activities related to its Accounts; or
(E) Its current or previous experiences with malicious cyber-enabled activities.
(ii) Sources of Red Flags such as:
(A) Incidents of malicious cyber-enabled activities that IaaS providers have experienced;
(B) Vulnerabilities that could contribute to malicious cyber-enabled activities if left unmitigated;
(C) Methods of malicious cyber-enabled activities that IaaS providers have identified; or
(D) Alerts, notifications, or other warnings about malicious cyber-enabled activities or improved analytic tools that the IaaS provider receives, including through engagement with the consortium under paragraph (c) of this section.
(iii) Categories of Red Flags such as:
(A) Presentation of suspicious personally identifiable information or identity evidence;
(B) Suspicious or anomalous activity detected in relation to an Account; or
(C) Notice from customers, victims of identity theft, law enforcement authorities, or other persons regarding possible fraud or abuse conducted in association with the Account, Account compromise, a newly identified vulnerability that may impact an IaaS product offering if exploited, or identity theft in connection with Accounts serviced by the IaaS provider.
(2) Detect Red Flags that have been incorporated into the ADP, including by implementing privacy-preserving data sharing and analytics methods as feasible.
(3) Respond appropriately to any Red Flags that are detected to prevent and mitigate malicious cyber-enabled activities, which may include:
(i) Monitoring an Account for evidence of malicious cyber-enabled activities;
(ii) Contacting the customer;
(iii) Changing any passwords, security codes, or other security devices that permit access to an Account;
(iv) Reopening an Account with a new account number;
(v) Rejecting a request to open a new Account;
(vi) Closing or suspending an existing Account;
(vii) Allowing only certain trusted methods of payment;
(viii) Notifying law enforcement; or
(ix) Determining that no response or a different response is warranted under the particular circumstances.
(4) Ensure the ADP (including the relevant Red Flags) is updated regularly to reflect changes in risks to Accounts, including factors such as:
(i) The experiences of the IaaS provider with malicious cyber-enabled activities;
(ii) Changes in methods of malicious cyber-enabled activities;
(iii) Changes in methods to detect, prevent, and mitigate malicious cyber-enabled activities;
(iv) Changes in the types of accounts that the IaaS provider offers or maintains; and
(v) Changes in the business arrangements of the IaaS provider including mergers, acquisitions, alliances, joint ventures, and service provider or foreign reseller arrangements.
(5) Establish procedures for the ongoing administration of the ADP. Each IaaS provider implementing an ADP must provide for the continued administration of the ADP and must:
(i) Obtain approval of the initial written ADP from either its board of directors, an appropriate committee of the board of directors, or a designated employee at the level of senior management;
(ii) Involve the board of directors, an appropriate committee thereof, or a designated employee at the level of senior management in the oversight, development, implementation, and administration of the ADP;
(iii) Train staff, as necessary, to effectively implement the ADP; and
(iv) Exercise appropriate and effective oversight of reseller arrangements with respect to detecting and mitigating Red Flags.
(c)
(d)
(e)
(1) Any U.S. IaaS provider of U.S. IaaS products seeking to obtain the Secretary's finding exempting it or one of its foreign resellers from CIP requirements shall initiate the process by providing a written submission to the Secretary describing its establishment of an ADP consistent with paragraph (a) of this section. Such submission should be made electronically.
(2) Upon receipt of a written submission, the Secretary will review the submission and may request additional information from the submitter. Prior to making a finding, the Secretary will consult with the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence, or their designees.
(3) The Secretary will make a finding based on an evaluation of the following factors:
(i) Whether the ADP is an appropriate size and complexity commensurate with the nature and scope of product offerings;
(ii) Whether the Program's ability to deter, detect, and respond to Red Flags is sufficiently robust;
(iii) Whether oversight of reseller arrangements is effective;
(iv) The extent of cooperation by providers with law enforcement, consistent with otherwise applicable law, to provide forensic information for investigations of identified malicious cyber-enabled activities; and
(v) Whether they participate in public-private collaborative efforts as described in paragraph (c) of this section.
(f)
(g)
(a)
(2)
(3)
(i) A foreign jurisdiction has any significant number of foreign persons offering U.S. IaaS products that are used for malicious cyber-enabled activities or any significant number of foreign persons directly obtaining U.S. IaaS products for use in malicious cyber-enabled activities; or
(ii) A foreign person has established a pattern of conduct of offering U.S. IaaS products that are used for malicious cyber-enabled activities or directly obtaining U.S. IaaS products for use in malicious cyber-enabled activities.
(4)
(5)
(6)
(7)
(b)
(1)
(2)
(3)
(i)
(B) The extent to which that foreign jurisdiction is a source of malicious cyber-enabled activities; and
(C) Whether the United States has a mutual legal assistance treaty with that foreign jurisdiction, and the experience of law enforcement officials and regulatory officials in obtaining information about activities involving U.S. IaaS products originating in or routed through such foreign jurisdiction.
(ii)
(B) The extent to which U.S. IaaS products offered by a foreign person are used to facilitate or promote malicious cyber-enabled activities;
(C) The extent to which U.S. IaaS products offered by a foreign person are used for legitimate business purposes in the foreign jurisdiction; and
(D) The extent to which actions short of the imposition of special measures pursuant to this paragraph (b) are sufficient, with respect to transactions
(4)
(i) Whether the imposition of any special measure would create a significant competitive disadvantage, including any undue cost or burden associated with compliance, for U.S. IaaS providers;
(ii) The extent to which the imposition of any special measure(s) or the timing of any special measure(s) would have a significant adverse effect on legitimate business activities involving the particular foreign jurisdiction or foreign person; and
(iii) The effect of any special measure(s) on United States national security, law enforcement investigations, U.S. supply chains, foreign policy, or any serious effect on U.S. public health or safety.
(c)
(d)
(a)
(2) Each U.S. IaaS provider must also require that their foreign resellers submit a report whenever they have “knowledge” of a covered transaction, as specified in paragraph (b) of this section, at the time specified in paragraph (c) of this section to the U.S. IaaS provider.
(3) Reports must be submitted to the Department in the form and manner specified in paragraph (d) of this section and, at a minimum, include responses for each of the requirements of paragraphs (d)(1)(i) through (ii) of this section.
(b)
(i) A transaction by, for, or on behalf of a foreign person which results or could result in the training of a large AI model with potential capabilities that could be used in malicious cyber-enabled activity (see the examples in paragraphs (b)(3)(i) and (ii) of this section); or
(ii) A transaction by, for, or on behalf of a foreign person, in which the original arrangements provided for in the terms of the transaction would not result in a training of a large AI model with potential capabilities that could be used in malicious cyber-enabled activity, but a development or update in the arrangements means the transaction now does or could result in the training of a large AI model with potential capabilities that could be used in malicious cyber-enabled activity (see the example in paragraph (b)(3)(iii) of this section).
(2) A model shall be considered to be a large AI model with potential capabilities that could be used in malicious cyber-enabled activity under the definition provided in § 7.301 if it meets the requirements laid out by the Department in interpretive rules published in the
(3)(i)
(ii)
(iii)
(iv)
(c)
(2)
(3)
(4)
(d)
(1)
(i)
(
(
(
(B) Address, which shall be:
(
(
(
(
(
(C) Means and source of payment for the account including:
(
(
(
(
(
(
(
(D) Email address.
(E) Telephonic contact information.
(F) IP addresses used for access or administration and the date and time of each such access or administrative action, related to ongoing verification of such foreign person's ownership or control of such Account.
(ii)
(B) Anticipated start date and completion date of the training run.
(C) Information on training practices, including the model of the primary AI used in the training run accelerators.
(D) Information on cybersecurity practices including:
(
(
(2)
(3)
(e)
(f)
(a)
(1) Engaging in, or conspiring to engage in, any conduct prohibited by the regulations issued in this part.
(2) Failing to submit reports, certifications, or recertifications, as appropriate, or failing to comply with terms of notices or orders provided by the Department, and as required by this subpart.
(3) Failing to implement or maintain CIPs as required by § 7.302, or continuing to transact with a foreign reseller that fails to implement or maintain a CIP as set forth in § 7.303.
(4) Providing IaaS products to a foreign person while failing to comply with any direction, determination, or condition issued under this part.
(5) Aiding, abetting, counseling, commanding, inducing, procuring, permitting, approving, or otherwise supporting any act prohibited by any direction, determination, or condition issued under this part.
(6) Attempting or soliciting a violation of any direction, determination, or condition issued under this part.
(7) Failing to implement any prohibition or suspension as set forth in § 7.308.
(8) Making a false or misleading representation, statement, notification, or certification, whether directly or indirectly through any other person, or falsifying or concealing any material fact to the Department in connection with compliance under this part.
(b)
(2) Any person who has been granted, or has had a foreign reseller granted, an exemption on the basis of their ADP shall notify the Department of any material change to the ADP or to the IaaS provider's business that may impact the ADP.
(3) For purposes of paragraph (a)(8) of this section, any representation, statement, or certification, such as (though not limited to) CIPs, written request for exemption, or written statements on ADPs made by any person shall be deemed to be continuing in effect until the person notifies the
(c)
(i) Notice of the penalty, including a written explanation of the penalized conduct specifying the laws and regulations allegedly violated and the amount of the proposed penalty, and notifying the recipient of a right to make a written petition within 30 calendar days as to why a penalty should not be imposed, shall be served on the notified party or parties.
(ii) The Secretary shall review any presentation and issue a final administrative decision within 30 calendar days of receipt of the petition.
(2)
(3)
(d)
(2) The criminal penalties provided in IEEPA are subject to adjustment pursuant to 18 U.S.C. 3571.
(e)
(a)
(b)