Agricultural Marketing Service
Farm Service Agency
Forest Service
National Agricultural Statistics Service
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Defense Acquisition Regulations System
Engineers Corps
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Land Management Bureau
National Park Service
Drug Enforcement Administration
Employment and Training Administration
Federal Contract Compliance Programs Office
Occupational Safety and Health Administration
Institute of Museum and Library Services
Federal Aviation Administration
Community Development Financial Institutions Fund
Financial Crimes Enforcement Network
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.
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Agricultural Marketing Service, USDA.
Final rule.
This final rule suspends the Federal marketing order regulating dried prunes produced in California (Order) effective August 1, 2023, through July 31, 2030. After operating for 18 years without handling regulations, the Prune Administrative Committee (Committee) recommended the Agricultural Marketing Service (AMS) indefinitely suspend the Order. After reviewing the Committee's recommendation, AMS determined that regulatory suspension with a sunset provision of seven years is appropriate. This suspension period extends through the end of the 2029-2030 crop year and provides industry sufficient time to assess whether the Order's reinstatement is beneficial. If no recommendation is made by the Committee to reinstate the Order by the end of the 2029-2030 crop year, AMS will proceed to terminate the Order.
This rule is effective March 25, 2024, except for amendatory instruction 3 staying part 993, which is effective August 1, 2023, through July 31, 2030, stay part 993.
Jeremy Sasselli, Marketing Specialist, or Barry Broadbent, Acting Chief, West Region Branch, Market Development Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, or Email:
Small businesses may request information on complying with this regulation by contacting Richard Lower, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-8085, or Email:
This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Agreement No. 110 and Marketing Order No. 993, both as amended (7 CFR part 993), regulating the handling of dried prunes produced in California. Part 993 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of producers and handlers of dried prunes operating within the area of production, and one public member.
AMS is issuing this final rule in conformance with Executive Orders 12866 and 13563, and 14094. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 reaffirms, supplements, and updates Executive Order 12866 and further directs agencies to solicit and consider input from a wide range of affected and interested parties through a variety of means. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.
This final rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions have Tribal implications. AMS has determined that this rule is unlikely to have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This final rule suspends the Order's regulatory provisions. The Committee recommended this action at its March 22, 2023, meeting. Section 993.90(a) of the Order provides that the Secretary shall terminate or suspend the operation of any or all of the provisions of the Order, whenever the Secretary finds that such provisions do not tend to effectuate the declared policy of the Act.
The Committee meets regularly to consider recommendations for modification, suspension, or termination of the Order, and such meetings are open to the public where interested persons may express their views at these meetings. AMS reviews Committee recommendations, including information provided by the Committee and from other available sources, and determines whether such recommendations would tend to effectuate the declared policy of the Act.
On May 27, 2005, following a recommendation from the Committee, AMS indefinitely suspended handling and reporting requirements under the Order, extended the temporary suspension of outgoing inspection and volume control regulations, and extended the temporary suspension of the Prune Import Regulation (70 FR 30610). Since 2005, the Committee has
On March 22, 2023, the Committee held a public meeting to consider the future of regulation under the Order. The Committee determined that the 2005 suspension of handling and volume regulations did not adversely impact the marketing of California prunes and that there is no value in funding the administrative duties prescribed under the Order when the handling regulations and reserve control provisions are not in effect. The Committee discussed terminating the Order but rejected the idea because its members believe the sector of industry is not yet ready to terminate, given the length of time and expense that would be required to establish a new marketing order should regulation again be deemed necessary in the future. In addition, several Committee members expressed the opinion that future market conditions may warrant regulation, particularly volume control, and urged the Committee not to terminate the Order at this time. After much deliberation, the Committee voted unanimously to indefinitely suspend the Order with the expectation that the Order would either remain indefinitely suspended or AMS would at a future time act to terminate the Order if no recommendation for reinstatement is submitted by industry. In the event of no such recommendation for reinstatement, the Committee would take the necessary steps to ensure an orderly and complete termination of the Order.
The Committee recommended to AMS the Order's suspension for an indefinite period to allow for the reinstatement of regulation to remain an option and to provide industry time to assess the market environment and other external factors affecting California prunes. Under the suspension, handlers would no longer be required to pay assessments. The Committee believes this cost savings benefits both small and large handlers, and that producers will also be relieved of some costs because such payments are often passed onto them by handlers.
After reviewing the Committee's recommendation and supporting materials, AMS included a sunset provision that if no recommendation is received by July 31, 2030, AMS will then issue a rule proposing termination of the Order. The Committee agrees that a suspension period of seven years is adequate time for the California prune industry to assess future market conditions and reestablishment of the Order, if warranted.
This final rule lifts the portions of the Order currently under suspension and suspends the entire Order for seven years, beginning in the 2023-2024 crop year, which started on August 1, 2023, and ending with the 2029-2030 crop year, which ends on July 31, 2030. If industry does not recommend reinstating the Order by the end of the suspension period, AMS will issue a proposal to terminate the Order.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this final rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 600 producers of dried prunes in the production area and 27 handlers subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts less than $3,500,000, and small agricultural service firms are defined as those whose annual receipts are less than $34,000,000 (13 CFR 121.201).
According to the National Agricultural Statistics Service (NASS), the average producer price for California dried prunes for the 2021 crop was $2,000 per ton. NASS further reported 2021 crop year production for California dried prunes was 74,000 tons. The estimated total 2021-22 crop year value of California dried prunes is $148,000,000 (74,000 tons times $2,000 per ton equals $148,000,000). Dividing the estimated total crop value by the estimated number of producers (600) yields an estimated average receipt per producer of $246,667, which is considerably lower than the $3,500,000 SBA small agricultural producer threshold.
In addition, according to USDA Market News data, the reported average terminal market price for 2022 for California dried prunes was $39.04 per carton. Dividing the average carton price by the 28-pound carton size yields an estimated price per pound of $1.39. ($39.04 average price divided by 28 pounds). Multiplying $1.39 per pound by 2,000 pounds yields $2,780 per ton, which, when multiplied by total estimated 2021 production of 74,000 tons, yields estimated total handler receipts of $205,720,000. Dividing this figure by the 27 regulated handlers yields estimated average annual handler receipts of $7,619,259, well below the $34 million SBA threshold for small agricultural service firms. Therefore, using the above data, the majority of producers and handlers of California dried prunes may be classified as small entities.
This final rule suspends all provisions of the Order starting August 1, 2023, through July 31, 2030. On March 22, 2023, the Committee voted unanimously to indefinitely suspend the Order after determining that the 2005 suspension of handling regulations, volume control and reporting requirements did not negatively impact the marketing of California prunes and that the costs to continue the Order outweighs its benefit to industry. The Committee believes the suspension will provide a cost savings to large and small handlers and producers.
After reviewing the Committee's recommendation and other supporting material, AMS included a sunset provision that if no recommendation for reinstatement is received during the suspension period, AMS will proceed to terminate the Order.
This action suspends the Federal marketing order regulating dried prunes produced in California though July 31, 2030. Authority for this action is provided in section 993.90(a) of the Order.
Committee meetings are widely publicized throughout the production area. The California dried prune industry and all interested persons are invited to attend the meetings and participate in Committee deliberations on all issues. Similarly, the March 22, 2023, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178, Vegetable Crops. OMB's three-year approval of the forms in the Vegetable Crops package expires March 31, 2024. AMS's submission of the renewal package prior to its expiration will retain prune forms but will drawdown the information collection burden to
This final rule does not impose any additional reporting or recordkeeping requirements on either small or large California dried prune handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.
A proposed rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendations submitted by the Committee and other available information, AMS has determined that this rule tends to effectuate the declared policy of the Act.
Marketing agreements, Plums, Prunes, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Agricultural Marketing Service amends 7 CFR part 993 as follows:
7 U.S.C. 601-674.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Issuance of final airworthiness criteria.
The FAA announces the airworthiness criteria for the Blackshape S.p.A., Model BK160-200 Very Light Airplane (VLA). This document sets forth the airworthiness criteria that the FAA finds to be appropriate and applicable for the VLA design.
These airworthiness criteria are effective February 23, 2024.
Tara Fitzgerald, Certification Coordination Section, AIR-613, Certification Engagement Branch, Policy and Standards Division, Aircraft Certification Service, Federal Aviation Administration; telephone 781-238-7130; email
The European Union Aviation Safety Agency (EASA) submitted an application to the FAA, on behalf of Blackshape S.p.A., on February 10, 2020, for a type certificate for the Model BK160-200 VLA. Under 14 CFR 21.17(b), VLA are a special class of aircraft that utilize airworthiness criteria the FAA finds to be appropriate to the specific type design.
The BK160-200 is a single reciprocating engine airplane (Lycoming IO-320-D1B with constant speed Hartzell propeller), full carbon composite low wing design, with a retractable tri-cycle landing gear. It has conventional control systems (elevator, aileron, rudder, flaps, and longitudinal trim) and provides seats for two persons in a tandem seat configuration with a maximum takeoff gross weight (MTGW) of 850 kilograms (kg) (1,874 pounds). It also has advanced avionic displays, a stall speed of 50 knots, a rechargeable lithium-ion battery, and will perform night visual flight rules (VFR) operations.
The FAA issued a notice of proposed airworthiness criteria for the Blackshape
These airworthiness criteria, established under the provisions of § 21.17(b), are applicable to the Blackshape S.p.A. Model BK160-200 VLA. Should Blackshape S.p.A. apply at a later date for a change to the type certificate to include another model, these airworthiness criteria would apply to that model as well, provided the FAA finds them appropriate in accordance with the requirements of subpart D to part 21.
This action affects only the airworthiness criteria for the Blackshape S.p.A. Model BK160-200 VLA. It is not a rule of general applicability.
The authority citation for these airworthiness criteria is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Pursuant to the authority delegated to me by the Administrator, the following airworthiness criteria are issued as part of the type certification basis for the Blackshape S.p.A. Model BK160-200 VLA. The FAA finds these criteria to be appropriate for the aircraft and applicable to the specific type design and provide an equivalent level of safety to existing airworthiness standards.
EASA Certification Specifications (CS) for Very Light Aeroplanes CS-VLA, Amendment 1, dated March 5, 2009, with additional requirements identified in “Policy for Type Certification of Very Light Airplanes as a Special Class of Aircraft” (88 FR 70344, October 11, 2023) for Advanced Avionic Displays, Night-VFR Operations, Increased Maximum Certificated Takeoff Weight and Increased Stall Speed, and Rechargeable Lithium Ion Battery.
Bureau of Industry and Security, Commerce.
Final rule.
With this final rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR), which it maintains, by revising license requirements for certain cameras, systems, and related components. These revisions will better align controls with technological and commercial developments, such as the items' global commercial availability, while recognizing the cooperative strategic relationship the United States has with our closest allies. In addition to these changes, BIS is adding controls on certain cameras that are not already controlled by either export control classification number (ECCN) 6A003 or 6A203. These new controls are detailed under new ECCN 6A293, which is a classification for temporary controls for which BIS is seeking multilateral agreement.
This rule is effective March 8, 2024.
For questions on the part 744 changes, contact John Varesi at (202) 482-1114 or
For questions on the part 774 changes, contact Steve Clagett at (202) 482-1641 or
BIS is amending the EAR (15 CFR parts 730-774) by revising the license requirements for cameras in part 744 and by adding an ECCN that controls additional cameras to part 774. Background regarding these changes is detailed below.
This rule revises paragraph (a)(1) to § 744.9 of the EAR. Prior to the effective date of this rule, paragraph (a)(1) was divided into (a)(1)(i) and (a)(1)(ii). To help ensure the restrictions in this paragraph are easily understood, this rule restructures the paragraph by adding (a)(1)(iii). The introductory text of (a)(1) will retain the same background information regarding applicable reasons for control, but the specific items discussed will be divided among (a)(1)(i) through (iii).
Paragraph (a)(1)(i) will pertain to commodities controlled by ECCN 6A003.a.3, 6A003.a.4, or 6A003.a.6 that will be or are intended to be used by a `military end-user,' as defined in paragraph (d) of § 744.9, in all destinations except Canada. This is a structural change to the paragraph only; the policy regarding these items remains the same. Similarly, this rule does not remove the license requirement forth in new paragraph § 744.9(a)(1)(iii) for cameras, systems and related components being exported for incorporation into foreign “military commodities” specified in ECCN 0A919.
Paragraph (a)(1)(ii) will revise the policy pertaining to the original items (other than those controlled in 6A003.a.3, 6A003.a.4, and 6A003.a.6) by adding the phrase “in all destinations except countries specified in Country Group A:1.” This change will thereby more specifically focus the license requirement for the export, reexport, and transfer (in-country) on certain cameras, systems, and related components when destined for some of our closest allies. With this revision, BIS no longer requires a license for the cameras, systems, and related components described in ECCNs 0A504 (incorporating commodities controlled by ECCNs 6A002 or 6A003, or commodities controlled by 6A993.a that meet the criterion of Note 3.a to 6A003.b.4), 6A002, 6A003 (other than 6A003.a.3, 6A003.a.4, and 6A003.a.6), or 6A993.a (having a maximum frame rate equal to or less than 9 Hz and thus meeting the criteria of Note 3.a to 6A003.b.4), or 8A002.d when the items are intended to be used by a military end user in Country Group A:1 countries. Prior to publication of this rule, a license was required for such transactions to all destinations except Canada.
With the effective date of this rule, focal plane arrays will continue to require a license to countries specified in Country Groups A:1 under other provisions of the EAR; these items are controlled for Regional Stability (RS) reasons to countries specified in RS Column 1 on the Commerce Country Chart in supplement no. 1 to part 738 of the EAR, as well as other parts of the EAR (
Portions of the original national security rationale for § 744.9(a)(1) are no longer relevant. In 2009, when the license requirement for ECCN 6A003.b.4.b items was first imposed, BIS sought visibility into their use by military end users. A 2016 revision to § 744.9 expanded the license requirements to all items listed under ECCNs 6A002 and 6A003, and items listed under ECCN 6A993.a further reflected the interest in reviewing these transactions to military end users. However, the number of approved applications for these items going to County Group A:1 countries by BIS and the global commercial availability of these items warrants the removal of this license requirement.
Specifically, license data since 2009 demonstrates that these items, when destined for Country Group A:1 countries, do not pose a national security risk to the United States. As a practical matter, BIS, through the interagency license review process, has approved thousands of license applications for these items to Country Group A:1 countries over the past decade. Therefore, BIS has determined that U.S. Government and industry resources could be more effectively deployed reviewing transactions posing potentially higher risks.
As stated above, the items controlled by § 744.9 have become mainstream commercial products. In the aftermath of the COVID-19 global pandemic, one of the most popular uses of these cameras is to determine if a person has a fever before entering a building. However, prior to the publication of this rule, the export of these items under § 744.9 for a similar purpose by a military end user in any country would require a license. BIS determined this type of transaction no longer warrants review when destined to close allies. Given the high number of approvals and the absence of denials, the growing burden the regulations have placed on industry, and the licensing burden placed on BIS itself, BIS is removing the license requirements for these items when going to military end users in Country Group A:1 countries.
BIS also notes the increased commercial availability of the items listed in § 744.9. At the time § 744.9 was first published, the commercial market for the items listed in the section was relatively new and U.S. exports of these items were not heavily impacted by the regulatory requirement. Since the 2016 revision, the global commercial market for these items has continued to expand. These items are now manufactured and widely available outside the United States, including in China. The combined impact of the expanded controls and growing global manufacturing of the items has resulted in restricted exports of U.S.-origin products and increased competition from non-U.S.-origin products. In many cases, the manufacturers who made these sales are located in countries outside of the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, such as China. This rule ensures that U.S. companies are operating on a level playing field with foreign competitors when selling to end users in County Group A:1 countries.
As stated above, this final rule adds certain cameras under ECCN 6A293 on the Commerce Control List (CCL), supplement no. 1 to part 774. While ECCNs 6A003 and 6A203 control specified cameras, this new control will capture cameras that are not controlled by either ECCNs 6A003 or 6A203 and have the following characteristics: (1) minimum exposure time of 1 microsecond or faster; and (2) a throughput of 13.43 Giga Pixels per second or greater when taken at 205,000 frames per second. The control also includes a technical note with a formula for throughput and a note that describes some of the ways these cameras may be referenced by the public in non-technical terms. ECCN 6A293 has NP Column 1 and Anti-Terrorism (AT) Column 1 reasons for control; these reasons for control are detailed in part 742 of the EAR. ECCN 6A293 is not eligible for License Exception STA. As conforming changes, this rule updates the related controls in ECCNs 6A003 and 6A203 to include ECCN 6A293; this rule also revises § 740.20(b)(2)(x) to include the limitation on STA for ECCN 6A293.
ECCNs 6A003 and 6A203 control certain high-speed cameras that are on the Nuclear Suppliers Group (NSG) Dual Use Annex. The NSG is a multilateral regime of nuclear supplier countries seeking to address the non-proliferation of nuclear weapons through export controls. Following a technical analysis of high-speed camera systems, the U.S. Government determined that additional cameras, with specifications differing from those in ECCNs 6A003 and 6A203, have similar applications of proliferation concern. Accordingly, the new controls of these cameras under ECCN 6A293 are warranted. Cameras controlled in this new ECCN may be exported to NSG participating countries without a license, except to Russia, Belarus, and China. New ECCN 6A293 will allow implementation of these warranted temporary controls while BIS seeks multilateral agreement.
On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA), 50 U.S.C. 4801-4852. ECRA, as amended, provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated a “significant regulatory action,” under Executive Order 12866.
2. Notwithstanding any other provision of law, no person may be required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with federalism implications as that
4. Pursuant to Section 1762 of ECRA (50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (APA) (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation and delay in effective date.
5. Because neither the Administrative Procedure Act nor any other law requires that notice of proposed rulemaking and an opportunity for public comment be given for this rule, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Exports, Reporting and recordkeeping requirements, Terrorism.
Exports, Reporting and recordkeeping requirements.
Accordingly, parts 740, 744, and 774 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:
50 U.S.C. 4801-4852; 50 U.S.C. 4601
(b) * * *
(2) * * *
(x) License Exception STA may not be used for items controlled by ECCN 6A002; 6A293; 6D002 (software “specially designed” for the “use” of commodities controlled under 6A002.b); 6D003.c; 6D991 (software “specially designed” for the “development,” “production,” or “use” of commodities controlled under 6A002 or 6A003); 6E001 (“technology” for the “development” of commodities controlled under ECCN 6A002 or 6A003); or 6E002 “technology” (for the “production” of commodities controlled under ECCN 6A002 or 6A003).
50 U.S.C. 4801-4852; 50 U.S.C. 4601
(a) * * *
(1) In addition to the applicable license requirements for nuclear nonproliferation, national security, regional stability, anti-terrorism, and United Nations embargo reasons in §§ 742.3, 742.4, 742.6, 742.8, 746.1(b), and 746.3 of the EAR, a license is required pursuant to this section for specific exports, reexports, or transfers (in-country) if at the time of export, reexport, or transfer, the exporter, reexporter, or transferor knows or is informed that:
(i) Commodities controlled by ECCN 6A003.a.3, 6A003.a.4, or 6A003.a.6 will be or are intended to be used by a `military end-user,' as defined in paragraph (d) of this section in all destinations except Canada.
(ii) Commodities described in ECCNs 0A504 (incorporating commodities controlled by ECCNs 6A002 or 6A003, or commodities controlled by 6A993.a that meet the criterion of Note 3.a to 6A003.b.4), 6A002, 6A003 (other than 6A003.a.3, 6A003.a.4, and 6A003.a.6), or 6A993.a (having a maximum frame rate equal to or less than 9 Hz and thus meeting the criteria of Note 3.a to 6A003.b.4), or 8A002.d will be or are intended to be used by a `military end-user,' as defined in paragraph (d) of this section in all destinations except those specified in Country Group A:1.
(iii) Commodities described in ECCNs 0A504 (incorporating commodities controlled by ECCNs 6A002 or 6A003, or commodities controlled by 6A993.a that meet the criterion of Note 3.a to 6A003.b.4), 6A002, 6A003, or 6A993.a (having a maximum frame rate equal to or less than 9 Hz and thus meeting the criteria of Note 3.a to 6A003.b.4), or 8A002.d will be or are intended to be incorporated into a “military commodity” controlled by ECCN 0A919 in all destinations except Canada.
50 U.S.C. 4801-4852; 50 U.S.C. 4601
The revisions and addition read as follows:
a. Instrumentation cameras and “specially designed” “components” therefor, as follows:
a.1. [Reserved]
a.2. [Reserved]
a.3. Electronic streak cameras having temporal resolution better than 50 ns;
a.4. Electronic framing cameras having a speed exceeding 1,000,000 frames/s;
a.5. Electronic cameras having all of the following:
a.5.a. An electronic shutter speed (gating capability) of less than 1µs per full frame;
a.5.b. A read out time allowing a framing rate of more than 125 full frames per second;
a.6. Plug-ins having all of the following characteristics:
a.6.a. “Specially designed” for instrumentation cameras which have modular structures and that are controlled by 6A003.a;
a.6.b. Enabling these cameras to meet the characteristics specified by 6A003.a.3, 6A003.a.4 or 6A003.a.5, according to the manufacturer's specifications;
b. Imaging cameras as follows:
b.1. Video cameras incorporating solid state sensors, having a peak response in the wavelength range exceeding 10 nm, but not exceeding 30,000 nm and having all of the following:
b.1.a. Having any of the following:
b.1.a.1. More than 4 x 10
b.1.a.2. More than 4 x 10
b.1.a.3. More than 12 x 10
b.1.b. Having any of the following:
b.1.b.1. Optical mirrors controlled by 6A004.a.;
b.1.b.2. Optical control equipment controlled by 6A004.d.;
b.1.b.3. The capability for annotating internally generated `camera tracking data';
1. For the purposes of 6A003.b.1, digital video cameras should be evaluated by the maximum number of “active pixels” used for capturing moving images.
2. For the purposes of 6A003.b.1.b.3, `camera tracking data' is the information necessary to define camera line of sight orientation with respect to the earth. This includes: (1) the horizontal angle the camera line of sight makes with respect to the earth's magnetic field direction and; (2) the vertical angle between the camera line of sight and the earth's horizon.
b.2. Scanning cameras and scanning camera systems, having all of the following:
b.2.a. A peak response in the wavelength range exceeding 10 nm, but not exceeding 30,000 nm;
b.2.b. Linear detector arrays with more than 8,192 elements per array;
b.2.c. Mechanical scanning in one direction;
a. Industrial or civilian photocopiers;
b. Image scanners “specially designed” for civil, stationary, close proximity scanning applications (
c. Medical equipment.
b.3. Imaging cameras incorporating image intensifier tubes having the characteristics listed in 6A002.a.2.a or 6A002.a.2.b;
b.4. Imaging cameras incorporating “focal plane arrays” having any of the following:
b.4.a. Incorporating “focal plane arrays” controlled by 6A002.a.3.a to 6A002.a.3.e;
b.4.b. Incorporating “focal plane arrays” controlled by 6A002.a.3.f;
b.4.c. Incorporating “focal plane arrays” controlled by 6A002.a.3.g;
a. Industrial or civilian intrusion alarm, traffic or industrial movement control or counting systems;
b. Industrial equipment used for inspection or monitoring of heat flows in buildings, equipment, or industrial processes;
c. Industrial equipment used for inspection, sorting or analysis of the properties of materials;
d. Equipment “specially designed” for laboratory use;
e. Medical equipment.
a. A maximum frame rate equal to or less than 9 Hz;
b. Having all of the following:
1. Having a minimum horizontal or vertical `Instantaneous-Field-of-View (IFOV)' of at least 2 mrad (milliradians);
2. Incorporating a fixed focal-length lens that is not designed to be removed;
3. Not incorporating a `direct view' display;
4. Having any of the following:
a. No facility to obtain a viewable image of the detected field-of-view;
b. The camera is designed for a single kind of application and designed not to be user modified;
`Horizontal IFOV' = horizontal Field-of-View (FOV)/number of horizontal detector elements
`Vertical IFOV'= vertical Field-of-View (FOV)/number of vertical detector elements.
c. The camera is “specially designed” for installation into a civilian passenger land vehicle and having all of the following:
1. The placement and configuration of the camera within the vehicle are solely to assist the driver in the safe operation of the vehicle;
2. Is operable only when installed in any of the following:
a. The civilian passenger land vehicle for which it was intended and the vehicle weighs less than 4,500 kg (gross vehicle weight);
b. A “specially designed”, authorized maintenance test facility;
3. Incorporates an active mechanism that forces the camera not to function when it is removed from the vehicle for which it was intended.
a. Having all of the following:
1. Where the camera is “specially designed” for installation as an integrated component into indoor and wall-plug-operated systems or equipment, limited by design for a single kind of application, as follows:
a. Industrial process monitoring, quality control, or analysis of the properties of materials;
b. Laboratory equipment “specially designed” for scientific research;
c. Medical equipment;
d. Financial fraud detection equipment;
2. Is only operable when installed in any of the following:
a. The system(s) or equipment for which it was intended;
b. A “specially designed,” authorized maintenance facility;
3. Incorporates an active mechanism that forces the camera not to function when it is removed from the system(s) or equipment for which it was intended;
b. Where the camera is “specially designed” for installation into a civilian passenger land vehicle or passenger and vehicle ferries and having all of the following:
1. The placement and configuration of the camera within the vehicle or ferry are solely to assist the driver or operator in the safe operation of the vehicle or ferry;
2. Is only operable when installed in any of the following:
a. The civilian passenger land vehicle for which it was intended and the vehicle weighs less than 4,500 kg (gross vehicle weight);
b. The passenger and vehicle ferry for which it was intended and having a length overall (LOA) 65 m or greater;
c. A “specially designed”, authorized maintenance test facility;
3. Incorporates an active mechanism that forces the camera not to function when it is removed from the vehicle for which it was intended;
c. Limited by design to have a maximum “radiant sensitivity” of 10 mA/W or less for wavelengths exceeding 760 nm, having all of the following:
b.5. Imaging cameras incorporating solid-state detectors specified by 6A002.a.1.
a. Streak cameras and “specially designed” components therefor, as follows:
a.1. Streak cameras with writing speeds greater than 0.5 mm/µs;
a.2. Electronic streak cameras capable of 50 ns or less time resolution;
a.3. Streak tubes for cameras described in 6A203.a.2;
a.4. Plug-ins, “specially designed” for use with streak cameras having modular structures, that enable the performance characteristics described in 6A203.a.1 or .a.2;
a.5. Synchronizing electronics units, and rotor assemblies consisting of turbines, mirrors and bearings, that are “specially designed” for cameras described in 6A203.a.1.
b. Framing cameras and “specially designed” components therefor, as follows:
b.1. Framing cameras with recording rates greater than 225,000 frames per second;
b.2. Framing cameras capable of 50 ns or less frame exposure time;
b.3. Framing tubes, and solid-state imaging devices, that have a fast image gating (shutter) time of 50 ns or less and are “specially designed” for cameras described in 6A203.b.1 or .b.2;
b.4. Plug-ins, “specially designed” for use with framing cameras having modular structures, that enable the performance characteristics described in 6A203.b.1 or .b.2;
b.5. Synchronizing electronic units, and rotor assemblies consisting of turbines, mirrors, and bearings, that are “specially designed” for cameras described in 6A203.b.1 or .b.2.
c. Solid-state or electron tube cameras and “specially designed” components therefor, as follows:
c.1. Solid-state cameras, or electron tube cameras, with a fast image gating (shutter) time of 50 ns or less;
c.2. Solid-state imaging devices, and image intensifiers tubes, that have a fast image gating (shutter) time of 50 ns or less and are “specially designed” for cameras described in 6A203.c.1;
c.3. Electro-optical shuttering devices (Kerr or Pockels cells) with a fast image gating (shutter) time of 50 ns or less;
c.4. Plug-ins, “specially designed” for use with cameras having modular structures, that enable the performance characteristics described in 6A203.c.1.
d. Radiation-hardened TV cameras, or lenses therefor, “specially designed” or rated as radiation hardened to withstand a total radiation dose greater than 5 × 10
a. Minimum exposure time of 1 microsecond or faster, and
b. a throughput of 13.43 Giga Pixels/s or greater when taken at 205,000 frames/s.
Employment and Training Administration (ETA), Labor.
Final rule.
The Workforce Innovation and Opportunity Act (WIOA) establishes six primary indicators of performance for certain WIOA-authorized programs and defines five of the six performance indicators. The U.S. Departments of Labor and Education (the Departments) published a final rule under RIN 1205-AC01 to define the sixth performance indicator—effectiveness in serving employers—as Retention with Same Employer into the implementing regulations for the six WIOA core programs. In this related final rule, the Department of Labor (DOL or the Department) is incorporating the same definition of the ESE performance indicator into regulations for the following WIOA title I non-core programs: the Indian and Native American (INA), the Job Corps, and the YouthBuild program. This final rule makes two changes from the notice of proposed rulemaking (NPRM) for the WIOA title I non-core programs: the final rule permits the use of supplemental wage information in the definition of the effectiveness in serving employers performance indicator, and it specifies that the definition is measuring retention in unsubsidized employment.
This final rule is effective March 25, 2024.
Michelle Paczynski, Administrator, Office of Policy Development and Research, U.S. Department of Labor, Employment and Training Administration, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210, Telephone: 202-693-3700 (voice) (this is not a toll-free number), 1-877-872-5627, or 1-800-326-2577 (telecommunications device for the deaf).
President Barack Obama signed WIOA into law on July 22, 2014. WIOA superseded the Workforce Investment Act of 1998 and amended the Wagner-Peyser Act and the Rehabilitation Act of 1973. In WIOA sec. 503(f), Congress directed the Department to issue regulations implementing statutory requirements to ensure that the public workforce system operates as a comprehensive, integrated, and streamlined system to provide pathways to prosperity and continuously improve the quality and performance of its services to job seekers and employers. Additionally, WIOA sec. 189(a) permits the Secretary of Labor to prescribe rules and regulations to carry out title I of WIOA.
The law includes a common performance accountability system, consisting of six statutory primary indicators of performance, applicable to all WIOA core programs: adult, dislocated worker, and youth programs under title I of WIOA; the Adult Education and Family Literacy Act (AEFLA) program under title II; the Employment Service (ES) program authorized under the Wagner-Peyser Act as amended by WIOA title III; and the Vocational Rehabilitation (VR) program authorized under title I of the Rehabilitation Act as amended by WIOA title IV. WIOA also requires that the six statutory primary indicators of performance apply to four WIOA title I, DOL-administered non-core programs: INA programs (WIOA sec. 166(e)(5)), the NFJP (WIOA sec. 167(c)(2)(C)), Job Corps (WIOA sec. 159(c)(1)), and YouthBuild (WIOA sec. 171(f)(1)) (hereinafter “title I non-core programs”).
Although not mandated by WIOA, the Department requires several other DOL-administered WIOA title I non-core programs and projects also to report on the WIOA sec. 116 primary indicators of performance. For example, the Department requires Reentry Employment Opportunities (REO) grants (authorized under WIOA sec.169 and annual appropriation acts) to report on the sec. 116 primary indicators of performance. The Department anticipates applying the definition of the effectiveness in serving employers performance indicator adopted in this final rule to those programs.
In WIOA, Congress directed the Department to issue regulations implementing statutory requirements to ensure that the public workforce system operates as a comprehensive, integrated, and streamlined system in order to provide pathways to prosperity and continuously improve the quality and performance of its services to job seekers and employers. On August 19, 2016, the Department issued the
The WIOA statute defines five of the six performance indicators. However, the statute did not specify how the sixth performance indicator, effectiveness in serving employers, should be measured. Instead, WIOA directed the Departments to develop a definition for the effectiveness in serving employers performance indicator (WIOA sec. 116(b)(2)(A)(iv)).
That pilot, as well as a study of the results from the pilot, are now complete. The definition in this final rule applies to both WIOA core programs—which are addressed in the concurrently published
WIOA secs. 159(c)(1) (Job Corps), 166(e)(5) (INA), 167(c)(2)(C) (NFJP), and 171(f)(1) (YouthBuild) specify that performance for these title I non-core programs must be assessed using the primary indicators of performance in sec. 116 of WIOA. On September 14, 2022, the Departments published a joint NPRM in which the Departments proposed to codify the approach for evaluating a WIOA core program's effectiveness in serving employers (87 FR 56318) (Joint WIOA Effectiveness in Serving Employers NPRM). On the same day, DOL published an NPRM in which the Department proposed to codify the approach for evaluating a WIOA title I non-core program's effectiveness in serving employers (87 FR 56340) (hereinafter referred to as the NPRM).
This final rule implements Retention with the Same Employer as the definition for effectiveness in serving employers for WIOA title I non-core programs, as proposed in the NPRM, with two changes from the NPRM made in response to comments received on the Joint WIOA Effectiveness in Serving
Specifically, in the Joint WIOA Effectiveness in Serving Employers Final Rule the Departments determined that supplemental wage information plays a vital role when wage records are either unavailable for a participant or difficult to obtain. For this reason, the Departments revised § 677.155(a)(1)(vi) and (c)(6) in the Joint WIOA Effectiveness in Serving Employers Final Rule to remove the requirement that wage records be used to document a participant's employment status for purposes of the effectiveness in serving employers performance indicator, thereby allowing for the use of supplemental wage data. Second, the Joint WIOA Effectiveness in Serving Employers Final Rule definition for effectiveness in serving employers adds the requirement that the participant must have been in “unsubsidized employment” in the second and fourth quarters after exit. The reasons for changing the Joint WIOA Effectiveness in Serving Employers Final Rule text also apply to the WIOA title I non-core programs. Therefore, the changes to the § 677.155 regulatory text have been carried over to this final rule at revised § 684.460(a)(6) for INA Youth, revised § 684.620(a)(6) for INA, revised § 686.1010(f) for Job Corps, and revised § 688.400(f) for YouthBuild.
Section 677.155 sets forth the primary indicators by which the performance of core programs is evaluated, as required by WIOA sec. 116(b)(2)(A)(i). These primary indicators of performance apply to the core programs described in WIOA sec. 116(b)(3)(A)(ii), as well as to the title I non-core programs. These primary indicators of performance create a common language shared across the programs' performance metrics, support system alignment, enhance programmatic decision making, and help participants make informed decisions related to training. Sections 116(b)(2)(A)(i)(VI) and (b)(2)(A)(iv) of WIOA require the Secretaries of Labor and Education to jointly develop and establish the sixth performance indicator—effectiveness in serving employers—after consultation with representatives of State and local governments, business and industry, and other interested parties.
In the Joint WIOA Effectiveness in Serving Employers NPRM, the Departments proposed to define the effectiveness in serving employers performance indicator in § 677.155(a)(1)(vi) as the percentage of participants with wage records who exited a program and were employed by the same employer in the second and fourth quarters after exit and specified that this is a statewide indicator reported by one core program on behalf of all six core programs in the State. In the NPRM, the Department proposed this same language for the WIOA title I non-core programs; however, as proposed in the NPRM, the statewide aspect of the proposed definition in the Joint WIOA Effectiveness in Serving Employers NPRM would not apply to WIOA title I non-core programs. The Department sought comment on how the proposed definition of effectiveness in serving employers performance indicator would impact the WIOA title I non-core programs.
Prior to selecting this single approach to propose, the Departments selected three approaches for measuring effectiveness in serving employers to be piloted by WIOA core programs. The Departments assessed the use of each of the three approaches with a focus on minimizing employer burden and using information that would provide an accurate picture of how well the public workforce system serves employers.
Under the guidance of the Departments,
The Departments assessed the pilot through a DOL contract that resulted in a final report titled
Although the four WIOA title I non-core programs discussed in this rule—Job Corps, INA, NFJP, and YouthBuild—did not participate in the core program pilot, these title I non-core program fund recipients (
Under this final rule, the WIOA title I non-core programs will be subject to the same data collection and reporting requirements as they have been under TEGL No. 14-18. The TEGL specified that, starting in Program Year (PY) 2018 (or the point at which wage matching data becomes available to the program), the Job Corps, INA, NFJP, and YouthBuild programs were to begin tracking the effectiveness in serving employers performance indicator using the Retention with the Same Employer definition.
Consistent with related guidance issued in PYs 2016, 2017, and 2018,
By codifying the use of Retention with the Same Employer for this indicator, this final rule requires programs to use already-collected data and the existing performance reporting system, WIPS. Thus, programs will not have additional burden to collect and report on any other type of additional data to calculate and report results for other possible approaches to defining this performance indicator.
Finally, TEGL No. 14-18 also put forth program-specific timelines for implementation of the WIOA reporting requirements factoring in data lags associated with the performance indicator as well as known implementation actions such as case management system development, which are further detailed in each program-specific section in the section-by-section discussion of the final rule below (Section II).
In summary, for the Job Corps, INA, and YouthBuild programs, this final rule codifies in regulation the existing practice of reporting Retention with the Same Employer in order to measure a program's effectiveness in serving employers and adds the option for WIOA title I grantees and Job Corps contractors to choose to provide supplemental wage information on the measure. The Department will use this same definition for the effectiveness in serving employers performance indicator for the NFJP program. Existing guidance in Appendix VI of TEGL No. 14-18 addresses the use of supplemental wage information for WIOA core performance indicators, so the use of supplemental wage information will not be new to the regulated community. The Department intends to issue updated guidance regarding use of supplemental wage information specifically for the effectiveness in serving employers performance indicator for these programs.
In the NPRM, the Department solicited comments to better inform implementation of the effectiveness in serving employers performance indicator for these programs, particularly challenges that they might face in implementing this proposed definition of the effectiveness in serving employers performance indicator; challenges they have faced under TEGL No. 14-18; and other definitions that might be more suitable.
The NPRM invited written comments from the public concerning the proposed rule through November 14, 2022. No commenters requested an extension of the comment period. The comments received may be viewed by entering docket number ETA-2022-0005 at
The Department received 18 comments in the docket for this rulemaking. Of these 18 comments, 10 were unique, 6 were form letter copies, 1 was a duplicate, and 1 was outside the scope of the proposed rule. Public sector commenters included State and local government agencies and one-stop operators. Non-profit sector commenters included professional associations and career or employment services providers. The Department also received comments from anonymous commenters.
This section of the final rule provides a general overview of the comments received. Section II (Section-by-Section Discussion of this Final Rule) describes the comments in more detail and provides the Department's responses to them.
Some commenters expressed overall concerns about and opposed the proposed Retention with the Same Employer definition of the effectiveness in serving employers performance indicator. Other commenters suggested that the Department consider other potential approaches for defining the effectiveness in serving employers performance indicator. The Department's responses to concerns about Retention with the Same Employer definition and suggestions for alternative are discussed below in Section II.A.
With regard to impact or concerns about the four specific WIOA title I non-core programs subject to this rule, the Department received a total of three comments. The Department did not receive any comments on the impacts of the proposed Retention with the Same Employer effectiveness in serving employers definition on three of the four programs: NFJP, Job Corps, or YouthBuild programs. The proposed regulatory changes for the INA programs received one comment submission that expressed concerns about reporting burden for INA programs under the proposed rule and requested that the Department consult with the WIOA sec. 166 programs, the Native American Employment and Training Council (NAETC), and Tribal officials to develop and establish the effectiveness in serving employers performance indicator. Another commenter discussed the impact of the proposed rule on non-core WIOA programs providing employment services to two specific target demographics: justice-involved individuals and older workers. The Department's responses to the INA-related comments are discussed below in Section II.B and responses to comments for programs serving justice-
Section II of this final rule provides the Department's responses to comments and explains the two changes in the final rule from the proposed rule. Section II.A discusses comments received on the proposed definition for and implementation of the effectiveness in serving employers performance indicator for the WIOA title I non-core programs. Sections II.B, II.C, II.D, and II.E address comments received on the proposed changes to ETA's INA program regulations (20 CFR part 684), NFJP regulations (20 CFR part 685), Job Corps program regulations (20 CFR part 686), and YouthBuild program regulations (20 CFR part 688) to adopt Retention with the Same Employer as the definition for the effectiveness in serving employers performance indicator, respectively. Section II.F discusses comments received relating to impacts that this final rule could have on other non-core WIOA programs for which the Department has applied the WIOA sec. 116 primary indicators of performance.
The Department notes that individuals who move to a new job with the same employer would be considered a successfully retained participant under this indicator because the indicator measures retention “with the same employer” in the second and fourth quarters; there is no requirement the participant remain in the same employment status (
The Department acknowledges that individuals may leave for higher wages with a new employer, but WIOA title I non-core grantees and program operators can seek to address these concerns in a variety of ways that are beneficial to both the employer and the participant, such as striving to find quality job placements or working with employers to develop career pathways and good jobs that more effectively incentivize participants they have hired to maintain their employment with the same employer. Despite these concerns, the Department is adopting the Retention with the Same Employer definition of the indicator for multiple reasons, specifically because it: is the least burdensome since it uses data elements reported by WIOA title I non-core grantees and Job Corps contractors for other performance indicators; has a stable data collection mechanism in that the requisite data are already reported via an OMB-approved information collection request; aligns with other employment performance indicators in that it uses similar terminology and data elements; and demonstrates maintained relationships between employers and employees, thereby demonstrating that the services provided by the WIOA programs not only meet the long-term needs of the participants but also the needs of employers in each State. The Department gives particular weight to reporting burden, especially for the competitive grantees with generally less reporting capacity than States, in order to allow WIOA title I non-core grantees and Job Corps contractors to focus on services and improve the accuracy and completeness of the data.
Another commenter noted Retention with the Same Employer does not speak to “acuity” of a job placement (
One commenter asserted that the proposed measure is not a good indicator of WIOA program performance because it is significantly impacted by employers' choices as to wages, working conditions, and workplace culture, over which WIOA programs have little control.
Another commenter expressed concern that Retention with the Same Employer would not capture all services provided to employers by workforce systems; in particular, services to employers that are not attached to WIOA-funded job seekers.
Regarding the commenter's concern that it would be inappropriate to only measure success for WIOA-enrolled customers, the Department notes that the services delivered by WIOA-funded program operators routinely benefit the broader employer community by increasing basic skills of the candidate pool, enhancing free job posting and search tools, and preparing workplaces and job seekers with disabilities for successful employment. Program participants who receive services that successfully prepare them to fill jobs that meet employers' needs benefit all the employers in the local economy, regardless of whether a specific employer directly received services from a grantee. Therefore, the Department has determined that excluding employers that have not received a service from a grantee under a non-core program or a Job Corps contractor within the reporting period is not an appropriate holistic measure of the workforce system's impact on Retention with the Same Employer.
In fact, such an approach would be contrary to the purpose of the performance measure itself. For example, it would be possible for a participant to obtain employment as a result of services received under a WIOA title I non-core program, but change jobs within the first quarter after exiting the program to a new job where the participant remained for at least a year. In this final rule, the Department defines the effectiveness in serving employers performance indicator as the participant's Retention with the Same Employer in the second and fourth quarters after exiting the program. In other words, in this example, the employer that will be measured for purposes of this indicator for this particular participant is not the same employer that received services from a WIOA title I non-core program and initially hired the participant. Regarding concerns that the Retention with the Same Employer indicator does not measure the acuity of the WIOA participant's job placement, the Department acknowledges that this metric is one of many aspects of effectiveness in serving employers but believes that retention is an important aspect to measure as stated by employer representatives during stakeholder engagements. The Department encourages grantees and contractors under WIOA title I non-core programs to also measure effectiveness in serving employers using other methods for their own program management purposes, though these other methods are not required to be reviewed or submitted to the Department.
Regarding whether the proposed indicator measures all aspects of effectiveness in serving employers, the Department believes there are many aspects to a program's effectiveness in serving employers, some of which are very difficult to quantify and report. Therefore, the Department chose one aspect of effectiveness that employers stated would be beneficial and can be measured across WIOA core programs and title I non-core programs with minimal burden to employers—employee retention.
Another commenter recommended that the Department review other methods of assessing effectiveness in serving employers, including: measuring the use of incumbent worker training to serve local businesses, scored based on the overall percentage of WIOA funds used and the number of businesses served. Another commenter recommended that effectiveness in serving employers should positively count any individual who is employed in the fourth quarter after exit and who has improved either their wages, benefits, or working conditions since the second quarter after exit, rather than only those with the same employer. Another commenter asserted that the proposed rule does not establish an objective standard for measuring effectiveness in serving employers, and suggested that the measure could address timeliness, professionalism, or English proficiency.
The suggested alternative approaches mentioned in the comments, such as Employer Penetration and Repeat Business Customer, were ultimately not selected as the definition for the effectiveness in serving employer performance indicator due to: (1) the nature of a very low employer penetration rate compared to all businesses within a State, leading to difficulties in improving the measure over time; and (2) the fact that a satisfied business may not need to partner with the State workforce system again. Additionally, these alternative measures are not based on existing standardized reporting mechanisms and would be impractical to apply to all grantees across WIOA core programs and WIOA title I non-core programs.
Regarding the commenter's observation that the fewest number of States selected Retention with the Same Employer measure for the WIOA core program pilot and the commenter's interpretation that this lowest adoption rate indicates that States did not think it was a useful measure for the WIOA core program, the Department did not inquire why States chose certain measures during the pilot period and notes that there is no evidence that a lower adoption rate correlates with a lack of usefulness in measuring effectiveness in serving employers in the State . The Department notes that Retention with the Same Employer was the easiest measure for States to implement for the WIOA core programs based on it being calculated from existing PIRL elements. Therefore, it is plausible that fewer States chose to pilot this measure for WIOA core programs because they already knew how to calculate this measure and would not have needed to test how to implement it in their State. They may have wanted to assess how the two other pilot measures would work for WIOA core programs.
The Department appreciates the commenters' ideas for additional data points to be collected and encourages WIOA title I non-core program grantees and Job Corps contractors to do so where it aids in guiding service delivery policies. Specifically, a commenter recommended including collecting and reporting data on: the number of job orders posted and number of candidates referred per posting; use of incumbent worker training (by percentage of WIOA funds used and number of businesses served); number, array, and availability of business services offered by a workforce development board or AJC; funding passed from workforce development boards or AJCs through to local businesses; or number of businesses engaged with Registered Apprenticeship opportunities through workforce development boards or AJCs. The Department declines to use these additional data points in defining the effectiveness in serving employers indicator because they are not applicable to all of the WIOA title I non-core programs and would, therefore, not further the goal of consistent performance measurement across all WIOA programs. In cases where the metric is a count of services, these suggested data collection points would merely measure the quantity of services provided to employers rather than the effectiveness of those services rather than quality or effectiveness. The Department believes these suggestions would measure outputs compared to an outcome. In most cases, an output like the number of services provided may not correlate to the ultimate goal, placing and retaining quality employees
Regarding suggestions that the measure could address timeliness, professionalism, or English proficiency of participants, the Department has considered these approaches, but rejects them and declines to make revisions. These types of factors are subjective, not easily measurable, and may require the use of surveys. The Department notes that employer satisfaction surveys introduce a higher level of burden and potentially inconsistent results compared to the Retention with the Same Employer metric. Furthermore, during previous webinars and town halls with State workforce agencies, members of the employer community, and other stakeholders that the Departments held in September and October 2014 to inform the development of the Joint WIOA NPRM (80 FR 20609) and the Joint WIOA Final Rule (81 FR 55848), employers specifically commented that they consider satisfaction surveys burdensome and recommended they not be used in this indicator.
After careful consideration of public comment opportunities, ongoing stakeholder engagement efforts,
However, the Department acknowledges that certain categories of employment, such as entrepreneurial employment, Federal employment, employment with the U.S. Postal Service and the military, and farmwork, are not reflected in State UI wage record databases. Additionally, participants are not required to provide Social Security numbers, which are needed to use wage records, to obtain services and some participants may be reluctant to share this information.
To ensure that effectiveness in serving these additional employers is assessed, the Department concurs with commenters that the Retention with the Same Employer measure should be expanded to include the number of participants with wage records or supplemental wage information who exit during the reporting period and were employed by the same employer during the second quarter after exit and the fourth quarter after exit divided by the number of participants with wage records or supplemental wage information who exit and were employed during the second quarter after exit. Organizations collecting supplemental wage information for the purposes of calculating Retention with the Same Employer must be able to ascertain that the participant's wage information reflects the same establishment (which may include tax documents, payroll records, employer records, and follow-up surveys from program participants) in both the second and fourth quarters after exit.
The Department agrees that supplemental wage information could play a vital role when wage records are either unavailable for a participant or difficult to obtain. For this reason, we have revised proposed §§ 684.460(a)(6), 684.620(a)(6), 686.1010(f), and 688.400(f) to remove the requirement that wage records be used to document a participant's employment status for purposes of the effectiveness in serving employers performance indicator. This change allows for the effectiveness in serving employers indicator to include the same data sources as other employment-based primary indicators of performance, including supplemental wage information.
As noted above, the Department also wants to make clear the final rule uses the term “unsubsidized employment” to align the effectiveness in serving employers performance indicator to WIOA statutory language, specifically referring to unsubsidized employment in the second and fourth quarters after exit, which are key inputs to this indicator's definition of Retention with the Same Employer. These changes to the § 677.155 regulatory text for WIOA core programs have been carried over to this final rule at revised § 684.460(a)(6) for INA Youth, revised § 684.620(a)(6) for INA, revised § 686.1010(f) for Job Corps, and revised § 688.400(f) for YouthBuild, where the regulatory text changes were intended to align with the § 677.155 WIOA core programs definition of the effectiveness in serving employers performance indicator.
Part 684 governs the INA programs authorized under WIOA sec. 166, including programs for Native American youth (INA Supplemental Youth Services). The INA programs are intended to support employment and training activities for INA program participants in order to develop more fully academic, occupational, and literacy skills and to serve unemployed and low-income Indian and Native American populations seeking to achieve economic self-sufficiency consistent with the goals and values of the particular communities. Where active, INA programs are required one-stop center partners. The Department administers these programs to maximize Federal commitment to support the growth and development of INAs and their communities as determined by representatives of such communities while meeting the applicable statutory and regulatory requirements.
WIOA sec. 166(h)(2) requires the Department to reach an agreement with the entities described in WIOA sec. 166(c) as to the levels of performance required for each core indicator, including an effectiveness in serving employers performance indicator. The Department is also required to work with the NAETC to develop a set of performance indicators and standards for the INA adult and youth programs in addition to the primary indicators used to measure performance (WIOA sec. 166(h)(1)(A)).
Section III.F of this document, which pertains to Executive Order (E.O.) 13175 (Indian Tribal Governments), summarizes details from the Department's efforts to engage with INA program grantees and representatives of Tribal entities to explain how the indicator works and receive feedback on concerns INA program grantees may have with the effectiveness in serving employers performance indicator.
In response to the NPRM, the Department received feedback on the proposed use of Retention with the Same Employer as the effectiveness in serving employers performance indicator for INA programs.
The commenter also discussed the regulatory background requiring WIOA sec. 166 programs to be consistent with the self-determined economic and social development goals of the Indian, Alaska Native, and Hawaiian communities served, the Indian Self-Determination and Education Assistance Act, and the government-to-government relationship between the Federal Government and Indian Tribal Governments, and concluded that the effectiveness in serving employers performance measure does not meet the needs of the communities represented and should not be applied to the WIOA INA programs for adult and youth.
The Department acknowledges the commenter's concern about the impact of the effectiveness in serving employers indicator on grantee performance reports. The Department intends to exercise its discretion to place appropriate weight on the effectiveness in serving employers performance indicator relative to other indicators of performance in assessing current or past grantee performance. For example, the Department could exercise its discretion when reviewing grantee performance during monitoring in order to take all indicators into consideration including the additional measures described in TEGL No. 04-19, “Waiver Authority for the INA Program and Implementation of Additional Indicators of Performance,” discussed further below. The Department could also exercise its discretion when setting criteria in grant competitions, such as limiting the weight the Department places on previous performance of this measure or only considering it alongside the employment goals, economic situation, and unique circumstances of the individuals the grantee serves. Recognizing the unique circumstances WIOA title I non-core programs may face, the Department expects variability in the reported outcomes from program to program, especially for programs serving youth, and intends to take this variability into account when establishing levels of performance. These considerations are consistent with TEGL No. 14-18 guidance for applicability of primary performance indicators, which specifies that, as a general matter, participants' outcomes on the applicable primary indicators of performance may be relevant for establishing levels of performance, decisions related to contract awards and renewal, and the award of competitive grants.
The Department also notes that WIOA sec. 166(i)(3) and the WIOA regulations at 20 CFR part 684, subpart I allow the Department to waive requirements, including performance requirements, that are inconsistent with the specific needs of INA grantees if certain conditions are met. Based on consultation with the NAETC, the Department issued guidance TEGL No. 04-19, “Waiver Authority for the INA Program and Implementation of Additional Indicators of Performance,”
The Department appreciates the commenter's suggestion to use the effectiveness in serving employers indicator as a “credit,” rather than for assessing the performance of the grantee. However, the Department has determined that WIOA sec. 166(h) requires the use of all performance indicators under WIOA sec. 116(b)(2)(A), including the indicator on effectiveness in serving employers at sec. 116(b)(2)(A)(i)(VI), for assessing performance. Moreover, the Department disagrees that using this measure as a “credit” is appropriate. The Department recognizes that there are many ways to consider the success of grantees in addition to performance measurement outcomes. The Department gathers qualitative information from grantees in grant competitions and through grant
Regarding the commenter's conclusion that performance measures do not meet the needs of the communities represented and should not be applied to the WIOA INA programs for adult and youth, the Department acknowledges the concerns of Tribal communities and their unique needs. The Department notes that WIOA makes provision for the Department to negotiate additional performance indicators and standards taking into account the needs of participants and the economic circumstances of the communities INA program grantees serve. See WIOA sec. 166(h)(1). The Department has negotiated these additional performance indicators which are described in TEGL No. 04-19. INA program grantee performance also is assessed based on these outcomes. Effectiveness in serving employers is not the only metric for assessing INA program grantee performance.
We also note that WIOA requires the performance of these programs to be measured using the WIOA sec. 116 six statutory indicators of performance, including effectiveness in serving employers. Specifically, WIOA sec. 166(h)(2) requires the Secretary to reach agreement on the levels of performance for each of the primary indicators of performance described in WIOA sec. 116(b)(2)(A), which includes the effectiveness in serving employers indicator.
Further, as explained above, the benefits of defining this measure using Retention with the Same Employer, including that it minimizes reporting burdens for INA program grantees, outweigh the drawbacks, as well as providing more benefits than the use of either of the other performance indicator definitions piloted by the core programs. To fulfill the intent of WIOA's common performance accountability system, the final rule defines effectiveness in serving employers for the INA programs using the Retention with the Same Employer approach so that the Department can measure effectiveness in serving employers consistently across core programs and the WIOA title I non-core programs.
The commenter also requested that the Department consult with the WIOA sec. 166 programs, the NAETC, and Tribal officials in the development and establishment of the effectiveness in serving employers performance indicator definition. As further detailed below in Section III.F, the Department conducted a Tribal consultation to consult with Tribal leaders and WIOA sec. 166 grantees.
Section 684.460(a) sets out the performance indicators that apply to INA youth programs, including an indicator of the effectiveness of serving employers—specifically in paragraph (a)(6)—as established under WIOA sec. 116(b)(2)(A)(iv). The NPRM proposed to change the language in paragraph (a)(6) to align with the effectiveness in serving employers performance indicator language proposed at § 677.155(a)(1)(vi) in the Joint WIOA Effectiveness in Serving Employers NPRM. For the reasons discussed earlier in this section, the Department affirms the approach of aligning changes to § 684.460(a)(6) with the effectiveness in serving employers performance indicator language adopted for WIOA core programs in the Joint WIOA Effectiveness in Serving Employers Final Rule.
The final rule implements the § 684.460(a)(6) changes as proposed, except with minor modifications reflecting the revisions made to § 677.155(a)(1)(vi) in the Joint WIOA Effectiveness in Serving Employers Final Rule. Specifically, § 684.460(a)(6) defines the required effectiveness in serving employers performance indicator as the percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth quarters after exit. As discussed above, these revisions from the proposed rule align the regulations for INA youth program with the Joint WIOA Effectiveness in Serving Employers Final Rule and remove the requirement that wage records be used to document a participant's employment status for purposes of the effectiveness in serving employers performance indicator, thereby allowing for the use of supplemental wage information. Additionally, § 684.460(a)(6) now uses the term “unsubsidized employment” to better align with WIOA statutory language, specifically referring to unsubsidized employment in the second and fourth quarters after exit, which are key inputs to the definition of Retention with the Same Employer.
Section 684.620(a) lists the performance indicators used to evaluate the INA programs, including an effectiveness in serving employers performance indicator. Like the changes to § 684.460(a)(6), the Department is revising the language at § 684.620(a)(6) to define the required effectiveness in serving employers performance indicator as the percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth quarters after exit. This definition of effectiveness in serving employers at § 684.620(a)(6) aligns with the effectiveness in serving employers performance indicator language at § 677.155(a)(1)(vi), as discussed above.
Part 685 establishes regulations for NFJP, authorized in title I, subtitle D of WIOA. The NFJP is a nationally directed, locally administered program of services for migrant and seasonal farmworkers (MSFW) and their dependents. Grant recipients help program participants acquire new skills to either stabilize or advance their agricultural careers or obtain employment in a new industry. The program also works to meet the critical need of safe and sanitary permanent and temporary housing for farmworkers and their families.
Section 167(c)(3) of WIOA (29 U.S.C. 3222) requires the Department to use the six WIOA primary indicators of performance, including the effectiveness in serving employers performance indicator, to assess the performance of the NFJP. As explained in the proposed rule, part 685 specifies that NFJP grantees providing career services and training must use the indicators of performance described in WIOA sec. 116(b)(2)(A) (§ 685.400(a) and (b)) but does not list each performance indicator. Therefore, the Department did not propose any changes to part 685.
NFJP housing grantees, which provide housing assistance rather than training and employment placement services, are required to report a different set of performance indicators as defined in § 685.400(c), specifically the total number served of eligible MSFWs, other individuals, eligible MSFW families, and other families. Therefore, the revised definition of the effectiveness in serving employers performance indicator in 20 CFR part 677 finalized in the Joint WIOA Effectiveness in Serving Employers Final Rule applies to NFJP career services grantees but not housing grantees.
The Department notes that this will have no noticeable change to procedures for career services grantees, as they already report this information in accordance with TEGL No. 14-18, using the Retention with the Same Employer definition of the performance indicator.
No comments were received on the applicability of the effectiveness in serving employers performance indicator to the NFJP in response to the proposed rule. With the Joint WIOA Effectiveness in Serving Employers Final Rule, NFJP career services grantees will use the revised definition of the effectiveness in serving employers performance indicator in 20 CFR part 677.
Part 686 establishes regulations for the Job Corps program, authorized in title I, subtitle C of WIOA. Job Corps is a no-cost education and career technical training program administered by the Department, which includes 121 Job Corps centers across the United States. The program aims to help young people—ages 16 to 24—gain academic credentials and career technical training skills and secure quality employment. No comments were received on the proposed changes to part 686 and, thus, the Department adopts the proposed changes to § 686.1010, with minor revisions, as described below.
Job Corps historically has used post-separation surveys to capture post-program employment results. Job Corps' current surveys (OMB Control Number 1205-0426) are administered to participants immediately following the second and fourth quarters after exit and capture information related to whether they are employed or in an educational or training program during those quarters and if they have attained any additional certifications or credentials after exit from the program. In PY 2018, Job Corps revised the reporting periods in the post-separation surveys to replace program-specific definitions of the second and fourth quarters after exit with the same definitions used by other DOL employment and training programs.
This definitional shift created alignment with quarterly wage records and facilitated calculation of common exit and outcomes across WIOA programs. With this change in definition, Job Corps has been able to apply the effectiveness in serving employers performance indicator as it is described in TEGL No. 14-18, using the Retention with the Same Employer definition of the performance indicator. While the post-separation surveys are a supplemental data source for reporting on the primary indicators of performance, Job Corps did not gain access to wage record matches, the primary data source, until the fourth quarter of PY 2020. All reported outcomes for Job Corps prior to this period were based solely on the supplemental data source. Job Corps began certifying its program results in WIPS for all the primary measures of performance, including the Retention with the Same Employer indicator, in the first quarter of PY 2020.
Starting with the fourth quarter of PY 2020, Job Corps obtained quarterly wage record matches and, combined with the supplemental data from the surveys, has been able to report fully on the primary measures of performance, including the Retention with the Same Employer indicator.
Section 686.1010 lists the primary indicators used to measure the performance of Job Corps centers, which includes the effectiveness in serving employers performance indicator. This performance indicator is reported based on data collected from former students during the second and fourth quarters after exit.
No comments were received on the applicability of the effectiveness in serving employers performance indicator to the Job Corps Program in response to the proposed rule. However, as discussed above, the final rule implements the § 686.1010(f) changes as proposed, but with minor modifications reflecting the revisions made to § 677.155(a)(1)(vi) in the Joint WIOA Effectiveness in Serving Employers Final Rule. Specifically, revised § 686.1010(f) defines the required effectiveness in serving employers performance indicator as the percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth quarters after exit.
Part 688 establishes regulations for the YouthBuild programs, authorized in title I, subtitle D of WIOA. YouthBuild is a pre-apprenticeship program that provides education and job training opportunities for at risk youth (ages 16-24) who have dropped out of school, or subsequently re-enrolled, and meet certain other requirements. Program participants learn vocational skills focused on the construction industry, as well as other in-demand industries including healthcare, information technology, and hospitality, while also earning their high school diploma. No comments were received on the proposed changes to part 688 and, thus, the Department adopts the proposed changes to § 688.400, with minor revisions, as described below.
Section 688.400 lists the primary indicators used to measure the performance of YouthBuild programs, which also includes a performance indicator for effectiveness in serving employers.
No comments were received on the applicability of the effectiveness in serving employers performance indicator to the YouthBuild programs in response to the proposed rule. However, as discussed above, the final rule implements the § 688.400(f) changes as proposed, but with minor modifications reflecting the revisions made to § 677.155(a)(1)(vi) in the Joint WIOA Effectiveness in Serving Employers Final Rule. Specifically, finalized § 688.400(f) defines the required effectiveness in serving employers performance indicator as the percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth quarters after exit.
Although WIOA only mandated the use of the sec. 116 performance indicators for the four non-core programs addressed in this final rule, the Department has chosen to apply the sec. 116 performance indicators to other non-core programs to assess program performance, including REO grants (authorized under WIOA sec. 169 and
The commenter also stated a concern with the proposed requirement that REO programs collect and report supplemental wage information, discussing the ways this requirement to retain paystubs or other wage documentation would put a distinct burden on REO program staff to collect additional information and follow up with program participants. The commenter also expressed concern that disclosure of a program participant's criminal background to an employer could limit the participant's prospects for job placement. The commenter suggested that supplemental wage data should be accessible from the employment programs themselves, not the employers, in order to give program participants the best chance at moving forward and to best fulfill the missions of these programs.
To address these concerns, the commenter recommended the Department do the following:
• Provide clear program guidance for REO program grantees on regulatory definitions.
• Determine that grantees can access wage record data in order to report employment outcomes of program participants.
• Consider other performance outcomes that would capture effectiveness in serving employers and provide a benefit to fair-chance employers, like the Federal bonding program and Work Opportunity Tax Credit do.
• Find measures of program performance that align with the goals of providing the best chances for success for justice-involved individuals.
As the commenter mentions, success for justice-involved individuals is more likely to include progression in jobs. Recognizing the unique circumstances such as this, the Department expects variability in the reported outcomes from program to program and intends to take this variability into account when negotiating levels of performance. These considerations are consistent with TEGL No. 14-18 guidance for applicability of primary performance indicators, which specifies that, as a general matter, participants' outcomes on the applicable primary indicators of performance may be relevant for negotiating levels of performance, decisions related to contract awards and renewal, and the award of competitive grants.
It should be kept in mind that the effectiveness in serving employers performance indicator is unique among all other indicators in that it is employer-focused. Employers are critical partners with WIOA title I non-core programs in providing quality services and employment opportunities to program participants. Furthermore, there is anecdotal evidence from employers, as well as a few small studies that suggest justice-involved individuals tend to have lower turnover rates relative to the average employee.
The Department also notes that while this indicator allows for the use of supplemental wage information, collecting such information is not mandatory. ETA will continue to conduct UI wage matching on behalf of reentry grantees for this and other employment-related performance indicators to reduce the burden of collecting this information manually. Therefore, it is not necessary for grantees to have access to wage record data to comply with this reporting requirement.
The Department considered the commenter's request that the other performance outcomes be used such as is done with the Federal bonding program and the Work Opportunity Tax Credit. However, the Department has determined Retention with the Same Employer is appropriate after piloting three approaches of the effectiveness in serving employers performance indicator. The Department concluded that the Retention with the Same Employer approach provides a valid and reliable approach to measuring the indicator, while also placing the least amount of burden on REO grant recipients to implement.
The Department will update guidance and technical assistance on this topic for reentry grantees as needed following the publication of the final rule.
To address these concerns, the commenter recommended the Department do the following:
• Retain the current definition and practices for assessing effectiveness of SCSEP programs in serving employers.
• Provide clear guidance on any intentions to change definitions of the performance indicator of effectiveness in serving employers for SCSEP programs.
Under E.O. 12866, the Office of Information and Regulatory Affairs (OIRA) determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB. See 58 FR 51735 (Oct. 4, 1993). Section 1(b) of E.O. 14094 amends sec. 3(f) of E.O. 14094 to define a “significant regulatory action” as an action that is likely to result in a rule that may: (1) have an annual effect on the economy of $200 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or tribal governments or communities (also referred to as economically significant); (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raise legal or policy issues for which centralized review would meaningfully further the President's priorities or the principles set forth in the E.O. See 88 FR 21879 (Apr. 11, 2023). This final rule is a significant regulatory action under section 3(f) of E.O. 12866, as amended by E.O.14094.
E.O. 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 qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
Section III.A.2 provides a summary of the results of the RIA. Section III.A.3 describes the need for the final rule, and Section III.A.4 describes the process used to estimate the costs of the final rule and the general inputs used, such as wages and number of affected entities. Section III.A.5 explains how the provisions of the final rule will result in quantifiable costs and presents the calculations the Department used to estimate them. In addition, Section III.A.5 describes the qualitative benefits of the final rule. Section III.A.6 summarizes the estimated first-year and 10-year total and annualized costs of the final rule. Finally, Section III.A.7 describes the regulatory alternatives considered when developing the final rule.
The Department did not receive comments on the proposed rule economic analysis. Changes in this final rule economic analysis include updating wage rates and the number of affected entities to reflect the most recent data available. The new wage rates and affected entities are presented in Section III.A.4.
The Department estimates that the final rule will result in costs and qualitative benefits. As shown in Exhibit 1, the final rule is expected to have a one-time cost of $52,223. The Department estimates that the final rule will result in an annualized net quantifiable cost of $7,435 at a discount rate of 7 percent and expressed in 2022 dollars.
The cost of the final rule is associated with rule familiarization for all 121 Job Corps centers and 97 career transition service providers for a total of 218 Job Corps entities, 53 NFJP career service and training grantees, 64 INA youth grantees, 97 INA adult grantees, and 237 YouthBuild grantees.
The Department cannot quantify the benefits of the final rule; therefore, Section III.A.5 (Subject-by-Subject Analysis) describes the benefits qualitatively.
This final rule is necessary to complete implementation of the performance accountability requirements as discussed in the Joint WIOA Final Rule and required by statute. WIOA included a common performance accountability system, consisting of six statutory primary indicators of performance, applicable to all WIOA core programs: adult, dislocated worker, and youth programs under title I of WIOA; the AEFLA program under title II; the ES program authorized under the Wagner-Peyser Act as amended by WIOA title III; and the VR program authorized under title I of the Rehabilitation Act, as amended by WIOA title IV. WIOA also required that the six statutory primary indicators of performance apply to four WIOA title I, DOL-administered non-core programs: INA, NFJP, Job Corps, and YouthBuild (“title I non-core programs”). The statute defines five of the six performance indicators. However, WIOA did not specify how effectiveness in serving employers should be measured. Instead, WIOA directed the Departments to develop a definition for the effectiveness in serving employers performance indicator (WIOA sec. 116(b)(2)(A)(iv)). In the Joint WIOA Final Rule, the Departments determined that it was prudent to pilot three definitions for the sixth performance indicator, which measures a State's effectiveness in serving employers through its WIOA-authorized programs. As explained earlier in this final rule, that pilot, as well as a study of the results from the pilot,
The Department estimated the costs of the final rule relative to the existing baseline. The Department determined that the final rule will result in no change from the baseline for the title I non-core programs. As a result, the Department estimates only the costs of rule familiarization for the title I non-core programs.
WIOA secs. 159(c)(1) (Job Corps), 166(e)(5) (INA), 167(c)(2)(C) (NFJP), and 171(f)(1) (YouthBuild) specify that performance for these title I non-core programs must be assessed using the WIOA sec. 116 primary indicators of performance for WIOA core programs. In this final rule, the Department is codifying the approach for evaluating a program's effectiveness in serving employers, as put into practice through previously issued guidance
All title I non-core programs, except the INA Supplemental Youth Services program, are able to report the Retention with the Same Employer definition of effectiveness in serving employers performance indicator, as required in TEGL No. 14-18, through WIPS or GPMS. Unlike the other title I non-core programs, the INA Supplemental Youth Services program is not currently reporting, and will not immediately be able to report, the effectiveness in serving employers performance indicator. The INA Supplemental Youth Services case management system is available for grantees to enter data for youth participants who were served on or after April 15, 2023, and produces program reports. Because grantees are still tracking in legacy systems the data for participants whose services began before April, INA youth grantees will, for a period of time, use WIOA transition authority with regard to collecting and reporting on WIOA performance indicators, including the effectiveness in serving employers performance indicator. The Department is continuing, independent of this rulemaking, to build new functionality into the recent case management system for INA youth grantees that provides for the collection and reporting of the effectiveness in serving employers performance indicator. Therefore, this final rule does not impose any new cost associated with the case management system. When the case management system is built, the INA youth grantees will use it to collect and report the outcomes for the effectiveness in serving employers performance indicator. The use of the new system to report the effectiveness in serving employers performance indicator will impose a de minimis cost for the INA youth grantees. When the INA Supplemental Youth Services case management system is complete, the INA youth program grantees would face a de minimis cost associated with reporting the effectiveness in serving employers performance indicator in the new system.
Exhibit 2 presents the number of entities the Department expects the final rule to affect. The Department provides these estimates and uses them to
In Section III.A.5 (Subject-by-Subject Analysis), the Department presents the costs, including labor, associated with the final rule. Exhibit 3 presents the hourly compensation rates for the occupational categories expected to experience a change in level of effort (workload) due to the final rule. We use the Bureau of Labor Statistics (BLS) mean hourly wage rate for local government employees.
The Department's analysis below covers the estimated cost of the final rule.
The following sections describe the costs of the final rule.
INA, YouthBuild, NFJP, and Job Corps programs would need to familiarize themselves with the new regulation. Consequently, this will impose a one-time cost in the first year.
To estimate the first-year cost of rule familiarization for INA, YouthBuild, NFJP, and Job Corps programs, the Department multiplied the estimated number of management analysts (1) by the time required to read and review the rule (1 hour), and by the applicable hourly compensation rate ($78.06/hour). We multiplied this result by the number Job Corps active centers (218), NFJP grantees (53), INA Youth program grantees (64), INA Adult program grantees (97), and the number of YouthBuild grantees (237). This calculation yields $52,536 in one-time labor costs for Job Corps, NFJP, YouthBuild, INA Youth, and INA Adult programs to read and review the rule. Over the 10-year period of analysis, these estimated one-time costs result in an average annual cost of $5,222 undiscounted, or $6,122 and $7,435 at discount rates of 3 and 7 percent, respectively.
The Department cannot quantify the final rule's benefits associated with improving the title I non-core programs' effectiveness in serving employers. Measuring effectiveness in serving employers allows title I non-core programs to set goals, monitor, and learn how to serve employers more effectively.
The Department cannot quantify these estimated benefits because we do not have quantitative data on how the effectiveness in serving employers performance indicator has influenced program implementation and how much it would influence future policies.
Requiring the calculation and reporting of Retention with the Same Employer as the effectiveness in serving employers performance indicator will make it easier to compare WIOA title I
The Department estimates the total net cost of the final rule at $52,223 at a discount rate of 7 percent. The Department estimates the annualized net cost of the final rule at $7,435 at a discount rate of 7 percent. Exhibit 4 summarizes the estimated cost of the final rule over the 10-year analysis period.
The Department considered two alternatives to the finalized definition of the effectiveness in serving employers performance indicator. First, the Department considered requiring use of the Employer Penetration pilot approach, which reports the percentage of employers using services out of all employers in the State. This approach would have required counts of services provided to employers requiring States and local areas to report unique counts of employer establishments receiving services through WIOA's programs. Employer Penetration would require a more data-intensive analysis than the Retention with the Same Employer approach. Employer Penetration would have the benefit of capturing the extent to which employers within a State are engaged with WIOA-funded services and would provide State programs an incentive to work with additional employers. In the Final Pilot Report Study, the Department found weaknesses in this pilot approach including: (1) emphasis on quantity rather than quality or intensity of the employer service provided; (2) reliability issues associated with data entry and the process to count unique establishments; (3) measurement of program output rather than outcome; (4) potential for creation of perverse incentives to prioritize program breadth rather than depth in service and delivery; and (5) lack of sensitivity to industry sectors targeted by State and local workforce agencies.
The Department considered a second regulatory alternative that would require the use of the Repeat Business Customer approach to the effectiveness in serving employers performance indicator, which reports the percentage of employers receiving services in a year who also received services within the previous 3 years. This approach to the effectiveness in serving employers measure requires counts of services provided to employers through WIOA's programs. Repeat Business Customer requires a more data-intensive analysis than the proposed approach of Retention with the Same Employer. Repeat Business Customer captures the extent to which employers within a State can find workers and the employer's level of satisfaction with the public workforce system services. In the Final Pilot Study Report, the Department found weaknesses in this pilot approach including that it: (1) may provide a disincentive to reach out to new employers; (2) is subject to variation in industry and sector economic conditions; and (3) may require a SAM to mitigate the weaknesses and improve implementation and interpretation.
The Department prefers the Retention with the Same Employer approach because it has data more readily available and, therefore, it is less burdensome. The Retention with the Same Employer approach better aligns with workforce system goals of matching employers with job seekers and reducing turnover without the weaknesses associated with the other two approaches to defining the effectiveness in serving employers performance indicator. In addition, because title I non-core programs are already required to report the Retention with the Same Employer measure, the two alternative measures would impose new costs to affected entities associated with collecting data, calculation of, and reporting the alternative measure.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601
The Department finds that this final rule will not have a significant economic impact on a substantial number of small entities. Based on this determination, the Department certifies
This final rule can be expected to impact small entities within the Job Corps, NFJP, and INA programs. These small entities can be, for example, Tribal or non-profit grantees, including regionally focused entities. The Department has estimated costs that are new to this final rule. As discussed in Section III.A, the calculated cost of this rule is a one-time per-entity cost of $78.06 associated with rule familiarization and would, therefore, have a de minimis impact on any one particular entity. Therefore, the Department certifies that this final rule does not have a significant economic impact on a substantial number of small entities.
The Department previously submitted and received OMB approval for the information collection discussed above (OMB Control Number 1205-0521) in Section I, Background and Rulemaking Authority. See ICR Reference Number 202104-1205-003 (OMB Control Number 1205-0521). This final rule does not modify any of the content in the exiting OMB Control Number 1205-0521.
E.O. 13132 aims to guarantee the division of governmental responsibilities between the National Government and the States and to further the policies of the Unfunded Mandates Reform Act of 1995 (UMRA). Accordingly, E.O. 13132 requires executive departments and agencies to ensure that the principles of federalism guide them in the formulation and implementation of policies. Further, agencies must adhere to constitutional principles, examine the constitutional and statutory authority supporting a regulation that would limit the policymaking discretion of the States, and assess the need for such a regulation. To the extent practicable, agencies must consult State and local officials before implementing any such regulation.
E.O. 13132 further provides that agencies must implement a regulation that limits the policymaking discretion of the States only where there is constitutional and statutory authority for the regulation and it addresses a problem of national significance. For a regulation administered by the States, the National Government must grant the States the maximum administrative discretion possible to avoid intrusive Federal oversight of State administration, and agencies must adhere to special requirements for a regulation that preempts State law. E.O. 13132 also sets forth the procedures that agencies must follow for certain regulations with federalism implications, such as preparation of a summary impact statement.
Accordingly, the Department has reviewed this WIOA-required final rule and has concluded that the rule has no Federalism implications. This final rule has no substantial direct effects on States, on the relationships between the States, or on the distribution of power and responsibilities among the various levels of government as described by E.O. 13132. Therefore, the Department has concluded that this final rule does not have a sufficient Federalism implication to warrant the preparation of a summary impact statement.
UMRA directs agencies to assess the effects of Federal regulatory actions on State, local, and Tribal governments, as well as the private sector. A Federal mandate is any provision in a regulation that imposes an enforceable duty upon State, local, or Tribal governments, or imposes a duty upon the private sector that is not voluntary.
Following consideration of the above factors, the Department has concluded that this final rule contains no unfunded Federal mandates, which are defined in 2 U.S.C. 658(6) to include either a “Federal intergovernmental mandate” or a “Federal private sector mandate.” No additional burden related to reporting the effectiveness in serving employers performance indicator is being placed on State, local, and Tribal governments, as this information already is being collected and reported on. Furthermore, the reporting is a contingent to receiving Federal program funding. Any associated reporting mandate cannot, therefore, be considered “unfunded.” Because the decision by a private training entity to participate as a provider under a WIOA core program is purely voluntary, the information collection burden does not impose a duty on the private sector that is not voluntarily assumed.
The Department reviewed this final rule, as well as the Joint WIOA Effectiveness in Serving Employers Final Rule published concurrently with this final rule elsewhere in this issue of the
The Department engaged with INA grantees and the Tribal community at several points in this rulemaking. Prior to issuing the NPRM, the Department held two events to consult with INA program grantees and representatives of Tribal institutions about their experiences with the implementation and operation of the effectiveness in serving employers performance indicator. These two events consisted of a town hall meeting attended both in person and virtually and a formal consultation webinar. The town hall, entitled “Town Hall Discussion: Effectiveness in Serving Employers Performance Indicator,” occurred on September 21, 2021, at the 41st National Indian and Native American Employment and Training conference.
After the release of the NPRM, the Department discussed the NPRM with NAETC at the October 2022 NAETC meeting.
These various engagements provided the Department with feedback from the INA community, Tribal representatives, and the general public that indicating several areas of interest concerning the definition of the effectiveness in serving employers performance indicator for WIOA programs. These concerns are summarized below.
Consultation participants expressed concern about impacts of individuals changing employers for higher wages or different positions. Specifically, several consultation participants asked how the Retention with the Same Employer definition of the performance indicator would apply to individuals who have continuous employment through the second and fourth quarters, but with different employers. Some consultation participants expressed concern that this definition of the performance indicator would not consider individuals who advance to better employment opportunities. One consultation participant expressed concern that the program would be penalized if employees change employers.
Many consultation participants expressed concern about how temporary jobs, such as seasonal or contract-based employment, would be considered. Specifically, one consultation participant gave an example of contractor jobs where individuals may not stay with the same employer and instead change from job to job, such as in construction. Additionally, another consultation participant stated that employers that regularly lay off and then rehire employees would affect outcomes.
A consultation participant asked if this measure applies to the INA youth program. Another consultation participant expressed concern about the impact on performance of limited-duration summer employment opportunities for high school students within INA youth programs. The consultation participants also questioned DOL's willingness to invest in developing a data collection and reporting process for INA youth programs.
Other consultation participants expressed concern about how seasonal jobs would be addressed and that certain areas have more seasonal employment than other areas do. Another consultation participant stated that individuals who participate in the program on a short-term basis while serving time with the Department of Corrections and later return to a different State may impact the performance indicator calculation. A different consultation participant stated that many participating employers primarily provide entry-level positions focused on gaining work experience.
Many consultation participants inquired about how the performance indicator is calculated. One consultation participant asked a question in which the sound quality of the audio was not clear. However, the subject-matter expert interpreted the question to ask if supplemental wages are considered. One consultation participant stated that UI records may not capture individuals who are self-employed. Another consultation participant said that certain States do not have access to UI information that would enable them to calculate the performance indicator.
Many consultation participants suggested other ways to calculate the performance indicator. Examples provided by one consultation participant included employer satisfaction surveys, number of employers served, number of repeat employers, and number of job fairs coordinated with employers. Another consultation participant said they measure success when an employer enquires about recent graduates to fill open positions. A different consultation participant stated that they understood the options DOL considered for how to measure effectiveness in serving employers to include how well programs have assisted employers in hiring new employees through job fairs, work experience to full‐time hires, pre‐screening of candidates, and individual hiring events for specific employers.
Some consultation participants had questions and comments about how the performance indicator would specifically impact Tribal communities. One consultation participant expressed the need for consideration of all Tribal communities and their unique needs. The consultation participant stated that measures used for all INA programs must not only satisfy the intent of the performance indicator but also be meaningful, which is part of the purpose of WIOA sec. 166. The commenter also suggested that grantees should establish a work group within the NAETC to develop information to share with Tribal leaders so that they have background and can communicate what these performance indicators would mean for INA programs.
Another consultation participant cited the DOL-commissioned third-party study of the performance indicator, “Measuring the Effectiveness of Service to Employers,” and questioned why some States with many Indian and Native American participants were not included in the pilot study. The consultation participant also asked if any INA WIOA programs were included in the study. Additionally, a consultation participant said that DOL is seeking support from Tribes on how to measure a performance indicator they may not want.
Many consultation participants asked questions about the rulemaking process and how the Department decided on the proposed definition of the performance indicator. Some consultation participants asked if this performance indicator is required. One consultation participant asked if the performance indicator can be customized based on the grantee's status, for example with different requirements for rural and urban programs. A different consultation participant asked if DOL would decide after consultation with Tribes whether or not to apply the performance indicator to INA programs. Other consultation participants asked if the definition of this performance
A consultation participant asked if other performance indicator definitions have been submitted for consideration, for example from the NAETC. Another consultation participant stated that grantees with direct employer relationships differ from grantees that work with AJCs to facilitate employment for employers. Additionally, a consultation participant asked how grantees can assist participants who are facing issues at a new employment site, such as being picked on or treated unfairly, and whether it would be appropriate to act as a mediator between the employer and the participant.
The Department appreciates the valuable feedback received through these engagements with INA program grantees and representatives of Tribal institutions and has considered this feedback carefully in crafting this final rule and its planned implementation. The effectiveness in serving employers performance indicator is required by the WIOA statute for the INA program, as WIOA sec. 166(h)(2) requires using the primary indicators of performance described in sec. 116(b)(2)(A). Therefore, the Department has determined that a standard definition for the effectiveness in serving employers performance indicator would be proposed and finalized for the INA program. As such, the Department is aligning its definition of this indicator for the sec. 166 INA program with the WIOA Effectiveness in Serving Employers Joint Final Rule.
However, the Department acknowledges the concerns raised through the consultations. In recognition of these concerns, the Department intends to take several steps to address these matters. First, as discussed above in Section III.F, the Department will exercise its discretion to place appropriate weight on the effectiveness in serving employers performance indicator in assessing INA grantee performance. The Department recognizes the unique circumstances INA grantees may face and the expects variability in the reported outcomes from program to program, especially for programs serving youth, and intends to take this variability into account when establishing levels of performance. These considerations are consistent with TEGL No. 14-18 guidance for applicability of primary performance indicators, which specifies that, as a general matter, participants' outcomes on the applicable primary indicators of performance may be relevant for establishing levels of performance, decisions related to contract awards and renewal, and the award of competitive grants.
Second as explained above in Section I.D and III.F, the Department notes that the selected measure should not impose any additional burden on INA program grantees as the definition of the effectiveness in serving employers measure will not require any additional reporting from INA program grantees above what is currently collected for the approved “DOL-Only Performance Accountability, Information, and Reporting System” ICR.
Finally, the Department reaffirms the ability of INA program grantees to request a waiver of performance indicators as described in TEGL No. 04-19, “Waiver Authority for the INA Program and Implementation of Additional Indicators of Performance,” and discussed above in Section III.F. As part of the implementation of this final rule, the Department will provide dedicated technical assistance to INA program grantees regarding the use of this indicator.
Employment, Grant programs—labor, Indians, Reporting and recordkeeping requirements.
Employment, Grant programs—labor, Job Corps.
Employment, Grant programs—labor, Youth, YouthBuild.
For the reasons discussed in the preamble, the Department of Labor proposes to amend 20 CFR parts 684, 686, and 688 as follows:
Secs. 134, 166, 189, 503, Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
(a) * * *
(6) The percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth quarters after exit.
(a) * * *
(6) The percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth quarters after exit.
Secs. 142, 144, 146, 147, 159, 189, 503, Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
(f) The percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth quarters after exit.
Secs. 171, 189, 503, Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
(f) The percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth quarters after exit; and
Office of the General Counsel, HUD.
Final rule.
This rule provides for 2024 inflation adjustments of civil monetary penalty amounts required by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act).
Aaron Santa Anna, Associate General Counsel for Legislation and Regulations, Office of the General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20024; telephone number 202-402-5138 (this is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as from individuals with speech or communication disabilities. To learn more about how to make an accessible telephone call, please visit
The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act) (Pub. L. 114-74, Sec. 701), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), requires agencies to make annual adjustments to civil monetary penalty (CMP) amounts for inflation “notwithstanding section 553 of title 5, United States Code.” Section 553 refers to the Administrative Procedure Act, which provides for advance notice and public comment during the rulemaking process. However, as explained in Section III below, HUD has determined that advance notice and public comment on this final rule is unnecessary.
This annual adjustment is for 2024. The annual adjustment is based on the percent change between the U.S. Department of Labor's Consumer Price Index for All Urban Consumers (“CPI-U”) for the month of October preceding the date of the adjustment, and the CPI-U for October of the prior year (28 U.S.C. 2461 note, section (5)(b)(1)). Based on that formula, the cost-of-living adjustment multiplier for 2024 is 1.03241.
This final rule makes the required 2024 inflation adjustment of HUD's civil money penalty amounts. The 2024 increases apply to penalties assessed
HUD generally publishes regulations for public comment before issuing a rule for effect, in accordance with its own regulations on rulemaking in 24 CFR part 10. However, part 10 provides for exceptions to the general rule if the agency finds good cause to omit advance notice and public participation. The good cause requirement is satisfied when prior public procedure is “impractical, unnecessary, or contrary to the public interest” (see 24 CFR 10.1). As discussed, this final rule makes the required 2024 inflation adjustment, which HUD does not have discretion to change. Moreover, the 2015 Act specifies that a delay in the effective date under the Administrative Procedure Act is not required for annual adjustments under the 2015 Act. HUD has determined, therefore, that it is unnecessary to delay the effectiveness of the 2024 inflation adjustments to solicit public comments.
Section 7(o) of the Department of Housing and Urban Development Act (42 U.S.C. 3535(o)) requires that any HUD regulation implementing any provision of the Department of Housing and Urban Development Reform Act of 1989 that authorizes the imposition of a civil money penalty may not become effective until after the expiration of a public comment period of not less than 60 days. This rule does not authorize the imposition of a civil money penalty—rather, it makes a standard inflation adjustment to penalties that were previously authorized. As noted above, the 2024 inflation adjustments are made in accordance with a statutorily prescribed formula that does not provide for agency discretion.
Accordingly, a delay in the effectiveness of the 2024 inflation adjustments in order to provide the public with an opportunity to comment is unnecessary because the 2015 Act exempts the adjustments from the need for delay, the rule does not authorize the imposition of a civil money penalty or alter the requirements in any way, and, in any event, HUD would not have the discretion to make changes as a result of any comments.
Under E.O. 12866 (Regulatory Planning and Review) (58 FR 51735), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. E.O. 13563 (Improving Regulations and Regulatory Review) (76 FR 3821) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” E.O. 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. Executive Order 14094 (Modernizing Regulatory Review) amends section 3(f) of Executive Order 12866 (Regulatory Planning and Review), among other things.
As discussed above in this preamble, this final rule adjusts existing civil monetary penalties for inflation by a statutorily required amount. HUD determined that this rule was not significant under E.O. 12866, as amended by E.O. 14094, and E.O. 13563.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
Executive Order 13132 (entitled “Federalism”) (64 FR 43255) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the
This final rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern, or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this final rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Administrative practice and procedure, Claims, Fraud, Penalties.
Administrative practice and procedure, Grant programs—housing and community development, Loan programs—housing and community development, Mortgage insurance, Mortgages, Penalties.
Government contracts, Government employees, Grant programs, Loan programs, Lobbying, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Aged, Civil rights, Fair housing, Individuals with disabilities, Investigations, Mortgages, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Consumer protection, Intergovernmental relations, Investigations, Manufactured homes, Reporting and recordkeeping requirements, Warranties.
Accordingly, for the reasons described in the preamble, HUD amends 24 CFR parts 28, 30, 87, 180, and 3282 to read as follows:
28 U.S.C. 2461 note; 31 U.S.C. 3801-3812; 42 U.S.C. 3535(d).
(a) * * *
(1) A civil penalty of not more than $13,946 may be imposed upon any person who makes, presents, or submits, or causes to be made, presented, or submitted, a claim that the person knows or has reason to know:
(b) * * *
(1) A civil penalty of not more than $13,946 may be imposed upon any person who makes, presents, or submits, or causes to be made, presented, or submitted, a written statement that:
12 U.S.C. 1701q-1, 1703, 1723i, 1735f-14, and 1735f-15; 15 U.S.C. 1717a; 28 U.S.C. 1 note and 2461 note; 42 U.S.C. 1437z-1 and 3535(d).
(b) Maximum penalty. The maximum penalty is $24,496 for each violation.
(b)
(c)(1)
(c)
(c)
(g)
(c)
(c)
(b)
(c)
28 U.S.C. 1 note; 31 U.S.C. 1352; 42 U.S.C. 3535(d).
(a) Any person who makes an expenditure prohibited herein shall be subject to a civil penalty of not less than $24,496 and not more than $244,958 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see appendix B to this part) to be filed or amended if required herein, shall be subject to a civil penalty of not less than $24,496 and not more than $244,958 for each such failure.
(e) First offenders under paragraphs (a) or (b) of this section shall be subject to a civil penalty of $24,496, absent aggravating circumstances. Second and subsequent offenses by persons shall be subject to an appropriate civil penalty between $24,496 and $244,958, as determined by the agency head or his or her designee.
28 U.S.C. 1 note; 29 U.S.C. 794; 42 U.S.C. 2000d-1, 3535(d), 3601-3619, 5301-5320, and 6103.
(a) * * *
(1) $25,597, if the respondent has not been adjudged in any administrative hearing or civil action permitted under the Fair Housing Act or any state or local fair housing law, or in any licensing or regulatory proceeding conducted by a Federal, State, or local governmental agency, to have committed any prior discriminatory housing practice.
(2) $63,991, if the respondent has been adjudged in any administrative hearing or civil action permitted under the Fair Housing Act, or under any state or local fair housing law, or in any licensing or regulatory proceeding conducted by a Federal, State, or local government agency, to have committed one other discriminatory housing practice and the adjudication was made during the 5-year period preceding the date of filing of the charge.
(3) $127,983, if the respondent has been adjudged in any administrative hearings or civil actions permitted under the Fair Housing Act, or under any state or local fair housing law, or in any licensing or regulatory proceeding conducted by a Federal, State, or local government agency, to have committed two or more discriminatory housing practices and the adjudications were made during the 7-year period preceding the date of filing of the charge.
15 U.S.C. 2697, 28 U.S.C. 2461 note, 42 U.S.C. 3535(d), 5403, and 5424.
Failure to comply with these regulations may subject the party in question to the civil and criminal penalties provided for in section 611 of the Act, 42 U.S.C. 5410. The maximum penalty imposed under section 611 of the Act shall be $3,558 for each violation, up to a maximum of $4,446,755 for any related series of violations occurring within one year from the date of the first violation.
Equal Employment Opportunity Commission.
Correcting amendments.
On February 14, 2024, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) amended its procedural regulations to include references to the Pregnant Workers Fairness Act (“PWFA”). Due to drafting errors, two of those changes would not be recognized in the Code of Federal Regulations as drafted, and the Commission therefore issues these correcting amendments to ensure that its procedural regulations reference the PWFA where appropriate.
These correcting amendments are effective February 23, 2024.
Kathleen Oram, Assistant Legal Counsel, (202-900-8652 (voice); 1-800-669-6820 (TTY)), Office of Legal Counsel, 131 M Street NE, Washington, DC 20507.
The Pregnant Workers Fairness Act (“PWFA”) became law on December 29, 2022, and became effective on June 27, 2023. In crafting the PWFA enforcement section, Congress incorporated the existing mechanisms and procedures for redress of other forms of employment discrimination. Procedural regulations were amended to include the PWFA in an interim final rule published in the
Administrative practice and procedure, Equal employment opportunity.
Accordingly, 29 CFR parts 1601 and 1614 are amended by making the following correcting amendments:
42 U.S.C. 2000e to 2000e-17; 42 U.S.C. 12111 to 12117; 42 U.S.C. 2000ff to 2000ff-11; 42 U.S.C. 2000gg to 2000gg-6; 28 U.S.C. 2461 note, as amended; Pub. L. 104-134, Sec. 31001(s)(1), 110 Stat. 1373.
29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C. 2000e-16, 2000ff-6(e), and 2000gg-2(e); E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR, 1969 Comp., p. 133; E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg. Plan No. 1 of 1978, 3 CFR, 1978 Comp., p. 321.
For the Commission.
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce the Mark Hahn Memorial 300 Mile Personal Watercraft (PWC) Endurance Race special local regulation on the waters of Lake Havasu, Arizona from February 23 through February 25, 2024. This special local regulation is necessary to provide for the safety of the participants, crew, sponsor vessels, and general users of the waterway. During the enforcement period, persons and vessels are prohibited from entering, transiting through, or anchoring within this regulated area unless authorized by the Captain of the Port, or his designated representative.
The regulations in 33 CFR 100.1102 will be enforced from 7 a.m. until 6 p.m., each day from February 23, 2024, through February 25, 2024, for the location described in Item No. 14 in Table 1 to § 100.1102.
If you have questions about this notification of enforcement, call or email Lieutenant Shelley Turner, Waterways Management, U.S. Coast Guard Sector San Diego, CA; telephone 619-278-7656, email
The Coast Guard will enforce the special local regulations in 33 CFR 100.1102 for the Mark Hahn Memorial 300 Mile PWC Endurance Race on Lake Havasu, AZ for the location described in Table 1 to § 100.1102, Item No. 14 of that section, from 7 a.m. to 6 p.m. on February 23, 2024, through February 25, 2024. This action is being taken to provide for the safety of life on the navigable waterway during the race. Our regulation for recurring marine events on the Colorado River, between Davis Dam (Bullhead City, Arizona) and Headgate Dam (Parker, Arizona), § 100.1102, Table 1 to § 100.1102, Item No. 14, specifies the location of the regulated area for the Mark Hahn Memorial 300 PWC Endurance Race, which encompasses portions of Lake Havasu. Under the provisions of § 100.1102, persons and vessels are prohibited from entering, transiting through, or anchoring within this regulated area unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
In addition to this document in the
If the Captain of the Port Sector San Diego or his designated representative determines that the regulated area need not be enforced for the full duration stated on this document, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Small Entity Compliance Guide (SECG).
This document is issued under the joint authority of DoD, GSA, and NASA. This
February 23, 2024.
The FAC, including the SECG, is available at
For clarification of content, contact the analyst whose name appears in the table below. Please cite FAC 2024-03 and the FAR Case number. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755 or
Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these FAR rules, refer to the specific item numbers and subjects set forth in the documents preceding these item summaries. FAC 2024-03 amends the FAR as follows:
This interim rule amends the Federal Acquisition Regulation to implement the Governmentwide certification requirement for service-disabled veteran-owned small business (SDVOSB) concerns seeking sole-source and set-aside awards under the SDVOSB Program. Beginning January 1, 2024, SDVOSB concerns must either be certified by the Small Business Administration (SBA), or have both submitted an application for certification to SBA on or before December 31, 2023, and represented that it is an SDVOSB in the System for Award Management (SAM), in order to be eligible for sole-source or set-aside awards under the SDVOSB Program. This rule also requires that an SDVOSB concern update its status in the System for Award Management no later than two days after the date of a final determination that the concern does not meet the requirements of the status the concern claims to hold, and provides new SDVOSB protest and appeal procedures. The interim rule will not have a significant economic impact on a substantial number of small entities because the rule simply implements the requirements of SBA's regulations and does not impose any additional compliance burden on entities.
This final rule amends the FAR to adjust the thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements as determined by the United States Trade Representative, according to predetermined formulae under the agreements.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain GA8 Airvan (Pty) Ltd Model GA8 and GA8-TC320 airplanes. This proposed AD was prompted by reports of insufficient electrical bonding of the solenoid (relay) box assembly that could result in degraded performance, errors, or intermittent failures of equipment connected to electrical Bus 1, Bus 2, associated electrical control, and protective devices fitted within or attached to the solenoid box. This proposed AD would require inspecting for an existing wire connecting the relay box earth point to the ground power socket, and if one is not present, installing a mechanical connection. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this NPRM by April 8, 2024.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
Material Incorporated by Reference:
• For service information identified in this NPRM, contact GA8 Airvan (Pty) Ltd, P.O. Box 881, Morwell, Victoria 3840, Australia; phone: +61 (0)3 5172 1200; email:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 901 Locust, Kansas City, MO 64106. For information on the availability of this material at the FAA, call (817) 222-5110.
Doug Rudolph, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (816) 329-4059; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Doug Rudolph, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.
The Civil Aviation Safety Authority (CASA), which is the aviation authority for Australia, has issued CASA Australia AD GA8/11, dated November 21, 2023 (CASA Australia AD GA8/11) (also referred to as the MCAI), to correct an unsafe condition on all GA8 Airvan (Pty) Ltd Model GA8 and GA8-TC320 airplanes. The MCAI states that operators made two reports and a few anecdotal reports of intermittent system discrepancies attributed to insufficient electrical bonding of the solenoid (relay) box assembly. Without a dedicated solenoid box electrical bonding connection, these airplanes may suffer degraded performance, errors, or intermittent failures of equipment connected to electrical Bus 1, Bus 2, associated electrical control, and protective devices fitted within or attached to the solenoid box. The majority of Model GA8 and GA8-TC320 airplanes were produced with the relay box electrically bonded to the airframe via the relay box lid and the hardware (screws) holding it in place. The relay box did not have a dedicated bonding point or mechanical connection.
The MCAI requires doing the actions specified in GippsAero Service Bulletin SB-GA8-2023-216, Issue 1, dated February 24, 2023 (GippsAero SB-GA8-2023-216, Issue 1). These actions include inspecting for an existing wire connecting the relay box earth point to the ground power socket, and if one is not present, installing a mechanical connection.
The FAA is proposing this AD to address this unsafe condition. Not having a dedicated solenoid box electrical bonding connection, if not addressed, could result in degraded electrical equipment performance, errors, or intermittent failures of equipment connected to electrical Bus 1, Bus 2, associated electrical control, and protective devices fitted within or attached to the solenoid box, which could lead to loss of equipment essential for safe flight.
You may examine the MCAI in the AD docket at
The FAA reviewed GippsAero SB-GA8-2023-216, Issue 1. This service information specifies procedures for inspecting for an existing wire connecting the relay box earth point to the ground power socket, and if one is not present, installing a mechanical connection.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require accomplishing the actions specified in the MCAI, except as discussed under “Differences Between This Proposed AD and the MCAI.”
The MCAI applicability is Gippsland Aeronautics Model GA8 Series airplanes. The applicability in this proposed AD would be GA8 Airvan (Pty) Ltd Model GA8 and GA8-TC320 airplanes because that is what is on the FAA type certificate.
Part A, step 4. of the Accomplishment Instructions in GippsAero Service Bulletin SB-GA8-2023-216, Issue 1, specifies to proceed to the Documentation section to update the airplane logbook, but that action would not be specifically required by this proposed AD as current FAA regulations already require a logbook entry for compliance with AD actions.
The FAA estimates that this AD, if adopted as proposed, would affect 62 airplanes of U.S. registry.
The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary actions that would be required based on the results of the proposed inspection. The agency has no way of determining the number of airplanes that might need these actions:
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by April 8, 2024.
None.
This AD applies to GA8 Airvan (Pty) Ltd Model GA8 airplanes, all serial numbers up to and including GA8-20-262; and Model GA8-TC320 airplanes, all serial numbers up to and including GA8-TC 320-20-261; certificated in any category.
Joint Aircraft System Component (JASC) Code 2497, Electrical Power System Wiring.
This AD was prompted by reports of insufficient electrical bonding of the solenoid (relay) box assembly. The FAA is issuing this AD to address possible missing mechanical connections. The unsafe condition, if not addressed, could result in degraded electrical equipment performance, errors, or intermittent failures of equipment connected to electrical Bus 1, Bus 2, associated electrical control and protective devices fitted within or attached to the solenoid box, which could lead to loss of equipment essential for safe flight.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 100 hours time-in-service (TIS) after the effective date of this AD, inspect for a mechanical connection between the relay box earth point to the ground power socket in accordance with Part A, steps 1. through 4. of the Accomplishment Instructions in GippsAero Service Bulletin SB-GA8-2023-216, Issue 1, dated February 24, 2023 (GippsAero SB-GA8-2023-216, Issue 1), except where step 4. specifies to proceed to the Documentation section to update the airplane logbook, that action is not specifically required by this AD.
(2) If no mechanical connection between the relay box earth point to the ground power socket is found during the inspection required by paragraph (g)(1) of this AD, before further flight, install a mechanical connection in accordance with Part B, steps 1. through 3. of the Accomplishment Instructions in GippsAero SB-GA8-2023-216, Issue 1.
The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, mail it to the address identified in paragraph (i)(2) of this AD or email to:
(1) Refer to Civil Aviation Safety Authority (CASA) Australia AD GA8/11, dated November 21, 2023, for related information. This CASA Australia AD may be found in the AD docket at regulations.gov under Docket No. FAA-2024-0234.
(2) For more information about this AD, contact Doug Rudolph, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (816) 329-4059; email:
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In Proposed Rule Document 2024-02590, appearing on pages 9803-9813, in the issue of Monday, February 12, 2024, make the following correction:
On page 9803, in the second column, beginning on the thirty-third line, under the heading
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve the regional haze state implementation plan revision submitted by Oregon on April 29, 2022, as supplemented on November 22, 2023, as satisfying applicable requirements under the
Written comments must be received on or before March 25, 2024.
Submit your comments, identified by Docket ID No. EPA-R10-OAR-2023-0600 at
Jeff Hunt, EPA Region 10, 1200 Sixth Avenue, Suite 155, Seattle, WA 98101, at (206) 553-6357 or
Throughout this document, the use of “we” and “our” means the EPA.
On April 29, 2022 and November 22, 2023, Oregon submitted a state implementation plan (SIP) revision and supplement to address regional haze for the second implementation period. Oregon made the submissions to satisfy the Clean Air Act regional haze program requirements pursuant to Clean Air Act sections 169A and 169B and the EPA's implementing regulations in the Code of Federal Regulations (CFR) at 40 CFR 51.308. The EPA is proposing to find that the Oregon submissions meet the applicable statutory and regulatory requirements and thus we are proposing to approve the submissions into the SIP. We are also proposing to approve, and incorporate by reference into the Oregon SIP at 40 CFR part 52, subpart MM, specific regulatory provisions and source-specific requirements included in the submissions. These provisions are detailed in section V. of this preamble.
In the 1977 Clean Air Act Amendments, Congress created a program
Regional haze is visibility impairment that is produced by a multitude of anthropogenic sources and activities which are located across a broad geographic area and that emit pollutants that impair visibility. Visibility impairing pollutants include fine and coarse particulate matter (PM) (
To address regional haze visibility impairment, the 1999 Regional Haze Rule established an iterative planning process that requires both states in which Class I areas are located and states “the emissions from which may reasonably be anticipated to cause or contribute to any impairment of visibility” in a Class I area to periodically submit SIP revisions to address such impairment.
Much of the focus in the first implementation period of the regional haze program, which ran from 2007 through 2018, was on satisfying states' BART obligations. First implementation period SIPs were additionally required to contain long-term strategies for making reasonable progress toward the national visibility goal, of which BART is one component. The core required elements for the first implementation period SIPs (other than BART) are laid out in 40 CFR 51.308(d). Those provisions required that states containing Class I areas establish reasonable progress goals that are measured in deciviews and reflect the anticipated visibility conditions at the end of the implementation period including from implementation of states' long-term strategies. The first planning period reasonable progress goals were required to provide for an improvement in visibility for the most impaired days over the period of the implementation plan and ensure no degradation in visibility for the least impaired days over the same period. In establishing the reasonable progress goals for any Class I area in a state, the state was required to consider four statutory factors: the costs of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any potentially affected sources.
States were also required to calculate baseline (using the five year period of 2000-2004) and natural visibility conditions (
On January 10, 2017, the EPA promulgated revisions to the Regional Haze Rule that apply for the second and subsequent implementation periods (82 FR 3078). The 2017 rulemaking made several changes to the requirements for regional haze SIPs to clarify States' obligations and streamline certain regional haze requirements. The revisions to the regional haze program for the second and subsequent implementation periods focused on the requirement that States' SIPs contain long-term strategies for making reasonable progress towards the national visibility goal. The reasonable progress requirements as revised in the 2017 rulemaking (referred to here as the 2017 Regional Haze Rule Revisions) are codified at 40 CFR 51.308(f). Among other changes, the 2017 Regional Haze Rule Revisions adjusted the deadline for States to submit their second implementation period SIPs from July 31, 2018, to July 31, 2021, clarified the order of analysis and the relationship between reasonable progress goals and the long-term strategy, and focused on making visibility improvements on the days with the most
The EPA provided guidance to the states for their second implementation period SIP submissions in the preamble to the 2017 Regional Haze Rule Revisions as well as in subsequent, stand-alone guidance documents. In August 2019, the EPA issued “Guidance on Regional Haze State Implementation Plans for the Second Implementation Period” (“2019 Guidance”).
As previously explained in the 2021 Clarifications Memo, the EPA intends for the second implementation period of the regional haze program to secure meaningful reductions in visibility impairing pollutants that build on the significant progress states have achieved to date. The EPA also recognizes that analyses regarding reasonable progress are state-specific and that, based on states' and sources' individual circumstances, what constitutes reasonable reductions in visibility impairing pollutants will vary from state-to-state. While there exist many opportunities for states to leverage both ongoing and upcoming emission reductions under other Clean Air Act programs, the EPA expects states to undertake rigorous reasonable progress analyses that identify further opportunities to advance the national visibility goal consistent with the statutory and regulatory requirements.
Because the air pollutants and pollution affecting visibility in Class I areas can be transported over long distances, successful implementation of the regional haze program requires long-term, regional coordination among multiple jurisdictions and agencies that have responsibility for Class I areas and the emissions that impact visibility in those areas. In order to address regional haze, states need to develop strategies in coordination with one another, considering the effect of emissions from one jurisdiction on the air quality in another. Five regional planning organizations,
The Western Regional Air Partnership (WRAP)
Under the Clean Air Act and the EPA's regulations, all 50 states, the District of Columbia, and the United States (U.S.) Virgin Islands are required to submit regional haze SIPs satisfying the applicable requirements for the second implementation period of the regional haze program by July 31, 2021. Each state's SIP must contain a long-term strategy for making reasonable progress toward meeting the national goal of remedying any existing and preventing any future anthropogenic visibility impairment in Class I areas.
In addition to satisfying the requirements at 40 CFR 51.308(f) related to reasonable progress, the regional haze SIP revisions for the second implementation period must address the requirements in 40 CFR 51.308(g)(1) through (5) pertaining to periodic reports describing progress towards the reasonable progress goals, 40 CFR 51.308(f)(5), as well as requirements for Federal Land Manager consultation that apply to all visibility protection SIPs and SIP revisions.
A state must submit its regional haze SIP and subsequent SIP revisions to the EPA according to the requirements applicable to all SIP revisions under the Clean Air Act and the EPA's regulations.
The first step in developing a regional haze SIP is for a state to determine which Class I areas, in addition to those within its borders, “may be affected” by emissions from within the state. In the 1999 Regional Haze Rule, the EPA determined that all states contribute to visibility impairment in at least one Class I area and explained that the statute and regulations lay out an “extremely low triggering threshold” for determining “whether States should be required to engage in air quality planning and analysis as a prerequisite to determining the need for control of emissions from sources within their State.”
A state must determine which Class I areas must be addressed by its SIP by evaluating the total emissions of visibility impairing pollutants from all sources within the state. While the Regional Haze Rule does not require this evaluation to be conducted in any particular manner, the EPA's 2019 Guidance provides recommendations for how such an assessment might be accomplished, including by, where appropriate, using the determinations previously made for the first implementation period. 2019 Guidance at 8-9. In addition, the determination of which Class I areas may be affected by a state's emissions is subject to the requirement in 40 CFR 51.308(f)(2)(iii) to “document the technical basis, including modeling, monitoring, cost,
As part of assessing whether a SIP submission for the second implementation period is providing for reasonable progress towards the national visibility goal, the Regional Haze Rule contains requirements in 40 CFR 51.308(f)(1) related to tracking visibility improvement over time. The requirements of this section apply only to states having Class I areas within their borders; the required calculations must be made for each such Class I area. The EPA's 2018 Visibility Tracking Guidance
The Regional Haze Rule requires tracking of visibility conditions on two sets of days: the clearest and the most impaired days. Visibility conditions for both sets of days are expressed as the average deciview index for the relevant five-year period (the period representing baseline or current visibility conditions). The Regional Haze Rule provides that the relevant sets of days for visibility tracking purposes are the 20% clearest (the 20% of monitored days in a calendar year with the lowest values of the deciview index) and 20% most impaired days (the 20% of monitored days in a calendar year with the highest amounts of anthropogenic visibility impairment).
Using the data for the set of most impaired days only, states must plot a line between visibility conditions in the baseline period and natural visibility conditions for each Class I area to determine the uniform rate of progress—the amount of visibility improvement, measured in deciviews, that would need to be achieved during each implementation period in order to achieve natural visibility conditions by the end of 2064. The uniform rate of progress is used in later steps of the reasonable progress analysis for informational purposes and to provide a non-enforceable benchmark against which to assess a Class I area's rate of visibility improvement.
The EPA's 2018 Visibility Tracking Guidance can be used to help satisfy the 40 CFR 51.308(f)(1) requirements, including in developing information on baseline, current, and natural visibility conditions, and in making optional adjustments to the uniform rate of progress. In addition, the 2020 Data Completeness Memo provides recommendations on the data completeness language referenced in 40 CFR 51.308(f)(1)(i) and provides updated natural conditions estimates for each Class I area.
The core component of a regional haze SIP submission is a long-term strategy that addresses regional haze in each Class I area within a state's borders and each Class I area that may be affected by emissions from the state. The long-term strategy “must include the enforceable emissions limitations, compliance schedules, and other measures that are necessary to make reasonable progress, as determined pursuant to (f)(2)(i) through (iv).”
Section 51.308(f)(2)(i) provides the requirements for the four-factor analysis. The first step of this analysis entails selecting the sources to be evaluated for emission reduction measures; to this end, states should
While states have the option to analyze all sources, the 2019 Guidance explains that “an analysis of control measures is not required for every source in each implementation period,” and that “[s]electing a set of sources for analysis of control measures in each implementation period is . . . consistent with the Regional Haze Rule, which sets up an iterative planning process and anticipates that a state may not need to analyze control measures for all its sources in a given SIP revision.”
The EPA explained in the 2021 Clarifications Memo that each state has an obligation to submit a long-term strategy that addresses the regional haze visibility impairment that results from emissions from within that state. Thus, source selection should focus on the in-state contribution to visibility impairment and be designed to capture a meaningful portion of the state's total contribution to visibility impairment in Class I areas. A state should not decline to select its largest in-state sources on the basis that there are even larger out-of-state contributors.
Thus, while states have discretion to choose any source selection methodology that is reasonable, whatever choices they make should be reasonably explained. To this end, 40 CFR 51.308(f)(2)(i) requires that a state's SIP submission include “a description of the criteria it used to determine which sources or groups of sources it evaluated.” The technical basis for source selection, which may include methods for quantifying potential visibility impacts such as emissions divided by distance metrics, trajectory analyses, residence time analyses, and/or photochemical modeling, must also be appropriately documented, as required by 40 CFR 51.308(f)(2)(iii).
Once a state has selected the set of sources, the next step is to determine the emissions reduction measures for those sources that are necessary to make reasonable progress for the second implementation period.
The EPA's 2021 Clarifications Memo provides further guidance on what constitutes a reasonable set of control options for consideration: “A reasonable four-factor analysis will consider the full range of potentially reasonable options for reducing emissions.”
After identifying a reasonable set of potential control options for the sources it has selected, a state then collects
As explained above, 40 CFR 51.308(f)(2)(i) requires states to determine the emission reduction measures for sources that are necessary to make reasonable progress by considering the four factors. Pursuant to 40 CFR 51.308(f)(2), measures that are necessary to make reasonable progress towards the national visibility goal must be included in a state's long-term strategy and in its SIP.
As with source selection, the characterization of information on each of the factors is also subject to the documentation requirement in 40 CFR 51.308(f)(2)(iii). The reasonable progress analysis, including source selection, information gathering, characterization of the four statutory factors (and potentially visibility), balancing of the four factors, and selection of the emission reduction measures that represent reasonable progress, is a technically complex exercise, but also a flexible one that provides states with bounded discretion to design and implement approaches appropriate to their circumstances. Given this flexibility, 40 CFR 51.308(f)(2)(iii) plays an important function in requiring a state to document the technical basis for its decision making so that the public and the EPA can comprehend and evaluate the information and analysis the state relied upon to determine what emission reduction measures must be in place to make reasonable progress. The technical documentation must include the modeling, monitoring, cost, engineering, and emissions information on which the state relied to determine the measures necessary to make reasonable progress. This documentation requirement can be met through the provision of and reliance on technical analyses developed through a regional planning process, so long as that process and its output has been approved by all state participants. In addition to the explicit regulatory requirement to document the technical basis of their reasonable progress determinations, states are also subject to the general principle that those determinations must be reasonably moored to the statute.
The four statutory factors (and potentially visibility) are used to determine what emission reduction measures for selected sources must be included in a state's long-term strategy for making reasonable progress. Additionally, the Regional Haze Rule at 40 CFR 51.308(f)(2)(iv) separately provides five “additional factors”
Because the air pollution that causes regional haze crosses state boundaries, 40 CFR 51.308(f)(2)(ii) requires a state to consult with other states that also have emissions that are reasonably anticipated to contribute to visibility impairment in a given Class I area. Consultation allows for each state that impacts visibility in an area to share whatever technical information, analyses, and control determinations may be necessary to develop coordinated emission management strategies. This coordination may be managed through inter- and intra-regional planning organization consultation and the development of regional emissions strategies; additional consultations between states outside of regional planning organization processes may also occur. If a state, pursuant to consultation, agrees that certain measures (
Reasonable progress goals “measure the progress that is projected to be achieved by the control measures states have determined are necessary to make reasonable progress based on a four-factor analysis.”
For the second implementation period, the reasonable progress goals are set for 2028. Reasonable progress goals are not enforceable targets, 40 CFR 51.308(f)(3)(iii); rather, they “provide a way for the states to check the projected outcome of the [long-term strategy] against the goals for visibility improvement.”
So that reasonable progress goals may also serve as a metric for assessing the amount of progress a state is making towards the national visibility goal, the Regional Haze Rule requires states with Class I areas to compare the 2028 reasonable progress goal for the most impaired days to the corresponding point on the uniform rate of progress line (representing visibility conditions in 2028 if visibility were to improve at a linear rate from conditions in the baseline period of 2000-2004 to natural visibility conditions in 2064). If the most impaired days reasonable progress goal in 2028 is above the uniform rate of progress (
The 2017 Regional Haze Rule, 2019 Guidance, and 2021 Clarifications Memo also explain that projecting a reasonable progress goal that is on or below the uniform rate of progress based on only on-the-books and/or on-the-way control measures (
Section 51.308(f)(6) requires states to have certain strategies and elements in place for assessing and reporting on visibility. Individual requirements under this section apply either to states with Class I areas within their borders, states with no Class I areas but that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area, or both. A state with Class I areas within its borders must submit with its SIP revision a monitoring strategy for measuring, characterizing, and reporting regional haze visibility impairment that is representative of all Class I areas within the state. SIP revisions for such states must also provide for the establishment of any additional monitoring sites or equipment needed to assess visibility conditions in Class I areas, as well as reporting of all visibility monitoring data to the EPA at least annually. Compliance with the monitoring strategy requirement may be met through a state's participation in the Interagency Monitoring of Protected Visual Environments (IMPROVE) monitoring network, which is used to measure visibility impairment caused by air pollution at the 156 Class I areas covered by the visibility program.
All states' SIPs must provide for procedures by which monitoring data and other information are used to determine the contribution of emissions from within the state to regional haze visibility impairment in affected Class I areas.
Separate from the requirements related to monitoring for regional haze purposes under 40 CFR 51.308(f)(6), the Regional Haze Rule also contains a requirement at 40 CFR 51.308(f)(4) related to any additional monitoring that may be needed to address visibility impairment in Class I areas from a single source or a small group of sources. This is called “reasonably attributable visibility impairment.”
Section 51.308(f)(5) requires a state's regional haze SIP revision to address the requirements of paragraphs 40 CFR 51.308(g)(1) through (5) so that the plan revision due in 2021 will serve also as a progress report addressing the period since submission of the progress report for the first implementation period. The regional haze progress report requirement is designed to inform the public and the EPA about a state's implementation of its existing long-term strategy and whether such implementation is in fact resulting in the expected visibility improvement.
A core component of the progress report requirements is an assessment of changes in visibility conditions on the
Similarly, states must provide analyses tracking the change in emissions of pollutants contributing to visibility impairment from all sources and activities within the state over the period since they submitted their first implementation period progress reports.
Clean Air Act section 169A(d) requires that before a state holds a public hearing on a proposed regional haze SIP revision, it must consult with the appropriate Federal Land Manager or Federal Land Managers; pursuant to that consultation, the state must include a summary of the Federal Land Managers' conclusions and recommendations in the notice to the public. Consistent with this statutory requirement, the Regional Haze Rule also requires that states “provide the [Federal Land Manager] with an opportunity for consultation, in person and at a point early enough in the State's policy analyses of its long-term strategy emission reduction obligation so that information and recommendations provided by the [Federal Land Manager] can meaningfully inform the State's decisions on the long-term strategy.”
Oregon submitted its regional haze SIP for the first implementation period (2008 through 2018) on December 9, 2010, as supplemented on February 01, 2011. The Clean Air Act required that the initial round of regional haze plans include, among other things, a long-term strategy for making reasonable progress and best available retrofit technology requirements for certain older stationary sources, where applicable.
On April 29, 2022, and November 22, 2023, Oregon submitted revisions to the SIP to address its regional haze obligations for the second implementation period (2018 through 2028).
The following sections of this preamble describe the Oregon SIP submission, including air quality
Section 169A(b)(2) of the Clean Air Act requires each state in which any Class I area is located or “the emissions from which may reasonably be anticipated to cause or contribute to any impairment of visibility” in a Class I area to have a plan for making reasonable progress toward the national visibility goal. The Regional Haze Rule implements this statutory requirement at 40 CFR 51.308(f), which provides that each state's plan “must address regional haze in each mandatory Class I Federal area located within the State and in each mandatory Class I Federal area located outside the State that may be affected by emissions from within the State,” and (f)(2), which requires each state's plan to include a long-term strategy that addresses regional haze in such Class I areas.
Oregon has 12 designated Class I areas, including Crater Lake National Park, managed by the National Parks Service, and 11 wilderness areas, managed by the U.S. Forest Service, or in the case of Hells Canyon Wilderness Area, managed jointly by the U.S. Forest Service and the Bureau of Land Management.
The Mt. Hood Wilderness Area consists of 47,160 acres on the slopes of Mt. Hood in the northern Oregon Cascades. Wilderness elevations range from 3,426 meters (m) (11,237 feet (ft.)) on the summit of Mt. Hood down to almost 600 m (2,000 ft.) at the western boundary. It is almost adjacent to the Portland, Oregon metropolitan area; the westernmost boundary is about 20 kilometers (km) east of the Portland, Oregon suburb of Sandy and 40 km from the heavily populated metropolitan center, elevation 100 m (300 ft.). Visitation to the Mt. Hood Wilderness Area is approximately 50,000 visitors a year, primarily between May and October. Most visitors come from the Portland/Vancouver area that has a population of approximately 2 million.
The Mt. Jefferson Wilderness Area consists of 107,008 acres on the crest of the Cascade Range in central Oregon. Its southern boundary is a few km north of the northern boundary of the Mt. Washington Wilderness and it extends 40 to 50 km north along the Cascade crest. West of the crest, it consists primarily of the eastern side of the North Santiam River headwaters basin that connects to the Willamette Valley source region near Salem, Oregon, 100 km (60 miles (mi)) to the west. East of the crest it occupies the western slopes of the Metolius River drainage that connects eastern slopes with Deschutes River in eastern Oregon. The highest elevation is 3,200 m (10,497 ft.) at the summit of Mt. Jefferson in the northern part of the Wilderness. The lowest Wilderness elevations are near 1,000 m (3,000 ft.) along the western boundary in the North Santiam headwaters basin and along the eastern boundary in the Metolius River basin.
The Mt. Washington Wilderness Area consists of 52,516 acres on the crest of the Cascade Range in central Oregon. Like the Three Sisters Wilderness that it borders to the south, it includes headwaters tributaries of the McKenzie River that flow west into the Willamette Valley near Eugene and connect the Wilderness with that source region. On the east side, eastern slopes of the Cascades descend to the Deschutes River near Bend. The highest Wilderness elevation is 2,376 m (7,794 ft.) at the summit of Mt. Washington. The lowest elevations are near 900 m (3,000 ft.) in the upper headwaters basin of the McKenzie River.
The Three Sisters Wilderness Area consists of 285,202 acres abreast the crest of the Cascade Range in central Oregon. It includes headwaters tributaries of the McKenzie River that flow west into the Willamette Valley near Eugene and connect the Wilderness with that source region. On the east side, streams flow east to the Deschutes River near Bend. The highest crest elevation is 3,158 m (10,358 ft.) at the summit of the South Sister. The lowest elevations are near 600 m (2,000 ft.) where the South Fork of the McKenzie River exits the Wilderness on the west boundary. This is about 500 m (1,600 ft.) above the Willamette Valley at Eugene 70 km (40 mi) west.
The 52,337 acre Diamond Peak Wilderness Area straddles the Cascade Range 50 km (30 mi) north of Crater Lake National Park. The highest crest elevation in the Wilderness is 2,666 m (8,744 ft.) at Diamond Peak, which is also the highest summit in this region of the Cascade Range. The lowest elevations are near 1,450 m (5,000 ft.) where streams exit the Wilderness on the west side. On the east side, the Wilderness is bordered by mountain lakes with elevations from 1,459 m to 1,693 m (4,786 to 5,553 ft.). The area includes headwaters of the Middle Fork of the Willamette River that flows to the Willamette Valley near Eugene, elevation 100 m (300 ft.) and 90 km (60 mi) distant. Wilderness elevations are thus some 1,400 m (4,600 ft.) above the Willamette Valley floor. East of the Cascade crest, streams flow to the Deschutes River in eastern Oregon.
Crater Lake National Park is the only national park in Oregon. The park was established on May 22, 1902, and now consists of 183,315 acres. It is located in southwestern Oregon on the crest of the Cascade Mountain range, 100 miles east of the Pacific Ocean. The crater's rim elevations range from about 900 to 1,873 ft. above lake level. The highest park elevation is 8,929 ft. at the peak of Mt. Scott, in the eastern park area. The National Park includes headwaters of the Rogue River that flows southwest towards the Medford/Grants Pass area, and Sun Creek/Wood River that flows southeast to the Klamath Falls area.
The Mountain Lakes Wilderness Area, encompassing 23,071 acres, is a relatively small Class I area in southern Oregon, 50 km (30 mi) south of Crater Lake National Park. It consists of several peaks with a highest elevation of 2,502 m (8,208 ft.) at the crest of Aspen Butte. The lowest elevations are near 1,500 m (5,000 ft.). Primary drainages are Varney Creek and Moss Creek that flow into the Upper Klamath Lake, 3 km northeast of the Wilderness boundary.
The Gearhart Mountain Wilderness Area consists of 22,809 acres on the flanks of Gearhart Mountain in south central Oregon, primarily the northern
The Kalmiopsis Wilderness Area consists of 179,700 acres and is located in the Klamath Mountains of southwestern Oregon, part of the coastal temperate rainforest zone that lies between the Pacific Ocean and the east side of the coast ranges in northwestern U.S. and Canada. Its western boundary is 20 to 25 km (12 to 15 mi) from the coast. Its easternmost extent is about 40 km (25 mi) from the coast. Elevations range from about 300 m (900 ft.) on the western boundary where the Chetco River exits the Wilderness towards the Pacific Ocean 25 to 30 miles further west, to 1,554 m (5,098 ft.) on Pearsoll Peak on the eastern Wilderness boundary. The terrain in the Wilderness is steep canyons and long broad ridges. The Wilderness is mostly west of the general crest of the coast range, thus exposed to precipitation caused by lifting of eastward moving maritime air, primarily during the winter. Precipitation ranges from 150 to 350 cm (60 to 140 inches (in)) annually, depending on elevation.
The Strawberry Mountain Wilderness Area consists of 69,350 acres in eastern Oregon, just east of John Day. The Wilderness comprises most of the Strawberry Mountain Range. The terrain is rugged, with elevations ranging from 1,220 m (4,000 ft.) to 2,755 m (9,038 ft.) at the summit of Strawberry Mountain. The Wilderness borders the upper John Day River valley to the north.
The Eagle Cap Wilderness Area consists of 360,275 acres in northeastern Oregon. The terrain is characterized by bare peaks and ridges and U-shaped glaciated valleys. Elevations range from 5,000 ft. in lower valleys to near 10,000 ft. at the highest mountain summits. The Lostine and Minam Rivers flow north from the center of the Wilderness towards Pendleton and the Columbia, 130 km northwest.
The Hells Canyon Wilderness Area consists of 214,944 acres and is located on the Oregon-Idaho border. The Snake River divides the wilderness, with 131,133 acres in Oregon, and 83,811 acres in Idaho. The Snake River canyon is the deepest river gorge in North America. The higher terrain is located on the Oregon side. Popular Oregon-side viewpoints are McGraw, Hat Point, and Somers Point.
Haze species in Oregon are measured and analyzed via the Interagency Monitoring of Protected Visual Environments (IMPROVE) network.
The Oregon Department of Environmental Quality (ODEQ) used a Q/d screening approach in developing a list of sources for potential four-factor analysis, as discussed in more detail in section IV.E.a of this preamble. Q/d is equal to the emissions (Q) in tons per year of visibility-impairing pollutants (NO
ODEQ determined that this approach based on permitted emissions or potential to emit was more rigorous and environmentally protective than relying
Section 51.308(f)(1) requires states to determine the following for “each mandatory Class I Federal area located within the State:” baseline visibility conditions for the most impaired and clearest days, natural visibility conditions for the most impaired and clearest days, progress to date for the most impaired and clearest days, the differences between current visibility conditions and natural visibility conditions, and the uniform rate of progress. This section also provides the option for states to propose adjustments to the uniform rate of progress line for a Class I area to account for visibility impacts from anthropogenic sources outside the U.S. and/or the impacts from wildland prescribed fires that were conducted for certain, specified objectives.
Oregon's SIP submission addresses baseline, current and natural visibility conditions for each of these IMPROVE stations as required by the 2017 Regional Haze Rule and the EPA's technical guidance on tracking visibility progress. ODEQ reviewed visibility data from 2000 through 2018 and determined that current visibility at all Class I areas for both the clearest and most impaired days has improved since the baseline period. In addition, all areas have met the uniform rate of progress (URP) for 2018.
The EPA is proposing to find that Oregon has submitted a regional haze plan that meets the requirements of 40 CFR 51.308(f)(1) related to the calculations of baseline, current, and natural visibility conditions; progress to date; and the uniform rate of progress for the second implementation period.
Each state having a Class I area within its borders or emissions that may affect visibility in a Class I area must develop a long-term strategy for making reasonable progress towards the national visibility goal.
The following paragraphs summarize how the Oregon submissions addressed the requirements of 40 CFR 51.308(f)(2)(i). The EPA's evaluation of the Oregon submission is contained in section IV.E.b. of this preamble. The Oregon submission includes analysis and modeling conducted by the State, the EPA and the WRAP, a narrative description of the State's long-term strategy, and enforceable emissions limitations embodied in State administrative orders and permits.
States may rely on technical information developed by the regional planning organizations of which they are members to select sources for four-factor analysis and to conduct that analysis, as well as to satisfy the documentation requirements under 40 CFR 51.308(f). Where a regional planning organization has performed source selection and/or four-factor analyses (or considered the five additional factors in 40 CFR 51.308(f)(2)(iv)) for its member states, those states may rely on the regional planning organization's analyses for the purpose of satisfying the requirements of 40 CFR 51.308(f)(2)(i) so long as the states have a reasonable basis to do so and all state participants in the regional planning organization process have approved the technical analyses.
The WRAP is the regional planning organization to which Oregon belongs. The WRAP coordinated technical services, modeling, data management, and consulting during the second planning period. The WRAP developed technical tools, emission inventories, and air quality modeling with input and involvement from states in the region. Oregon has participated actively in the WRAP and used WRAP technical products to help develop the Oregon submissions.
In the submissions, Oregon conducted technical analyses to identify sources and source categories with the largest potential to contribute to visibility impairment at Class I areas in Oregon and other states. Based on the composition of regional haze forming pollutants at the IMPROVE stations, ODEQ determined that the majority of U.S. anthropogenic contribution to
In addition to selecting and evaluating stationary sources for four-factor analysis, Oregon also used EPA emissions inventory data from 2017 to review emissions from mobile sources such as nonroad vehicles (
With respect to analyzing stationary sources, Oregon used a Q/d methodology to select sources for evaluation under the four statutory factors. This methodology does not take into consideration topography, transport direction/pathway and dispersion, and photochemical processes. However, it is an adequate tool for source selection and is consistent with the EPA guidance. Specifically, Oregon's submission determined “Q/d” where “Q” is a source's emissions and “d” is the distance from the source to the nearest Class I area. Oregon identified permitted point sources by their Q/d values, calculated using the sum of all emissions of sulfur dioxide, nitrogen oxides and particulate matter less than 10 microns in diameter (as measured in tons per year), divided by the distance to a Class I area (measured in kilometers from the facility to the nearest boundary of the Class I area) for all Class I areas within 400 km of the source. Rather than using actual emissions to screen facilities in, Oregon was more conservative and used permitted emissions, called Plant Site Emissions Limits (PSELs) to effectively screen in more sources than would otherwise have been identified.
As discussed in more detail in section IV.E.b of this preamble, Oregon selected 32 sources for review using the Q/d screening methodology. Of these 32 sources, several incorporated enforceable emissions limits into their permits or in agreed orders resulting in PSELs below the screening threshold, and several had recently imposed controls already in place, with the remaining 23 sources conducting four-factor analyses. ODEQ reviewed the four-factor analyses submitted by the sources and found that 6 of the sources that additional controls were above the $10,000 cost per ton reduction threshold established by ODEQ. For the remaining 17 sources, ODEQ determined that additional controls might be cost effective and initiated a second round of review evaluating 43 emissions units and a total of 62 control devices. During this second round of review, an additional 4 sources incorporated facility-wide enforceable emissions limits effectively lowering PSELs below the screening threshold, and ODEQ negotiated permit modifications or agreed orders to install control devices or other emissions reductions at the remaining 13 facilities described in more detail in section IV.E.b. of this preamble.
After reviewing the submissions, the EPA proposes to determine that Oregon's long-term strategy includes the enforceable emissions limitations, compliance schedules, and other measures necessary to make reasonable progress. By extension, the EPA proposes to determine that Oregon's selection of sources for evaluation under the four statutory factors was reasonable and consistent with the requirements of the RHR and proposes to determine that Oregon determined the controls necessary for reasonable progress based on a reasonable consideration of the four factors, as described in the evaluation below.
The EPA is proposing to find that Oregon has satisfied the requirements of 40 CFR 51.308(f)(2)(i) related to evaluating sources and determining the emission reduction measures that are necessary to make reasonable progress by considering the four statutory factors. The EPA is proposing to find that Oregon has satisfied the four-factor analysis requirement through its evaluation and actions documented in the Oregon regional haze plan for the second planning period. Section 51.308(f)(2)(i) requires states to evaluate and determine the emission reduction measures that are necessary to make reasonable progress by considering the four statutory factors to sources in a control analysis. As laid out in further detail in the following paragraphs of this preamble, the EPA is proposing to find that the Oregon submission, as supplemented, satisfies the requirement of 40 CFR 51.308(f)(2)(i). The emission reduction measures that are necessary to
On May 28, 2021, Oregon opened public comment on revisions to the Division 223 Regional Haze rules to update the provisions for the second regional haze planning period.
In addition to removing outdated provisions, Oregon added new rule provisions to implement the regional haze program for the second implementation period. OAR 340-223-0100
OAR 340-223-0110
• Accept federally enforceable reductions of combined plant site emission limits of regional haze pollutants to bring the source's Q/d below 5.00. A source may take a PSEL reduction below the generic PSEL to achieve an overall PSEL of regional haze pollutants below a Q/d of 5.00. A source's Q/d will be considered to be brought below 5.00 when Q/d is below 5.00 using the calculation in OAR 340-223-0100(2), except that the Q factor shall be calculated by adding the plant site emission limits for regional haze pollutants as stated in the stipulated agreement and final order;
• Install controls identified by the source in a four-factor analysis as cost-effective for that source for reducing regional haze pollutants. ODEQ must agree that the controls identified will result in the greatest cost-effective emissions reduction at the identified emissions unit and ODEQ must establish a timeline for installation of those controls that is the fastest practicable timeline for installation of the identified controls and that is no later than July 31, 2026;
• Install controls or reduce emissions for regional haze pollutants that ODEQ determines, in its sole discretion, provide equivalent emissions reductions to controls that would be identified as cost effective for that source following the adjustment and review of a four-factor analysis. ODEQ must establish a timeline for installation of those controls that is the fastest practicable timeline for installation of the identified controls and that is no later than July 31, 2026;
• Maintain controls that the source has already installed to control regional haze pollutants or maintain reduced emissions of regional haze pollutants that ODEQ determines, in its sole discretion, have provided and will continue to provide equivalent emissions reductions to controls that would be identified as cost effective for that source following adjustment and review of a four-factor analysis; or
• Replace an emissions unit with a new emissions unit that meets the emission limits and requirements of the most recent applicable standard in place at the time of the permitting of the new emissions unit. ODEQ must establish a timeline for installation of the new emissions unit that is the fastest practicable timeline for installation of the new emissions unit and that is no later than July 31, 2031.
OAR 340-223-0120
We have reviewed the revisions to the Division 223 Regional Haze Rules and we are proposing to determine that they provide Oregon with adequate authority to implement the regional haze program and are consistent with CAA requirements and the EPA's Regional Haze Rule. ODEQ submitted the revised Division 223 Regional Haze Rules for incorporation by reference into the SIP at 40 CFR 52.1970(c)
Pursuant to OAR 340-223-0100
As previously noted, ODEQ took a more inclusive approach of using permitted emissions limits, PSELs, to screen facilities for source selection. This yielded a much larger pool of facilities in the initial screening rather than using projected actuals as suggested by the 2019 Guidance.
The EPA proposes to determine that Oregon's source selection was reasonable and consistent with the requirements of 40 CFR 51.308(f)(2)(i). ODEQ included a thorough description of its source selection methodology. ODEQ selected 23 sources for analysis under the four factors. Considering these sources' PSELs and recent actual emissions, ODEQ's source selection methodology targeted the sources with the highest potential to impair visibility at mandatory Class 1 areas. Conversely, those sources ODEQ screened out have comparatively limited potential impacts on visibility, specifically, all facilities that accepted emission limits to screen out of analysis would have been screened out of analysis using a Q/d <5 of actual emissions. Thus, the EPA proposes to determine that Oregon's application of OAR 340-223-0110(2)(b)(A) is a reasonable means of preventing future emissions growth for facilities with relatively low Q/d values based on actual current emissions.
In certain circumstances, states may properly determine that a particular facility already has effective emission control technology in place.
In a May 28, 2020, letter from ODEQ to Klamath Energy, ODEQ acknowledged plans by the facility to install ultra low-NO
As discussed in Oregon's May 18, 2020, letter included in the docket for this action, the Ash Grove Cement, Durkee plant recently underwent a control analysis and ODEQ determined that no additional controls required through the regional haze second implementation period were likely to be effective or reasonable.
Under OAR 340-223-0110(1) all sources subject to the requirements of the regional haze second implementation period, as determined in OAR 340-223-0100
The four-factor analyses submitted to ODEQ pursuant to 340-223-0120, with the exception of Owens-Brockway and Gilchrist Forest Products, indicated that additional NO
• Establishing a PSEL for SO
• Installation of a Continuous Emission Monitoring System (CEMS) on Boiler 1 and Boiler 2 to measure NO
• Installation of combustion improvement project or projects designed to achieve emissions reductions of NO
• Installation of CEMS on the north and south boilers by July 31, 2022.
• NO
• If Permittee is able to finalize a new power purchase agreement (PPA), Permittee shall notify ODEQ in writing within 14 calendar days. Or, if no new PPA is signed, Permittee shall cease operation by January 1, 2027, and request cancellation of their Title V operating permit.
• If a new PPA is signed, then no later than 180 days after notifying ODEQ of the new PPA, the Permittee shall submit a complete application for installation of NO
• By December 31, 2024, install low NO
• During 2025, the permittee shall conduct source testing to verify the NO
• By July 31, 2026, the permittee shall complete a NO
• Or, the permittee shall complete replacement of EU-11, EU-13, and EU-18 with new technology no later than July 3l, 2031. PSELs for the replacement shall be 889 tons per year of NO
• NO
• By December 31, 2024, the permittee shall replace the existing Yankee burner with a low NO
• For Paper Machine 6: TAD1 Burner and TAD2 Burner, and Paper Machine 7: TAD1 Burner and TAD 2 Burner, the permittee shall have a NO
• By July 31, 2026, the permittee shall install low NO
• Effective July 31, 2022, the permittee's combined assigned PSELs for the power boiler, package boiler, lime kilns and recovery furnace shall be 237 tons per year for SO
• On the effective date of the SAFO, the permittee agrees to a fuel restriction to use natural gas for the power boiler and package boiler, except that it may operate on ultra-low sulfur diesel for no more than 48 hours per year and when needed for natural gas curtailments.
• On the effective date of the SAFO, the permittee agrees to a fuel restriction to use natural gas and black liquor solids for the recovery furnace, except that it may operate on ultra-low sulfur diesel for no more than 48 hours per year and when needed for natural gas curtailments.
• On the effective date of the SAFO, the permittee agrees to a fuel restriction to use natural gas, product turpentine, and product methanol for the lime kilns, except that it may operate the lime kilns on ultra-low sulfur diesel for no more than 48 hours per year and when needed for natural gas curtailments.
• By December 31, 2022, the permittee shall install CEMS and measure the emissions of NO
• On and after January 31, 2025, International Paper shall meet the following emission limit: a 0.25 lb NO
• On and after December 31, 2025, the assigned PSEL for the power boiler is: 179 tons per year for NO
In Oregon's November 22, 2023 supplement to the regional haze SIP,
• Permanent shutdown of Furnace A.
• PSEL limit for combined PM
• Effective August 1, 2022, the permittee's PSELs shall be 20 tons per year for PM
• On the effective date of the SAFO, the permittee agrees to a restriction that the only fuel the permittee may combust in Boiler 1, Boiler 2 and Boiler 3 is natural gas, except for ultra-low sulfur diesel for no more than 48 hours per year.
• By July 31, 2026, install and maintain SCR and an associated monitoring system on both Turbines 13C and 13D.
• Alternatively, by no later than July 31, 2031, replace Turbines 13C and 13D with new technology that meets the most recent permitting standards and requirements for new emission units (including but not limited to New Source Performance Standards) in place at the time of the respondent submitting a permit application for the project.
• Installation of an electrostatic precipitator on boilers B-1 and B-2.
• A PM
• Under the SAFO, the permittee agrees to replace two reciprocating internal combustion engines to meet the emission limits and requirements of the most recent New Source Performance Standard. No later than July 1, 2026, ODEQ and the permittee will meet to discuss what permitting needs are necessary for the replacement, with replacement complete no later than July 31, 2031.
• By June 30, 2024, the permittee shall eliminate the use of #6 fuel oil.
• No later than July 31, 2031, replace power boiler #2 with a new emissions unit that will achieve a limit of 0.036 lbs NO
• Upon replacement of power boiler #2, limit emissions from power boiler #1 to no more than 27 tons of NO
• By July 31, 2022, the permittee shall install CEMS to measure the emissions of NO
• From January 31, 2023, until June 30, 2025, the permittee shall meet the following emission limits: 0.30 lb NO
• By January 31, 2024, the permittee shall notify ODEQ whether the permittee will comply with the emission limits below using boiler optimization or through installation of SNCR. If permittee determines SNCR is necessary to meet emission limits, SNCR shall be installed, permitted, and operational by June 30, 2025.
• On and after June 30, 2025, the permittee shall meet the following emission limits: 0.27 lb NO
The EPA notes that each of the controls and emission limits discussed above limit emissions of one or more of the “round II regional haze pollutants.” In most cases, Oregon determined that NO
In particular, Oregon determined that PM
In other cases, Oregon determined that the nature and mode of operation of particular sources yielded insignificant emissions. For example, at the Boise Cascade Wood Products, LLC's Elgin and Medford Mills the sulfur content of wood derived fuel is low, and the majority of the sulfur content is combined with the ash products of combustion.
ODEQ reviewed the four-factor analyses from the facilities and adjusted for consistency with basic factors such as using current prime rate (3.25%), 30-year lifetime, and calculation of cost effective controls using PSEL emissions limits rather than actual emissions. After initial review, ODEQ ruled out control devices for which the cost of control was greater than $10,000 per ton or provided an emissions reduction (using emissions at PSEL) of less than 20 tons per year. In letters sent August and September 2020, ODEQ notified 6 facilities with the determination that the agency did not find any controls deemed cost effective at the $10,000/ton threshold.
The EPA reviewed ODEQ's four-factor analyses, determinations of controls necessary for reasonable progress, and submitted SAFOs and permit conditions. Based on this review, the EPA proposes to determine that Oregon's long-term strategy meets the requirements of 40 CFR 51.308(f)(2)(i) through (iii). Oregon submitted numerous four-factor analyses and demonstrated that its determination of controls necessary for reasonable progress were an outgrowth of its consideration of the four statutory factors. Notably, Oregon's $10,000 cost per ton threshold is one of, if not the highest, cost thresholds established by any state specifically for evaluating controls for the regional haze program. Ultimately, Oregon imposed new, substantive controls at 13 facilities (covering over 36 emissions units) and established emissions limits at an additional 10 facilities with low actual emissions to ensure that future emissions do not rise above the screening threshold.
The EPA acknowledges that the final control measures imposed by the SAFOs and permits described in the preceding paragraphs in some cases differ from Oregon's preliminary control determinations contained in ODEQ's January 21, 2021, letters. We reviewed the four-factor analyses and Chapter 3.7 of Oregon's regional haze SIP,
Based on this review, the changes from preliminary to final control determinations appear reasonable and consistent with the Regional Haze Rule. Importantly, Oregon's iterative process to identify and adopt technically feasible, cost-effective controls reinforces that the State considered the four statutory factors to determine the controls necessary for reasonable progress.
Considering ODEQ's conservative screening methodology to use permitted emissions limits, the high $10,000 cost per ton reduction threshold Oregon used in reviewing the four-factor analyses submitted by the sources, the conservative methodology of evaluating controls using permitted emissions limits, the number of new emissions controls imposed specifically under the regional haze program, and the significant emissions reductions achieved through the SAFOs described in the previous paragraphs, we are proposing to determine that Oregon satisfied the requirement to determine the emission reduction measures that are necessary to make reasonable progress by considering the costs of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any potentially affected anthropogenic source of visibility impairment.
The consultation requirements of 40 CFR 51.308(f)(2)(ii) provide that states must consult with other states that are reasonably anticipated to contribute to visibility impairment in a Class I area to develop coordinated emission management strategies containing the emission reductions measures that are necessary to make reasonable progress. Section 51.308(f)(2)(ii)(A) and (B) require states to consider the emission reduction measures identified by other states as necessary for reasonable progress and to include agreed upon measures in their SIPs, respectively. Section 51.308(f)(2)(ii)(C) speaks to what happens if states cannot agree on
Oregon participated in and provided documentation of the WRAP intra- and inter-regional planning organization consultation processes in the submission.
The documentation requirement of 40 CFR 51.308(f)(2)(iii) provides that states may meet their obligations to document the technical bases on which they are relying to determine the emission reduction measures that are necessary to make reasonable progress through a regional planning organization, as long as the process has been “approved by all State participants.” As explained above, Oregon chose to rely on WRAP technical information, modeling, and analysis to support development of its long-term strategy, as well as the State's own analyses. The WRAP technical analyses on which Oregon relied are listed in the State's SIP submissions and include source contribution assessments, information on each of the four factors and visibility modeling information for selected sources, and evaluations of emission reduction strategies based on the anticipated control measures.
Section 51.308(f)(2)(iii) also requires that the emissions information considered to determine the measures that are necessary to make reasonable progress include information on emissions for the most recent year for which the state has submitted triennial emissions data to the EPA (or a more recent year), with a 12-month exemption period for newly submitted data. Oregon's SIP submission included 2017 NEI emission data for regional haze forming pollutants. Based on Oregon's consideration and analysis of emissions data in their SIP submissions, the EPA proposes to find that Oregon has satisfied the emissions information requirement in 40 CFR 51.308(f)(2)(iii).
We also propose to find that Oregon reasonably considered the five additional factors in 40 CFR 51.308(f)(2)(iv) in developing its long-term strategy. Pursuant to 40 CFR51.308(f)(2)(iv)(A), Oregon detailed the existing and ongoing State and Federal emission control programs that contribute to emission reductions through 2028. The Oregon regional haze SIP highlights the State's aggressive programs for mobile sources, including Oregon's adoption of California rules for medium- and heavy-duty on-road vehicles, Low Emission Vehicle and ZEV standards for passenger vehicles, and a state clean fuels program.
Pursuant to 40 CFR 51.308(f)(2)(iv)(C), source retirements and replacement schedules are addressed in Chapter 4.4
In considering smoke management as required in 40 CFR 51.308(f)(2)(iv)(D), Oregon explained, in Chapter 4.6
Oregon considered the anticipated net effect of projected changes in emissions as required by 40 CFR 51.308(f)(2)(iv)(E) by discussing, in Chapter 2.5
Because Oregon has reasonably considered each of the five additional factors the EPA proposes to find that Oregon has satisfied the requirements of 40 CFR 51.308(f)(2)(iv).
Section 51.308(f)(3) contains the requirements pertaining to reasonable progress goals for each Class I area. Because Oregon is host to Class I areas, it is subject to both 40 CFR 51.308(f)(3)(i) and, potentially, to (ii). Section 51.308(f)(3)(i) requires a state in which a Class I area is located to establish reasonable progress goals—one each for the most impaired and clearest days—reflecting the visibility conditions that will be achieved at the end of the implementation period as a result of the emission limitations, compliance schedules and other measures required under paragraph (f)(2) to be in states' long-term strategies, as well as implementation of other Clean Air Act requirements. The long-term strategies as reflected by the reasonable progress goals must provide for an improvement in visibility on the most impaired days relative to the baseline period and ensure no degradation on the clearest days relative to the baseline period. Section
Chapters 2.1
The 2017 Regional Haze Rule included a provision that allows states to propose an adjustment to the glidepath to account for impacts from anthropogenic sources outside the U.S. if the adjustment has been developed through scientifically valid data and methods. The EPA's visibility guidance states “to calculate the proposed adjustment(s), the State must add the estimated impact(s) to the natural visibility condition and compare the baseline visibility condition for the most impaired days to the resulting sum.” In 2019, the EPA conducted modeling to assist states in the development of Regional Haze SIPs for the second implementation period. In particular, the modeling provided the EPA's first comprehensive estimate of international anthropogenic emissions contributions to visibility impairment at Class I areas.
As noted in Chapter 2.3
As noted in the RHR at 40 CFR 51.308(f)(3)(iii), the reasonable progress goals are not directly enforceable, but will be considered by the Administrator in evaluating the adequacy of the measures in the implementation plan in providing for reasonable progress towards achieving natural visibility conditions at specific Class I areas. Regardless of whether we use an adjusted or unadjusted URP glidepath to evaluate Oregon's 2028 RPGs for the most impaired days, the regulatory purpose of the RPGs has been fulfilled because visibility conditions for all IMPROVE stations have improved since the baseline period.
That said, because Oregon did not adjust the glidepath and because the 2028 RPGs for several Class I areas are above the unadjusted glidepath, the demonstration requirement under 40 CFR 51.308(f)(3)(ii)(A) is triggered. Oregon addressed this obligation in Chapter 5.2
The EPA acknowledges Oregon's position. The IMPROVE monitoring stations in the Cascades (THSI and CRLA) and Kalmiopsis (KALM) that are projected to have 2028 RPGs at or above the unadjusted glidepath are the same IMPROVE monitoring stations that Oregon demonstrated are highly impacted by international marine shipping as described in section IV.E.a. of this preamble. These emissions are projected to decrease by 77% due to new standards for international marine shipping fuels which became effective in 2020.
Section 51.308(f)(3)(ii)(A) requires that the state provide an assessment of the number of years it would take to attain natural visibility conditions if visibility improvement were to continue at the rate of progress selected by the state as reasonable for the implementation period. Because these two source categories described in the prior paragraphs, mobile source standards and international marine shipping, are generally outside the control of the State, ODEQ did not directly address this requirement. However, the State made clear in Chapter 5.2
Given the dominance of these two emissions source categories on the overall inventory, it is highly unlikely that differences in the stationary source controls selected by Oregon would significantly impact the projected RPG modeling for these IMPROVE monitoring stations. Nevertheless, as described in section IV.E.b. of this preamble, considering ODEQ's conservative screening methodology to use permitted emissions limits, the high $10,000 cost per ton reduction threshold Oregon used in reviewing the four-factor analyses submitted by the sources, the conservative methodology of evaluating controls using permitted emissions limits, the number of new emissions controls imposed specifically under the regional haze program, and the significant emissions reductions achieved, we are proposing to determine that there are no additional emission reduction measures for anthropogenic sources or groups of sources in the State that may reasonably be anticipated to contribute to visibility impairment in the Class I area that would be reasonable to include in the long-term strategy and that Oregon has met the robust demonstration requirement under 40 CFR 51.308(f)(3)(ii)(A).
Under 40 CFR 51.308(f)(3)(ii)(B), a state that contains sources that are reasonably anticipated to contribute to visibility impairment in a Class I area in another state for which a demonstration by the other state is required under 40 CFR 51.308(f)(3)(ii)(B) must demonstrate that there are no additional emission reduction measures that would be reasonable to include in its long-term strategy. Oregon's SIP revision included the modeled WRAP 2028 visibility projections for Redwood National Park and Lava Beds National Monument in California, both of which have WRAP-
In reviewing Oregon's regional haze SIP submissions, we note that Oregon identified one facility, Roseburg Forest Products—Dillard, as potentially impacting Redwood National Park with a Q/d of 10.39 based on 2017 actual emissions. Oregon's regional haze SIP submissions include a four-factor analysis for the facility and enforceable controls to reduce NO
Section 51.308(f)(6) specifies that each comprehensive revision of a state's regional haze SIP must contain or provide for certain elements, including monitoring strategies, emissions inventories, and any reporting, recordkeeping and other measures needed to assess and report on visibility. A main requirement of this section is for states with Class I areas to submit monitoring strategies for measuring, characterizing, and reporting on visibility impairment. Compliance with this requirement may be met through participation in the Interagency Monitoring of Protected Visual Environments (IMPROVE) network.
Chapter 1.5.2
Section 51.308(f)(6)(i) requires SIPs to provide for the establishment of any additional monitoring sites or equipment needed to assess whether reasonable progress goals to address regional haze for all mandatory Class I Federal areas within the state are being achieved. Regional haze data for Oregon Class I areas are collected by the IMPROVE monitoring stations shown in table 1 of this preamble. The monitoring stations are primarily operated by the U.S. Forest Service, except for the CRLA1 IMPROVE monitoring station which is operated and maintained by the National Parks Service. As noted in ODEQ's monitoring strategy chapter, Oregon would rely on the IMPROVE Steering Committee to advise if conditions changed such that additional monitors were necessary.
Section 51.308(f)(6)(ii) requires SIPs to provide for procedures by which monitoring data and other information are used in determining the contribution of emissions from within the state to regional haze visibility impairment at mandatory Class I Federal areas both within and outside the state. Oregon relied on the WRAP source apportionment modeling and the weighted emission potential (WEP) analysis to help discern the degree to which different sectors affect visibility in each Class I area. The source apportionment and WEP analysis are based on data from WRAP's Technical Support System website
Section 51.308(f)(6)(iv) requires the SIP to provide for the reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state. As noted in the prior paragraphs, the IMPROVE monitoring stations in Oregon are operated and maintained by the U.S. Forest Service and the National Park Service. The monitoring strategy for Oregon relies upon the continued availability of the IMPROVE network. Oregon supports the continued operation of the IMPROVE network by committing a portion of Oregon's PM
Section 51.308(f)(6)(v) requires SIPs to provide for a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment, including emissions for the most recent year for which data are available and estimates of future projected emissions. It also requires a commitment to update the inventory periodically. Oregon provides for emissions inventories and estimates for future projected emissions by participating in the WRAP regional planning organization (RPO) and complying with the EPA's Air Emissions Reporting Rule (AERR). In 40 CFR part 51, subpart A, the AERR
Chapter 2.3.
Section 51.308(f)(6)(v) also requires states to include estimates of future projected emissions and include a commitment to update the inventory periodically. Oregon relied on the WRAP 2028 emissions projections for WRAP states. WRAP completed two 2028 projected emissions modeling cases—a 2028 base case that considers only on-the-books controls and a 2028 control case that considers implementation of the controls based on ODEQ's review of four-factor analyses submitted by the screened in sources.
The EPA proposes to find that Oregon has met the requirements of 40 CFR 51.308(f)(6) as described in the prior paragraphs, including through its continued participation in the IMPROVE network and the WRAP RPO and its on-going compliance with the AERR, and that no further elements are necessary at this time for Oregon to assess and report on visibility pursuant to 40 CFR 51.308(f)(6)(vi).
Section 51.308(f)(5) requires that periodic comprehensive revisions of states' regional haze plans also address the progress report requirements of 40 CFR 51.308(g)(1) through (5). The purpose of these requirements is to evaluate progress towards the applicable reasonable progress goals for each Class I area within the state and each Class I area outside the state that may be affected by emissions from within that state. Sections 51.308(g)(1) and (2) apply to all states and require a description of the status of implementation of all measures included in a state's first implementation period regional haze plan and a summary of the emission reductions achieved through implementation of those measures. Section 51.308(g)(3) applies only to states with Class I areas within their borders and requires such states to assess current visibility conditions, changes in visibility relative to baseline (2000-2004) visibility conditions, and changes in visibility conditions relative to the period addressed in the first implementation period progress report. Section 51.308(g)(4) applies to all states and requires an analysis tracking changes in emissions of pollutants contributing to visibility impairment from all sources and sectors since the period addressed by the first implementation period progress report. This provision further specifies the year or years through which the analysis must extend depending on the type of source and the platform through which its emission information is reported. Finally, 40 CFR 51.308(g)(5), which also applies to all states, requires an assessment of any significant changes in anthropogenic emissions within or outside the state have occurred since the period addressed by the first implementation period progress report, including whether such changes were anticipated and whether they have limited or impeded expected progress towards reducing emissions and improving visibility.
Oregon's submission describes the status of measures of the long-term strategy from the first implementation period. The most significant was the amendment of the PGE Boardman Title V permit to include conditions requiring BART control installation and to permanently cease burning coal in the main boiler by December 31, 2020. In Oregon's 2017 5-year progress report, ODEQ reported that in 2011, PGE Boardman installed low NO
Oregon's SIP submissions included summaries of the visibility conditions and the trend of the 5-year averages through 2018 at Class I area in the State.
Pursuant to § 51.308(g)(4), as part of the November 22, 2023 supplement to the submission,
The reductions achieved by Oregon emission control measures are seen in the emissions inventory. Based on
The EPA is proposing to find that the requirements of 40 CFR 51.308(g)(4) are satisfied by providing emissions information for NO
Section 169A(d) of the Clean Air Act requires states to consult with Federal Land Managers (FLMs) before holding the public hearing on a proposed regional haze SIP, and to include a summary of the Federal Land Managers' conclusions and recommendations in the notice to the public. In addition, 40 CFR 51.308(i)(2)'s Federal Land Manager consultation provision requires a state to provide FLMs with an opportunity for consultation that is early enough in the state's policy analyses of its emission reduction obligation so that information and recommendations provided by the FLMs can meaningfully inform the state's decisions on its long-term strategy. If the consultation has taken place at least 120 days before a public hearing or public comment period, the opportunity for consultation will be deemed early enough, Regardless, the opportunity for consultation must be provided at least sixty days before a public hearing or public comment period at the state level. Section 51.308(i)(2) also provides two substantive topics on which FLMs must be provided an opportunity to discuss with states: assessment of visibility impairment in any Class I area and recommendations on the development and implementation of strategies to address visibility impairment. Section 51.308(i)(3) requires states, in developing their implementation plans, to include a description of how they addressed FLM comments.
Chapter 6.3.2
On August 27, 2021, Oregon provided public notice on the draft SIP submission and held a public hearing on October 27, 2021. ODEQ notified the public, interested parties, the Federal Land Managers, air quality contacts from other states and regions, and the EPA.
For the reasons stated in the prior paragraphs, the EPA proposes to find that Oregon has satisfied the requirements under 40 CFR 51.308(i) to consult with the Federal Land Managers on its regional haze SIP for the second implementation period.
The EPA is proposing to approve the Oregon SIP revision submitted on April 29, 2022, as supplemented on November 22, 2023, as satisfying the regional haze requirements for the second implementation period contained in 40 CFR 51.308(f).
The EPA is proposing to approve and incorporate by reference in 40 CFR 52.1970(c),
• 340-223-0010
• 340-223-0020
• 340-223-0100
• 340-223-0110
• 340-223-0120
• 340-223-0130
We are proposing to remove from incorporation by reference in 40 CFR 52.1970(c),
In addition to the regulatory provisions, the EPA is proposing to approve and incorporate by reference in 40 CFR 52.1970(d),
In this document, the EPA is proposing to include regulatory text in an EPA final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the regulatory and source-specific provisions described in section V. of this preamble. The EPA has made, and will continue to make, these materials generally available through
The EPA is also proposing to remove from incorporation by reference the regulatory provisions described in section V. of this preamble.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.
In addition, this proposed action, pertaining to the Oregon regional haze SIP submissions for the second planning period, would not be approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rulemaking would not have Tribal implications and would not impose substantial direct costs on tribal governments or preempt Tribal law as
Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.” The Oregon Department of Environmental Quality did evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Children's Bureau (CB), Administration on Children, Youth and Families (ACYF), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS).
Notice of proposed rulemaking.
ACF proposes to amend the Adoption and Foster Care Analysis and Reporting System (AFCARS) regulations that require title IV-E agencies to collect and report data to ACF on children who enter out-of-home care, their providers, and children who have a title IV-E adoption or guardianship assistance agreement to collect additional data related to Indian children.
In order to be considered, we must receive written comments on or before April 23, 2024.
ACF encourages the public to submit comments electronically to ensure they are received in a timely manner. Please be sure to include identifying information on correspondence. To download an electronic version of the proposed rule, please go to
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Joe Bock, The Children's Bureau, (202) 205-8618. Telecommunications Relay users may dial 711 first. Email inquiries to
This NPRM is published under the authority granted to the Secretary of Health and Human Services (HHS) by section 1102 of the Social Security Act (the Act), 42 U.S.C. 1302. Section 1102 of the Act authorizes HHS to publish regulations, not inconsistent with the Act, as may be necessary for the efficient administration of the functions for which HHS is responsible under the Act. Section 479 of the Act (42 U.S.C. 679) mandates HHS regulate a data collection system for national adoption and foster care data. Section 474(f) of the Act (42 U.S.C. 674(f)) requires HHS to impose penalties for non-compliant AFCARS data.
AFCARS is authorized by section 479 of the Act (42 U.S.C. 679), which mandates that HHS regulate a data collection system for national adoption and foster care data. The regulation at 45 CFR 1356.60(d) and the statute at 42 U.S.C. 674(a)(3) detail cost-sharing requirements for the Federal and non-Federal share of data collection system initiation, implementation, and operation. A title IV-E agency may claim Federal Financial Participation (FFP) at the rate of 50 percent for costs of a data collection system specified by section 479 of the Act (42 U.S.C. 679). AFCARS data is used for a variety of requirements, including but not limited to, providing national statistics on the child welfare population, budgeting, providing reports to Congress, and monitoring compliance with the title IV-B and IV-E requirements. Title IV-E agencies must submit data files on a semi-annual basis to ACF. AFCARS regulations were first published in 1993 and states began submitting data in fiscal year (FY) 1995. AFCARS is regulated at 45 CFR 1355.41-.47.
ACF published a final rule revising the AFCARS regulations on December 14, 2016 (81 FR 90524, hereafter referred to as the “2016 final rule”). The rule reflected child welfare legislative changes that occurred since 1993 and included many new data elements including information related to the Indian Child Welfare Act of 1978 (ICWA), and about the sexual orientation of the child and their providers (
Some of the data elements that were eliminated or altered in the 2020 final rule related to reporting on the details of ICWA's procedural protections (see also discussion at 84 FR 16573
We are now proposing adding data elements and revising some of the current data elements to report more detailed information related to ICWA's procedural protections to AFCARS, in order to fulfill the AFCARS statutory mandate to provide comprehensive national information on the demographics of “adoptive and foster children and their biological and adoptive foster parents”, “the status of the foster care population”, and “the extent and nature of assistance provided by Federal, state, and local adoption and foster care programs and the characteristics of the children with respect to whom such assistance is provided” (section 479(c)(3) of the Act (42 U.S.C. 679(c)(3))).
For American Indian and Alaska Native (AI/AN) children, who are subject to both Title IV-E of the Social Security Act and ICWA, it is impossible to fully understand their experiences in foster care without understanding the extent to which they receive the procedural protections of ICWA. ICWA was enacted in 1978 to “promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.”
In 1978, Congress enacted the Indian Child Welfare Act (ICWA) out of concern that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” 92 Stat. 3069, 25 U.S.C. 1901(4). Congress found that many of these children were being “placed in non-Indian foster and adoptive homes and institutions,” and that the States had contributed to the problem by “fail[ing] to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” §§ 1901(4), (5). . . . The Act thus aims to keep Indian children connected to Indian families.
Congress recognized when it passed ICWA that the minimum Federal standards established by ICWA “for the removal of Indian children from their families and the placement of these children in foster or adoptive homes” were needed to counter the longstanding state policies and practices that contributed to the disproportionate removal of Indian children from their families and communities (see 81 FR 38779, June 14, 2016). ICWA's key protections include:
However, inconsistent state practices in implementation “ha[ve] led to significant variation in applying ICWA's statutory terms and protections” (see 81 FR 38779, June 14, 2016). A final rule issued by the Department of Interior, Bureau of Indian Affairs (BIA) noted that at the time of ICWA's passage, “Congress found that removal of children and unnecessary termination of parental rights were utilized to separate Indian children from their Indian
We anticipate that gathering more ICWA-related data would help ACF, researchers, and other policymakers better understand the status and experiences of AI/AN children and families interacting with the state child welfare systems and better address the continuing overrepresentation in foster care and other poor outcomes that AI/AN children experience. More complete data collection would provide a foundation for improved policy development, targeted technical assistance, and focused resource. This could assist in efforts to mitigate disproportionality for AI/AN children and families, support pathways to timely permanency for these children, and help maintain the integrity of tribal communities.
ACF also seeks additional input on how the data from this NPRM may be used and particularly seeks to understand how this data may be of utility via national statistics. ACF wishes to understand from states specifically on the utility of the data. Since it has been many years since the 2016 final rule and states have submitted data files under the 2020 final rule, ACF wishes to understand the state perspective for today's NPRM.
Under the 2020 rule, the ICWA-related information currently reported to AFCARS is:
• whether the child, mother, father, foster parents, adoptive parents, and legal guardians are tribal members,
• whether the state made inquiries whether the child is an Indian child as defined in ICWA,
• the date that the state was notified by the Indian tribe or state or tribal court that ICWA applies, and
• whether the Indian child's tribe(s) was sent legal notice.
While that is helpful, it does not provide sufficient information about the unique factors particular to AI/AN children to meaningfully inform policymaking. Collecting more data elements related to ICWA's procedural protections would enable HHS, other Federal agencies, and the states to target policy development, training, and technical assistance to specific areas of need.
ACF recognizes that this proposed rulemaking represents a change in approach from our most recent AFCARS rulemaking, the 2020 final rule, which had substantially reduced the number of ICWA data elements to be collected in AFCARS from those that were required under the 2016 final rule. This proposed rulemaking includes nearly all of the ICWA data elements from the 2016 final rule that were not included in the 2020 final rule, with some modified to reduce the reporting burden. As ACF has given the matter further consideration since issuing the 2020 final rule, ACF has determined that it is in the best interest to collect these additional data elements. Collecting these additional data elements related to ICWA's protections would provide critical information about ICWA's procedural protections. These procedural protections were affirmed in the 2023
While ACF's role is not to enforce state compliance with ICWA—that role falls to the Department of Interior's Bureau of Indian Affairs—it is ACF's role, in part, to ensure that state child welfare systems appropriately serve all children, including AI/AN children, and to set national child welfare policy that takes into account the needs of all foster and adoptive children. Additionally, there is no other comprehensive, national data collection related to ICWA that can inform our understanding of the experiences of tribal children in the child welfare system. Given the long history of removal of AI/AN children from their families and communities, the unique cultural considerations that apply to tribes,
We understand that in establishing these additional data elements, this proposed data collection would put an additional burden on state child welfare agencies. However, this will be the case for any additional data collection requirements. We have given this serious consideration, both out of concern for the effective functioning of those systems in their core function of serving at-risk families and because the AFCARS statute requires ACF to “avoid unnecessary diversion of resources from agencies responsible for adoption and foster care” when regulating AFCARS (section 479(c)(1) of the Act (42 U.S.C. 679(c)(1))). We are mindful of the cost to state title IV-E agencies of collecting this data, but at the same time, we are mindful of the costs to AI/AN children, families, and tribes, as well as ACF, states, and policymakers, of not collecting the data. While any data collection requirement imposes costs, the key consideration under the statute is whether such costs result in an “unnecessary diversion of resources” from agencies. ACF proposes to collect robust ICWA-related data in order to understand and identify policies to address the disproportionality of AI/AN child involvement in the child welfare system.
In coming to this conclusion, we have considered the comments that we received on the 2018 ANPRM and the 2019 NPRM. Thirty-three states commented in 2018 and nine state/local agencies in 2019 expressing concern with the 2016 ICWA data reporting requirements.
We also note that in both 2018 and 2019, there were significant comments submitted by researchers, non-governmental organizations with relevant expertise, and other stakeholders and advocates. While these commenters were typically not in a position to address issues relating to costs of compliance, their comments were informative in considering the utility of the potential data collection. In the 2019 preamble, ACF stated that the “majority of these commenters opposed streamlining the data [as compared with what was required in 2016] for reasons similar to the commenters representing tribal interests, such as underscoring the importance of certain casework activities and showing national trends. The advocates, tribes, and commenters representing tribal interests expressed that:
• Currently, there are few data collection efforts at the state and Federal level that provide meaningful data on American Indian and Alaska Native (AI/AN) children under the custody of state child welfare authorities and how ICWA is applied in their cases. This population is overrepresented within state foster care systems nationally—in some states by as much as 10 times their population rate. The Federal protections that ICWA provides these children and their families have the potential to reduce disproportionality and achieve permanency for these children. However, without the Federal government collecting more detailed case-level data, it is impossible to know how many AI/AN children are receiving ICWA protections. Collecting this data will also help the Administration for
• States should currently be asking questions that ascertain whether a child is an Indian child as defined in ICWA, including inquiring about the family's tribal membership status;
• Specific data elements on notification of proceedings and transfers to tribal court are important because the timelines in ICWA are rarely met; and
• Information on termination of parental rights, removals under ICWA, and placement preferences are important for determining ICWA compliance (84 FR 16574).
Most other advocacy organizations opposed reducing the data elements as compared with what was required under the 2016 rule for reasons similar to the commenters representing tribal interests, such as underscoring the importance of certain casework activities and showing national trends. The commenters provided broad commentary on the benefit of having new data outweighs the burden of having to report it (84 FR 16574). In the 2020 final rule preamble, all Indian tribes, tribal organizations or consortiums, and organizations representing tribal interests opposed reducing the ICWA-related data elements primarily because they felt that all data elements in the 2016 final rule were needed to assess ICWA compliance, and that national information is important to address disparities, analyze outcomes, and help in working with Indian children and families (85 FR 28411). The national advocacy organizations and other individuals or entities that commented expressed general opposition to the reduction of required data elements for various reasons with the general sentiment being that the 2016 final rule would provide more insight into the foster care population, promote visibility for marginalized groups, and allow data-informed legislating, policy, and program decisions (85 FR 28411). The reasons set forth above align with ACF's need for including the expanded ICWA-related data elements.
In the 2019 NPRM, we had concluded that the concerns articulated by a set of states weighed in favor of significantly reducing the number of ICWA-related data elements from the 2016 final rule and proposed to reduce required ICWA reporting. In coming to that conclusion, among other reasons, we took the position that it was overly burdensome to require all states to modify their data systems to collect data that would only apply to a small percentage of children. However, while all states would have to modify their data systems to allow for collection of the proposed data elements, and report information from court orders, agency caseworkers will only have to actually collect and enter the new ICWA-related data elements proposed here for those children to whom ICWA in fact applies, so the ongoing burden on states with small AI/AN populations would be low (84 FR 16572, April 19, 2019).
In the 2020 final rule, we provided additional justification for the decision not to include additional ICWA-related data elements: (1) HHS is not the cognizant agency over implementing, overseeing, or assessing compliance with ICWA and thus is not able to interpret various ICWA requirements; (2) the IV-B statute at section 422(b)(9) of the Act (42 U.S.C. 622(b)(9)) does not provide authority for ACF to collect ICWA-related data in AFCARS; (3) the AFCARS statute does not authorize ACF to collect data in AFCARS for purposes of assessing states' compliance with ICWA; and (4) ACF would not be able to release specific information regarding a child's tribal membership or ICWA applicability to requestors, except to the Indian tribe in which the child is or may be a member, in order to protect confidentiality given the low numbers of children to whom ICWA applies. 85 FR at 28, 412-13.
Upon further consideration, we do not consider any of these points reasons to not collect the proposed data. First, ACF has never contended that HHS is the cognizant agency with responsibilities over implementing, overseeing, or assessing compliance with ICWA. Collecting the proposed data would provide valuable insights into the experiences of tribal children in the child welfare system, and the data would not be collected to implement, oversee or assess compliance with ICWA. ACF will consult with BIA to ensure that ACF's guidance is consistent with BIA's interpretations of the ICWA statute and regulations, but not because ACF has any role in ICWA enforcement.
Second, Section 422(b)(9) of the Act (42 U.S.C. 622(b)(9)) requires states to include in their child welfare services plans a description, developed after consultation with tribal organizations of the specific measures taken by the State to comply with ICWA. Neither in 2016 nor now is ACF relying on Section 422(b)(9) as authority for this proposed regulation, though the existence of Section 422(b)(9) does underscore Congress' recognition of the importance of ICWA compliance in the work of child welfare agencies.
The third point noted above—that the AFCARS statute does not authorize ACF to collect data in AFCARS for purposes of assessing states' compliance with ICWA—largely misses the point of this data collection. As discussed above, it is not to assess ICWA compliance, but rather to better understand the experiences of tribal children whose cases are subject to the requirements of ICWA.
The fourth point above was that ACF would not be able to release specific information regarding a child's tribal membership or ICWA applicability except to the Indian tribe in which the child is or may be a member in order to protect confidentiality. ACF had reached this decision in light of the need to ensure privacy and confidentiality as several states have less than a handful of Indian children in foster care. There is a significant privacy interest in that the information given could reveal a child's identity, which could allow the identification of children. Safeguarding information of children in small jurisdictions is consistent with existing practice. The current practice for small populations in jurisdictions is to aggregate the data into larger groups so that those children cannot be identified. This current practice would not change under this NPRM. Accordingly, this reduces the availability of data on Indian children to non-tribal members when there are small numbers of children in foster care. Nevertheless, ACF does not believe this is a sufficient basis for not moving forward with the rule.
In the 2020 Final Rule, ACF also based the decision not to reinstate additional ICWA-related data elements in part on concerns about the reliability and consistency of the data (85 FR 28411 and 28419). ACF's current understanding is that caseworkers would have to draw language from court orders and possibly transcripts to be able to report the specific information in these proposed data elements, and that this may be difficult at times. Furthermore, ACF's current belief is that information and actions taken to meet ICWA's requirements may be performed by the courts themselves, and therefore the state title IV-E agency currently cannot always guarantee they have the accurate information for reporting the AFCARS data elements. Both of these possibilities may raise questions about reliability, but they can be addressed through training and technical assistance. In order to better inform its understanding, ACF seeks comment from states on how this work is done currently, whether the information is available in the case management
As studies cited previously in this preamble demonstrate, there are disproportionately negative outcomes generally for AI/AN children, youth, and families, AI/AN children continue to be over-represented in the child welfare system and are at greater risk than other children of being confirmed for maltreatment and placed in out-of-home care. Having more data on ICWA's procedural requirements may help these issues. ACF realizes that all states have or are in the process of modifying their data systems to collect the new data elements, largely unrelated to ICWA, required by the 2020 final rule. ACF also realizes that adding additional data elements to state data collection systems will present an additional financial and personnel cost and that the data is qualitative in nature, meaning that it likely will be more costly and time-consuming to report because, we understand, that the information is in paper files or case notes, and not already within data fields ready for reporting. However, ACF no longer sees these as sufficient reasons to not require reporting of ICWA procedural requirements in AFCARS. AFCARS may be modified when needed, for example, to reflect legislative changes and other changing needs for particular kinds of data. We plan to build in time for states to make the needed modifications and invite comments on what timeframe they would see as sufficient.
Regarding reliance interests of states for this AFCARS NPRM, ACF interprets this to mean that states may be relying on the 2020 final rule remaining in place the way it is. States are in the process of updating information systems to be able to report the 2020 final rule appropriately because most were not compliant in the first data file submission that occurred in May 2023. State will have to expend costs to implement an eventual final rule, as estimated in the Burden estimate section of this preamble. However, the AFCARS regulations may be amended at any time to accommodate changes in law, policy, or other matters that are tied to the title IV-B/IV-E programs. Accordingly, ACF does not view this NPRM as implicating states' reliance interests.
This NPRM is consistent with the administration's priority of advancing equity for those historically underserved and adversely affected by persistent poverty and inequality (Executive Order 13985
Currently, state title IV-E agencies report the following related to ICWA in AFCARS:
• Tribal membership of the child, mother, father, foster parents, adoptive parents, and legal guardians—§ 1355.44(b)(4), (c)(3) and (4), (e)(10) and (15), and (h)(4) and (9).
• Whether the state made inquiries whether the child is an Indian child as defined in ICWA—§ 1355.44(b)(3).
• Whether ICWA applies for the child and the date that the state was notified by the Indian tribe or state or tribal court that ICWA applies—§ 1355.44(b)(5).
• Whether the Indian child's tribe(s) was sent legal notice—§ 1355.44(b)(6).
Our proposal is to require state title IV-E agencies to revise some of the current data elements to report more detailed information on ICWA's procedural protections in section 1355.43(b) and to add data elements on certain aspects of ICWA's procedural protections for requests for transfers to tribal court, termination/modification of parental rights, and foster care, pre-adoptive and adoptive placement preferences, in a new § 1355.44(i).
In summary, we propose to require state title IV-E agencies to report the following additional information related to ICWA's procedural protections:
• Whether the state inquired with certain individuals as to whether the child is an Indian child as defined in ICWA and when the agency first discovered information indicating that the child is or may be an Indian child as defined in ICWA (section 1355.44(b)(3) and (4)).
• Information on whether a court determined that ICWA applies for the child, and whether the court decision included testimony of one or more qualified expert witnesses was included for voluntary and involuntary terminations of parental rights, and removals (section 1355.44(b)(6), (i)(2), (3), and (4)).
• Whether the child's parent or Indian custodian was sent notice in accordance with ICWA (section 1355.44(b)(5)).
• Information on requests to transfer cases to Tribal court (section 1355.44(i)(1)).
• Information on meeting the placement preferences under ICWA (section 1355.44(i)(5)-(8) and (10)-(13)).
• Whether the court determined that the IV-E agency made active efforts to prevent the breakup of the Indian family (section 1355.44(i)(9)).
The section-by-section preamble explains in detail how we propose the current CFR be amended to include the new information to report.
Implementation of changes to the AFCARS data elements as described in this NPRM and a precise effective date are dependent on the issuance of a final rule. We anticipate providing state title IV-E agencies with at least two full fiscal years before we will require them to collect and report additional data elements. We seek state title IV-E
ACF welcomes comments on all aspects of this proposed rule. ACF specifically seeks comments on the potential benefits and disadvantages of including this data in AFCARS, and from state title IV-E agencies on the cost and burden to incorporate this proposal into their administrative data sets, including information on the following because this will be used to inform the burden estimates in the Paperwork Reduction Act section of an eventual final rule (see
• An estimate of recordkeeping hours to be spent annually to gather and enter the information proposed in this NPRM into the agency's electronic case management system, training and administrative tasks associated with training personnel on these requirements (
• Reporting hours spent annually extracting the information proposed in this NPRM for AFCARS reporting and transmitting to ACF.
References throughout this proposed rule to “child” or “children” are inclusive of youth and young adults aged 18 or older who are served by the title IV-E and IV-B programs. We use these terms in the regulatory text and section-by-section preamble discussion because these are used throughout the title IV-E and IV-B statute and regulations.
For the reasons described above, ACF believes that its authority to implement each of the provisions in the proposed regulation is well-supported in law and practice and should be upheld in any legal challenge. ACF also believes that its exercise of its authority reflects sound policy. However, in the event that any portion of the proposed rule is declared invalid, ACF intends that the other provisions be severable.
This section contains data reporting requirements for AFCARS, such as report periods and deadlines for submitting data files, and descriptions of data quality errors. We propose technical edits to amend paragraphs (b)(1) and (2) to correct cross references to data elements in § 1355.44 and remove paragraph (b)(3) to eliminate obsolete dates.
This section contains the data element descriptions for the Out-of-Home Care Data File.
Paragraph (b) contains specific information for the identified child who is in the Out-of-Home Care Reporting Population.
In paragraphs (b)(4)(iii) and (iv), we propose to require the state title IV-E agency to indicate whether it knows or has reason to know that the child is an Indian child as defined in ICWA, and if “yes,” then the state title IV-E agency must indicate the date that it first discovered the information indicating the child is or may be an Indian child as defined in ICWA. The information reported for paragraphs (b)(4)(iii) and (iv) and (6) (discussed below) would replace the current data element in § 1355.44(b)(5), which requires the state IV-E agency to report only whether ICWA applies and if so, the date the state title IV-E agency was notified, because this proposal is requiring a state title IV-E agency to report more details related to ICWA's procedural requirements on “reason to know”.
In new paragraph (i), we propose to obtain information on certain requirements related to ICWA. This paragraph applies only to state title IV-E agencies that reported “yes, ICWA applies” in paragraph (b)(6)(i); otherwise, the state title IV-E agency must leave paragraph (i) blank. Tribal title IV-E agencies do not report information in paragraph (i). This section is new and is an expansion of the ICWA-related information state title IV-E agencies are currently required to report under § 1355.44. The information proposed to be reported relate to transfers to tribal court, involuntary and voluntary terminations/modifications or parental rights, active efforts, and placement preferences under ICWA.
• Executed in writing.
• Recorded before a court of competent jurisdiction.
• Accompanied with a certification by the court that the terms and consequences of consent were explained on the record in detail and were fully understood by the parent or Indian custodian in accordance with 25 CFR 23.125(a) and (c).
The state title IV-E agency must indicate “yes” or “no” for each paragraph.
• Request of one or both of the Indian child's parents.
• Request of the Indian child.
• The unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the placement preferences in ICWA at 25 U.S.C. 1915, but none has been located.
• The extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live.
• The presence of a sibling attachment that can be maintained only through a particular placement.
• Request of one or both of the child's parents.
• Request of the Indian child.
• The unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the adoptive placement preferences in ICWA at 25 U.S.C. 1915, but none has been located.
• The extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the adoptive placement preferences live.
• The presence of a sibling attachment that can be maintained only through a particular adoptive placement.
Executive Orders 12866, 13563, and 14094 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). Executive Order 13563 is supplemental to, and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866, emphasizing the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Section 3(f) of Executive Order 12866 defines “a significant regulatory action” and was modified by Executive Order 14094 to mean as “any regulatory action that is likely to result in a rule that may: (1) have an annual effect on the economy of $200 million or more . . . or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues for which centralized review would meaningfully further the President's priorities, or the principles set forth in the Executive Order, as specifically authorized in a timely manner by the Administrator of OIRA in each case”. A regulatory impact analysis must be prepared for rules determined to be significant regulatory actions within the scope of section 3(f)(1) of Executive Order 12866. ACF consulted OMB and determined that this proposed rule meets the criteria for a significant regulatory action under Executive Order 12866 and was subject to OMB review.
AFCARS is the only comprehensive case-level data set on the incidence and experiences of children who are in out-of-home care under the placement and care of the title IV-E agency or who are
Federal reimbursement under title IV-E will be available for a portion of the costs that state title IV-E agencies will incur as a result of the revisions in this proposed rule, depending on each state title IV-E agency's cost allocation plan, information system, and other factors. Estimated costs to the Federal Government are provided below in the Burden estimate section. We estimate the Federal portion of the overall information collection costs to be $2,216,786.
Federal agencies must justify the need for regulatory action and consider a range of policy alternatives. We speak to two alternatives that were considered and rejected.
• ACF considered not expanding the ICWA related data elements in AFCARS. An alternative course of action would be to do nothing and leave the requirements at § 1355.44 in place because they were streamlined in the 2020 final rule in response to comments solicited at that time. We rejected this option because of the reasons described earlier in the NPRM. Under this alternative, state title IV-E agencies would continue to report the ICWA-related data required through the 2020 final rule. However, this information would not be robust enough to provide the data on AI/AN children needed to understand their experiences in the foster care system.
• ACF also considered the alternative of implementing a process to monitor ICWA's procedural protections through a case review outside of AFCARS. We decided against that approach because we believe that requiring state title IV-E agencies to collect and report information related to the more detailed aspects of ICWA's procedural protections via AFCARS is preferable because it will result in comprehensive national data. AFCARS data is required to be “reliable and consistent over time and among jurisdictions through the use of uniform definitions and methodologies” and “provide comprehensive national information” for the reporting populations (section 479(c)(2) and (3) of the Act (42 U.S.C. 679(c)(2) and (3))). The fact that the statutory penalties for noncompliant AFCARS submissions apply to data proposed under this NPRM may incentivize agencies to provide timely and complete data submissions (section 474(f) of the Act (42 U.S.C. 674)). (Note that agencies are afforded an opportunity to correct and resubmit noncompliant data files, as outlined in 45 CFR 1355.46.)
The Congressional Review Act (CRA) allows Congress to review major rules issued by Federal agencies before the rules take effect (see 5 U.S.C. 801(a)(1)(A)). The CRA defines a “major rule” as one that has resulted, or is likely to result, in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets (see 5 U.S.C. chapter 8). OMB's Office of Information and Regulatory Affairs has determined that this final rule does not meet the criteria set forth in 5 U.S.C. 804(2).
The Regulatory Flexibility Act (RFA) (see 5 U.S.C. 605(b) as amended by the Small Business Regulatory Enforcement Fairness Act) requires Federal agencies to determine, to the extent feasible, a rule's impact on small entities, explore regulatory options for reducing any significant impact on a substantial number of such entities, and explain their regulatory approach. The term “small entities,” as defined in the RFA, comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. HHS considers a rule to have a significant impact on a substantial number of small entities if it has at least a three percent impact on revenue on at least 5 percent of small entities. However, the Secretary proposes to certify, under 5 U.S.C. 605(b), as enacted by the RFA (Pub. L. 96-354), that this rulemaking will not result in a significant impact on a substantial number of small entities. This proposed rule does not affect small entities because it is applicable only to state title IV-E agencies. Therefore, an initial regulatory flexibility analysis is not required for this proposed rule.
The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) was enacted to avoid imposing unfunded Federal mandates on state, local, and tribal governments, or on the private sector. Section 202 of UMRA requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any one year of $100 million in 1995 dollars, updated annually for inflation. In 2023, that threshold is approximately $177 million. This proposed rule does not contain mandates that will impose spending costs on state, local, or tribal governments in the aggregate, or on the private sector, in excess of the threshold.
Section 654 of the Treasury and General Government Appropriations Act of 2000 requires Federal agencies to determine whether a policy or regulation may negatively affect family well-being. If the agency determines a policy or regulation negatively affects family well-being, then the agency must prepare an impact assessment addressing seven criteria specified in the law. ACF believes it is not necessary to prepare a family policymaking assessment (see Pub. L. 105-277) because the action it takes in this NPRM would not have any impact on the autonomy or integrity of the family as an institution.
Executive Order 13132 on Federalism requires that Federal agencies consult with state and local government officials in the development of regulatory policies with Federalism implications. Consistent with Executive Order 13132, we specifically solicit comment from State and local government officials on this proposed rule.
This proposed rule contains information collection requirements (ICRs) that are subject to review by OMB under the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501-3520. PRA of 1995 sought to minimize government-imposed burden from information collections on the public. In keeping with the notion that
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
Information collection for AFCARS is currently authorized under OMB number 0980-0267. This proposed rule contains information collection requirements in proposed § 1355.44 the Out-Of-Home Care Data File that the Department has submitted to OMB for its review. We propose to require that state title IV-E agencies report ICWA-related information for children who are in the Out-of-Home Care Reporting Population (§ 1355.42(a)) for the data elements proposed in § 1355.44(b) and (i).
The following are estimates.
We made several assumptions when calculating the burden and costs:
•
•
•
•
•
○ Office and Administrative Support Occupations (43-0000) (
• Searching data sources, gathering information, and entering the information into the case management system for children who enter foster care, ACF estimates that this would take on average 44,875 hours annually. The 2020 final rule estimated these tasks to be 4.02 hours annually for each child who entered foster care for all 2020 final rule data points. For this NPRM, the expanded ICWA related information proposed to be added in:
○ Section 1355.44(b)(3) through (6) is a 5 percent increase in data points to report for all children who enter foster care (4.02 × 0.05 = 0.20 hours). These data points apply to all children who enter foster care (0.20 hours × 206,812 children = 41,362 hours).
○ Section 1355.44(i) is a 19 percent increase in data points to report for children to whom ICWA applies (4.02 × 0.19 = 0.76 hours). We are using a child's reported race as AI/AN as a proxy for a child to whom ICWA applies (0.76 hours × 4,622 children = 3,513 hours).
○ The total estimate of searching/gathering/entering information into the case management system is 48,194 annual burden hours (41,362 + 3,513 = 44,875).
• Developing or modifying standard operating procedures and IT systems to collect, validate, and verify the information and adjust existing ways to comply with the AFCARS requirements, and testing is estimated at 1,608 hours annually. The 2020 final rule estimated 6,700 hours for these tasks for all 2020 final rule data points. For this NPRM, the expanded ICWA-related information proposed to be added in:
○ Section 1355.44(b)(3) through (6) is a 5 percent increase in data points to report for all children who enter foster care (6,700 × 0.05 = 335 hours).
○ Section 1355.44(i) is a 19 percent increase in data points to report for children to whom ICWA applies (6,700 × 0.19 = 1,273 annual hours).
• The total estimate of modifying IT systems and adjust existing ways to comply with the NPRM is 1,621 annual burden hours (335 + 1,273 = 1,608). Administrative tasks associated with training personnel on the NPRM requirements (
○ Section 1355.44(b)(3) through (6) is a 5 percent increase in data points to report for all children who enter foster care (7,086 × 0.05 = 354 hours).
○ Section 1355.44(i) is a 19 percent increase in data points to report for children to whom ICWA applies (7,086 × 0.19 = 1,346 hours).
○ The total estimate of administrative tasks associated with training personnel to comply with the NPRM is 1,714 annual burden hours (354 + 1,346 = 1,700).
Thus, the total recordkeeping burden estimate is 44,875 searching and gathering information + 1,608 developing or modifying IT systems + 1,700 administrative tasks = 48,183 hours.
• Section 1355.44(b)(3) through (6) is a 5 percent increase in data points to report for all children who enter foster care (34 × 0.05 = 2 hours).
• Section 1355.44(i) is a 19 percent increase in data points to report for children to whom ICWA applies (34 × 0.19 = 6 hours).
• The total estimate of reporting the expanded ICWA related information to comply with the NPRM is eight annual burden hours (2 + 6 = 8).
Federal reimbursement under title IV-E will be available for a portion of the costs that state title IV-E agencies will incur because of the revisions proposed in this NPRM and actual costs will vary, depending on each agency's cost allocation, information system, and other factors. If this proposed regulatory action becomes final, ACF estimates that it would cost the Federal government approximately $2,216,786. For this estimate, we used the 50 percent FFP rate and because the FFP rate used in these estimates is 50 percent, we estimate the costs for Federal and non-Federal to be the same.
In the above estimates, ACF acknowledges the following: (1) ACF has used average figures for state title IV-E agencies of very different sizes and of which, some may have larger populations of children served than other agencies, and (2) these are rough estimates based on the information available to ACF. We welcome comments on the burden and costs of this NPRM in accordance with section IV of this NPRM.
OMB is required to make a decision concerning the collection of information contained in this regulation between 30 and 60 days after publication of this document in the
Executive Order 13175,
Jeff Hild, Acting Assistant Secretary of the Administration for Children & Families, approved this document on February 9, 2024.
Administrative costs, Adoption Assistance, Child welfare, Fiscal requirements (title IV-E), Grant programs—social programs, Statewide information systems.
For the reasons set forth in the preamble, ACF proposes to amend 45 CFR part 1355 as follows:
42 U.S.C. 620
(b)
(1) The title IV-E agency must report the most recent information for the applicable data elements in § 1355.44(a), (b), and (c).
(2) The title IV-E agency must report the most recent information and all historical information for the applicable data elements in § 1355.44(d) through (i).
(b) * * *
(3)
(i) Indicate whether the state title IV-E agency inquired with the child's biological or adoptive mother. Indicate “yes,” “no” or “the biological or adoptive mother is deceased.”
(ii) Indicate whether the state title IV-E agency inquired with the child's biological or adoptive father. Indicate “yes,” “no,” or “the biological or adoptive father is deceased.”
(iii) Indicate whether the state title IV-E agency inquired with the child's Indian custodian if the child has one. Indicate “yes,” “no,” or “child does not have an Indian custodian.”
(iv) Indicate whether the state title IV-E agency inquired with the child's extended family. Indicate “yes” or “no.”
(v) Indicate whether the state title IV-E agency inquired with the child. Indicate “yes” or “no.”
(vi) Indicate whether the domicile or residence of the child, the child's parent, or the child's Indian custodian is on a reservation or in an Alaska Native village. Indicate “yes” or “no.”
(4)
(i) Indicate whether the child is a member of or eligible for membership in a federally recognized Indian tribe. Indicate “yes,” “no,” or “unknown”.
(ii) If the state title IV-E agency indicated “yes” in paragraph (b)(4)(i) of this section, indicate all federally recognized Indian tribe(s) that may potentially be the Indian child's tribe(s).
(iii) Indicate whether the state title IV-E agency knows or has reason to know, that the child is an Indian child as defined in ICWA. Indicate “yes” or “no.” If the state title IV-E agency indicates “yes,” then it must complete paragraph (b)(4)(iv). If the state title IV-E agency indicates “no,” then it must leave paragraph (b)(4)(iv) blank.
(iv) Indicate the date that the state title IV-E agency first discovered the information indicating the child is or may be an Indian child as defined in ICWA.
(5)
(i) Indicate whether the Indian child's tribe(s) was sent legal notice prior to the first child custody proceeding in accordance with 25 U.S.C. 1912(a). Indicate “yes” or “no.” If the state title IV-E agency indicates “yes,” then it must complete paragraph (b)(5)(ii). If the state title IV-E agency indicates “no,” then it must leave paragraph (b)(5)(ii) blank.
(ii) Indicate the Indian tribe(s) that were sent notice as required in ICWA at 25 U.S.C. 1912(a).
(iii) Indicate whether the Indian child's parent or Indian custodian was sent legal notice prior to the first child custody proceeding in accordance with 25 U.S.C. 1912(a). Indicate “yes” or “no.”
(6)
(i) Indicate whether a court determined that ICWA applies or that the court is applying ICWA because it knows or has reason to know a child is an Indian child as defined in ICWA in accordance with 25 CFR 23.107(b)(2). Indicate “yes, ICWA applies,” “no, ICWA does not apply,” or “no court determination.” If the state title IV-E agency indicates “yes, ICWA applies,” then it must complete paragraphs (b)(6)(ii) and (iii) and paragraph (i) of this section; otherwise leave blank.
(ii) Indicate the date that the court determined that ICWA applies or determined to apply ICWA in accordance with 25 CFR 23.107(b)(2).
(iii) Indicate the Indian tribe that the court determined is the Indian child's tribe for ICWA purposes.
(i)
(1)
(i) Indicate whether the child's case record indicated a request to transfer to tribal court for each removal date reported in paragraph (d)(1) of this section. Indicate “yes” or “no.” If the state title IV-E agency indicates “yes,” the state title IV-E agency must complete paragraph (ii) of this section. If the state title IV-E agency indicates “no,” the state title IV-E agency must leave paragraph (ii) of this section blank.
(ii) Indicate whether the child's case record indicated that there was a denial of the request to transfer to tribal court. Indicate “yes” or “no.”
(2)
(i) Indicate whether the state court found beyond a reasonable doubt that continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child in accordance with 25 U.S.C. 1912(f). Indicate “yes” or “no.”
(ii) Indicate whether the court decision to involuntarily terminate parental rights included the testimony of one or more qualified expert witnesses in accordance with 25 U.S.C. 1912(f). Indicate “yes” or “no.”
(iii) Indicate whether, prior to terminating parental rights, the court concluded that active efforts have been made to prevent the breakup of the Indian family and that those efforts were unsuccessful in accordance with 25 U.S.C. 1912(d). Indicate “yes” or “no.”
(3)
(i) Executed in writing. Indicate “yes” or “no.”
(ii) Recorded before a court of competent jurisdiction. Indicate “yes” or “no.”
(iii) Accompanied with a certification by the court that the terms and consequences of consent were explained on the record in detail and were fully understood by the parent or Indian custodian in accordance with 25 CFR 23.125(a) and (c). Indicate “yes” or “no.”
(4)
(i) Indicate whether the court order for foster care placement was made as a result of clear and convincing evidence that continued custody of the Indian child by the parent or Indian custodian was likely to result in serious emotional or physical damage to the Indian child in accordance with 25 U.S.C. 1912(e) and 25 CFR 23.121(a). Indicate “yes” or “no.”
(ii) Indicate whether the evidence presented for foster care placement as indicated in paragraph (i)(4)(i) of this section included the testimony of a qualified expert witness in accordance with 25 U.S.C. 1912(e) and 25 CFR 23.121(a). Indicate “yes” or “no.”
(iii) Indicate whether the evidence presented for foster care placement as indicated in paragraph (i)(4)(i) indicates that prior to each removal reported in paragraph (d)(1) of this section that active efforts have been made to prevent the breakup of the Indian family and that those efforts were unsuccessful in accordance with 25 U.S.C. 1912(d). Indicate “yes” or “no.”
(5)
(i) A member of the Indian child's extended family.
(ii) A foster home licensed, approved, or specified by the Indian child's tribe.
(iii) An Indian foster home licensed or approved by an authorized non-Indian licensing authority.
(iv) An institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.
(v) A placement that complies with the order of preference for foster care or pre-adoptive placements established by an Indian child's tribe.
(6)
(7)
(8)
(i) Request of one or both of the Indian child's parents.
(ii) Request of the Indian child.
(iii) The unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the placement preferences in ICWA at 25 U.S.C. 1915 but none has been located.
(iv) The extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live.
(v) The presence of a sibling attachment that can be maintained only through a particular placement.
(9)
(10)
(i) A member of the Indian child's extended family.
(ii) Other members of the Indian child's tribe.
(iii) Other Indian families.
(iv) A placement that complies with the order of preference placements established by an Indian child's tribe.
(11)
(12)
(13)
(i) Request of one or both of the child's parents.
(ii) Request of the Indian child.
(iii) The unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the adoptive placement preferences in ICWA at 25 U.S.C. 1915 but none has been located.
(iv) The extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the adoptive placement preferences live.
(v) The presence of a sibling attachment that can be maintained only through a particular adoptive placement.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS is proposing to codify a schedule of restricted-fishing days (RFDs) for the 2024 fishing year and subsequent fishing years; reestablish a General category default retention limit for large medium or giant bluefin tuna (BFT) on open days; and make clarifications to the BFT dealer regulations and the definition of a bluefin statistical document (BSD) tag. This proposed action is necessary to increase the likelihood of pacing General category landings to extend fishing opportunities through a greater portion of the General category time period subquotas. Lastly, this proposed action would clarify existing regulations to ensure better understanding and compliance by General category quota participants.
Written comments may be submitted via
You may submit comments on this document, identified by NOAA-NMFS-2024-0021, by electronic submission. Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to
Copies of this proposed rule and supporting documents are available from the HMS Management Division website at
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
The BFT fishery is a quota-managed fishery, and the annual U.S. BFT quota is established by binding recommendations of ICCAT. The U.S. BFT quota established through that process is implemented domestically through rulemaking and allocated among six quota categories (General, Angling, Harpoon, Longline, Trap, and Reserve). This proposed rule considers actions specific to the General category
NMFS originally established regulatory authority to set so-called “no-fishing” days for BFT in the General category fishery in 1995 (60 FR 38505, July 27, 1995). In that final rule, NMFS described no-fishing days as an effort control that could be used to extend the General category fishing season, prevent overharvest of quota in any period, and improve distribution of fishing opportunities without increasing BFT mortality. The regulation provided that scheduled no-fishing days would be published in the
Due to increased BFT landings rates in the General category in 2019 and 2020 and numerous requests from members of the Atlantic HMS Advisory Panel, General category quota participants, and Atlantic tunas dealers, NMFS proposed to schedule RFDs on all Tuesdays, Fridays, and Saturdays from July 20 through November 30, 2021 (86 FR 25992, May 12, 2021). Due to administrative timing issues related to publication in the
NMFS established a default daily retention limit for large medium and giant BFT of one fish per vessel in 1995 (60 FR 38505, July 27, 1995). To provide for maximum utilization of the quota, NMFS had the flexibility to increase or decrease the large medium and giant BFT daily retention limit over a range of zero (on RFDs) to a maximum of three per vessel via an inseason action. In 2011, NMFS adjusted the upper limit of this range to five fish per vessel to increase opportunities to harvest the General category quota while maintaining the default retention limit of one fish per vessel (76 FR 74003, December 30, 2011). The default retention limit was maintained through 2018, when NMFS published a final rule that made editorial corrections amending the regulations for HMS (83 FR 33148, July 17, 2018). In that action, NMFS inadvertently removed regulatory text stating the default retention limit on non-RFD fishing days. To correct this technical error, with this action NMFS proposes to again establish default General category retention limits on non-RFDs.
The purpose of this proposed action is to modify the process of scheduling RFDs and reestablish General category default daily retention limits for large medium or giant BFT on open days. As effort controls, both RFDs and daily retention limits are meant to extend General category fishing opportunities through a greater portion of the General category time period subquotas, prevent overharvest of quota in any period, and improve distribution of fishing opportunities without increasing BFT mortality. NMFS has prepared a draft Environmental Assessment (EA), Regulatory Impact Review (RIR), and an Initial Regulatory Flexibility Analysis (IRFA) that present and analyze the anticipated environmental, social, and economic impacts of each alternative considered for this proposed rule. A brief summary of the alternatives considered is provided below. Additional information regarding this action and BFT management overall can be found in the FMP and its amendments, the annual HMS Stock Assessment and Fishery Evaluation Reports, and online at
Under Alternative B, which NMFS is considering as four sub-alternatives (B1 is the preferred alternative), NMFS would modify the process for setting an RFD schedule. Under these alternatives, instead of conducting an annual rulemaking to set an annual RFD schedule, NMFS would set a default RFD schedule for specific General category time periods and days for the 2024 fishing year and subsequent years. If the scheduled RFDs are codified, NMFS may remove them or establish additional RFDs, as appropriate, through further rulemaking. In recent years, NMFS has noticed that the number of BFT landed but unsold by General category quota participants have increased in association with high rates of landings. Codifying RFDs would provide General category quota participants and dealers advanced time (
NMFS may waive these scheduled RFDs for the specific time periods and days on which they apply by adjusting the daily BFT retention limit from zero up to five after considering the criteria at § 635.27(a)(7). Considerations include, among other things, review of dealer reports, daily landing trends, and the availability of BFT on fishing grounds. NMFS would announce any such waiver by filing a retention limit adjustment with the Office of the Federal Register for publication. NMFS also may waive previously designated RFDs effective upon closure of the General category fishery so that persons aboard vessels permitted in the General category may conduct only tag-and-release fishing for BFT under § 635.26(a).
Under the preferred alternative for a General category daily retention limit (Alternative D3), NMFS would establish a General category daily retention limit of three large medium or giant BFT per vessel on open days in June and one large medium or giant BFT per vessel on open days for all other months in time periods where the fishery is open (
These preferred alternatives would help General category quota participants, tournament operators, and dealers with fishery-related planning (
In addition to the proposed measures, in the draft EA for this action, NMFS analyzed a status-quo alternative (Alternative A) that would maintain the recent practice of NMFS conducting annual rulemaking to set a schedule of RFDs for upcoming fishing years. NMFS does not prefer the no action alternative as administrative timing issues could occur related to final publication of an RFD schedule (similar to the 2021 RFD rulemaking) resulting in a later start of RFDs. Furthermore, Alternative A would not provide the same benefit to General category quota participants, tournament operators, and dealers in terms of being able to plan for RFDs. The draft EA for this action also describes the impacts of three other RFD schedules: a 3-day-per-week RFD schedule for every Thursday, Friday, and Saturday from July 1 through November 30 (Alternative B2); a 3-day-per-week RFD schedule for every Friday, Saturday, and Sunday from July 1 through November 30 (Alternative B3); and a 4-day (or more)-per-week RFD schedule from July 1 through November 30 (Alternative B4). Although Alternatives B2, B3, and B4 could pace landings just as or more effectively than the preferred alternative, implementing any of these alternatives is unlikely to allow adequate time for fish products to move through the market. Consecutive RFDs could result in market gluts leading to an influx of BFT product (
The draft EA also describes the impacts of eliminating RFDs (Alternative C). NMFS does not prefer this alternative as it would not meet the objectives of this rulemaking inasmuch as it would result in shorter time periods when fishing is allowed and thus reduced fishing opportunity.
Lastly, the draft EA describes the impacts of two other alternatives for General category default daily retention limits as follows: maintain the current regulations at § 635.23(a)(3), which do not establish a default retention limit on open days (
Dealer reporting regulations apply to all dealers who first receive HMS products (§ 635.5(b)). Under § 635.2, “first receive” means to take possession for commercial purposes of any HMS or any part thereof by purchasing, trading or bartering for it from the fishing vessel owner or operator once it is offloaded, except when such possession is solely for transport. A BFT dealer or a dealer's agent must affix a dealer tag to each BFT purchased or received from a U.S. vessel immediately upon offloading the BFT (§ 635.5(b)(2)(ii)). As defined under § 635.2, a dealer tag is a numbered, flexible, self-locking ribbon issued by NMFS to a dealer for the identification of BFT sold to a permitted dealer. A dealer tag is not transferable and is usable only by the dealer to whom it is issued.
With the recent use of RFDs, NMFS has received questions about dealer requirements relative to RFDs (
Currently, on an RFD, Atlantic Tunas General category permitted vessels may not fish for (including catch-and-release or tag-and-release fishing), possess, retain, land, or sell BFT (§ 635.23(a)(2)). HMS Charter/Headboat permitted vessels with a commercial sale endorsement also are subject to these restrictions that preclude fishing commercially for BFT or selling the BFT under the General category restrictions and retention limits, but such vessels may still fish for, possess, retain, or land BFT when fishing recreationally under applicable HMS Angling category rules (§ 635.23(c)(2)). NMFS is not proposing changes to these restrictions that apply on RFDs.
Accordingly, regardless of when a BFT is landed by a General category permitted vessel or an HMS Charter/Headboat permitted vessel with a commercial sale endorsement fishing commercially for BFT under the General category restrictions and retention limits, BFT that is intended for sale must be in the possession of a permitted dealer no later than 2400 local time the day prior to an RFD (
NMFS is also proposing modifications to the applicable dealer regulations in section § 635.5(b) to clarify that, on an RFD, a dealer or dealer's agent may not purchase or place a dealer tag on a BFT that is on or has been offloaded from an Atlantic Tunas General category or HMS Charter/Headboat category permitted vessel, regardless of when the fish was landed. Similarly, NMFS proposes in section § 635.5(b)(2)(ii)(A) that a dealer or dealer's agent must affix a dealer tag to each BFT purchased or first received from a U.S. vessel immediately upon offloading the BFT. On an RFD, a dealer or dealer's agent may continue to first receive, place dealer tags on, or purchase BFT from vessels with other Atlantic Tunas permits (
Pursuant to section 304(g) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, ATCA, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
Although the agency has concluded that the proposed rule will not have a significant economic impact on a substantial number of small entities, in the interest of transparency an IRFA was prepared consistent with the standards in section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact that this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the
Section 603(b)(1) of the RFA requires agencies to describe the reasons why the action is being considered. The purpose of this proposed rulemaking is, consistent with the objectives of the 2006 Consolidated HMS FMP and its amendments, the Magnuson-Stevens Act, ATCA, and other applicable law, to modify the process of scheduling RFDs and reestablish a General category default daily retention limit for large medium or giant BFT on open days. As effort controls, both RFDs and daily retention limits are meant to extend General category fishing opportunities through a greater portion of the General category time period subquotas, prevent overharvest of quota in any period, and improve distribution of fishing opportunities without increasing BFT mortality. Lastly, this action would clarify existing HMS dealer regulations and the definition of a BSD tag to improve the understanding of vessel and dealer restrictions and requirements for participants in the General category BFT fishery.
Section 603(b)(2) of the RFA requires agencies to state the objectives of, and legal basis for, the proposed action. The objective of this proposed rulemaking to simplify and clarify the regulatory process regarding RFDs. RFDs increase the likelihood of pacing General category landings to extend fishing opportunities through a greater portion of the General category time period subquotas. Additionally, this proposed action would clarify the General category retention limit on open days for better understanding by General category quota participants and clarify the existing dealer requirements to ensure better compliance by dealers and dealers' agents when operating on an RFD. The legal basis for the proposed rule is the Magnuson-Stevens Act.
Section 603(b)(3) of the RFA requires agencies to provide an estimate of the number of small entities to which the rule would apply. NMFS established a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry, North American Industry Classification System (NAICS 11411), for RFA compliance purposes. The Small Business Administration (SBA)
Section 603(b)(4) of the RFA requires agencies to describe any new reporting, record-keeping, and other compliance requirements. This proposed rule does not contain any new collection of information, reporting, or record-keeping requirements. This proposed rule would modify the process of scheduling RFDs, set a schedule of RFDs for 2024 fishing year and subsequent fishing years, reestablish a General category default retention limit for BFT on open days (
Under section 603(b)(5) of the RFA, agencies must identify, to the extent practicable, relevant Federal rules which duplicate, overlap, or conflict with the proposed action. Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements, domestic laws, and other fishery management measures. These include, but are not limited to, the Magnuson-Stevens Act, ATCA, the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act, the National Environmental Policy Act, the Paperwork Reduction Act, and the Coastal Zone Management Act. This proposed action has been determined not to duplicate, overlap, or conflict with any Federal rules.
Under section 603(c) of the RFA, agencies must describe any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. Specifically, the RFA (5 U.S.C. 603(c)(1) through (4)) lists four general categories of significant alternatives to assist an agency in the development of significant alternatives. These categories of alternatives are: (1) establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage of the rule, or any part thereof, for small entities.
Regarding the first, second, and fourth categories, NMFS cannot establish differing compliance or reporting requirements for small entities or exempt small entities from coverage of the rule or parts of it because all of the businesses impacted by this rule are considered small entities, and thus the requirements are already designed for small entities. Regarding the third category, NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking. As described below, NMFS analyzed several different alternatives in this proposed rulemaking and provides rationales for identifying the preferred alternatives to achieve the desired objectives. NMFS did not develop alternatives for the regulatory clarifications of dealer activities on RFDs. The effects of these changes are primarily administrative and no environmental or economic effects are anticipated.
The alternatives considered and analyzed are described below. The IRFA assumes that each vessel will have similar catch and gross revenues to show the relative impact of the proposed action on vessels.
Under Alternative A, the status-quo alternative, NMFS would maintain the status quo and, as needed, would conduct annual rulemaking for RFDs. The average annual revenue for BFT landed in the General category is approximately $9.9 million based on the average ex-vessel price from 2018 through 2022 and adjusted for inflation using the GDP Deflator. Overall, RFDs do not modify the General category quota and are designed to extend fishing opportunities through a greater proportion of the time periods in which they apply by spreading fishing effort out over time. To the extent that the ex-vessel revenue for a BFT sold by a General or HMS Charter/Headboat permitted vessel (with a commercial endorsement) may be higher when a lower volume of domestically caught BFT is on the market at one time, the use of RFDs may result in some short-term increase in BFT prices, and the value of BFT for the applicable General category time periods could increase. These increases in price are unlikely to impact the overall average annual revenue. NMFS expects this status quo alternative would have neutral economic impacts as it does not expect this alternative to have new economic impacts on small entities participating in the fishery.
Under Alternative B, which NMFS is considering as four sub-alternatives (B1 is the preferred alternative), NMFS would modify the process for setting an RFD schedule. Under this alternative, NMFS would no longer conduct an annual rulemaking to set an RFD schedule but would codify the General category time periods and days in which RFDs would be applied. NMFS may waive these scheduled RFDs for the specific time periods and days on which they apply by adjusting the daily BFT retention limit from zero up to five after considering the criteria at § 635.27(a)(7). NMFS also may waive previously designated RFDs effective upon closure of the General category fishery so that persons aboard vessels permitted in the General category may conduct only tag-and-release fishing for BFT under § 635.26(a). Codification of RFDs would provide greater certainty and predictability than annual RFD rulemaking, providing some positive economic impacts to General category participants and dealers in terms of business planning. As stated above, the average annual revenue for BFT landed in the General category is approximately $9.9 million based on the average ex-vessel price from 2018 through 2022 and adjusted for inflation using the GDP Deflator. To the extent that the ex-vessel revenue for a BFT sold by a General or HMS Charter/Headboat permitted vessel with a commercial endorsement may be higher when a lower volume of domestically caught BFT is on the market at one time, the use of RFDs may result in some short-term increase in BFT prices, and the value of BFT for the applicable General category time periods could increase.
As part of Alternative B, NMFS is considering four sub alternatives specifying different days of the week when RFDs would take place to the RFD schedule for 2024 and subsequent years. In general, three of the sub alternatives (B1, B2, B3) have similar economic impacts because they establish the same number of RFDs and RFDs do not modify the General category quota and are designed to extend fishing opportunities through a greater proportion of the time periods in which they apply by spreading fishing effort out over time. To the extent that the ex-
Under Alternative B1, the preferred alternative, NMFS would codify a 3-day-per-week RFD schedule for every Tuesday, Friday, and Saturday from July 1 through November 30. This sub alternative could have neutral to minor beneficial economic impacts on small entities participating in the fishery beyond those currently occurring because of the ability to plan provided by the schedule of RFDs, but these short-term increases in price are unlikely to impact the overall average annual revenue.
Under Alternative B2, NMFS would codify a 3-day-per-week RFD schedule for every Thursday, Friday, and Saturday from July 1 through November 30. This sub alternative could have neutral to minor adverse economic impacts on small entities participating in the fishery as four consecutive landings days could increase the influx of BFT products into the market resulting in a short-term decrease in ex-vessel prices and revenues for General category participants. This short-term decrease in BFT prices are unlikely to impact the overall average annual revenue.
Under Alternative B3, NMFS would codify a 3-day-per-week RFD schedule for every Friday, Saturday, and Sunday from July 1 through November 30. This sub-alternative could have neutral to minor adverse economic impacts on small entities participating in the fishery as RFDs for an entire weekend could negatively impact General category participants who can only commercially fish on the weekends. Many participants are known to work in other sectors on weekdays and are only available to fish part-time on weekends. Additionally allowing four consecutive landing days could increase the influx of BFT products into the market resulting in a short-term decrease in ex-vessel prices and revenues for General category participants. This short-term decrease in BFT prices are unlikely to impact the overall average annual revenue.
Under Alternative B4, NMFS would codify a 4-day (or more)-per-week RFD schedule. This sub alternative could have minor adverse to adverse economic impacts on small entities participating in the General category fishery as four or more RFDs could, rather than extending fishing opportunities, actually limit opportunities for General category participants to land the quota and subquotas resulting in derby-like conditions. This derby-like effect could lead to an influx of BFT products into the market that could result in a decrease in ex-vessel prices and revenues for General category participants, which may negatively impact overall average revenue. In addition, variable weather conditions where General category participants may be unable to take advantage of more limited open days may lead to an underharvest of the General category quota and subquotas, and underutilization of the available fishery resource.
Under Alternative C, NMFS would remove RFDs from the existing HMS regulations and no longer set RFDs for the General category. As stated earlier in this document, the goal of RFDs are to extend General category fishing opportunities through a greater portion of the General category time periods. Without RFDs, high catch rates early in each time period would prompt NMFS to prematurely close the General category because the quota has been reached, even though fish may still be available on fishing grounds. This premature closure would mean commercial fishermen operating under the General category could not fish for, possess, retain, or sell commercial sized fish. To the extent that the ex-vessel revenue for a BFT sold by a General or HMS Charter/Headboat permitted vessel (with a commercial endorsement) may be higher when a lower volume of domestically caught BFT is on the market at one time, the use of RFDs may result in some short-term increase in BFT prices, and the value of the General category time period subquotas could increase. This alternative could have neutral to minor adverse economic impacts on small entities participating in the fishery. General category participants would likely land the subquotas over an extremely short time period increasing the influx of BFT products into the market, potentially resulting not only in an earlier closure of the fishery but also a slight decrease in ex-vessel prices and revenues for General category participants which may negatively impact overall average revenue.
Under Alternative D1, the status-quo alternative, NMFS would maintain the current regulations at § 635.23(a)(3) which do not establish a default retention limit on open days (
Under Alternative D2, NMFS would establish a General category default daily retention limit of one large medium or giant BFT per vessel on days when the General category is open. The daily retention limit would apply to General category permitted vessels and HMS Charter/Headboat permitted vessels with a commercial sale endorsement when fishing commercially for BFT. Retention limits would likely have neutral to minor beneficial economic impacts on small entities participating in the General category fishery as they could extend the length of the General category time periods when BFT can be landed, providing additional fishing opportunities while also reducing the influx of BFT products into the market which could result in a short-term increase in ex-vessel prices for General category participants. However, since the current practice in recent years is to set a daily retention limit of three large medium or giant BFT per vessel on days when the General category is open, starting June 1 through June 30, a default of one BFT could potentially constrain the revenue of vessels that might have been able to land two or three BFT on open days from June 1 through June 30. Although this alternative may have a short-term minor adverse impact on a limited number of individuals and their revenues (likely resulting in a short-term decrease in ex-vessel prices), NMFS expects that the
Under Alternative D3, the preferred alternative, NMFS would establish a General category daily retention limit of three large medium or giant BFT per vessel on open days in June and one large medium or giant BFT on days during all other months when the fishery is open (
This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Statistics, Treaties.
For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 635 as follows:
16 U.S.C. 971
Bluefin statistical document (BSD) tag means a numbered tag affixed to a BFT issued by any country in conjunction with a catch statistics information program and recorded on a BSD.
(b) * * *
(2) * * *
(ii) * * *
(A)
(a)
(1) No school, large school, or small medium size class BFT may be possessed, retained, landed, or sold on or from a vessel that has an Atlantic Tunas General category permit.
(2) The following default daily retention limits apply to vessels that have an Atlantic Tunas General category permit or HMS Charter/Headboat permit with a commercial sale endorsement fishing under the General category restrictions and retention limits when the General category is open and the day is not an RFD and the retention limit has not been adjusted per paragraph (a)(3) of this section.
(i) January 1 through March 31—one large medium or giant BFT, per vessel per day;
(ii) June 1 through June 30—three large medium or giant BFT per vessel per day; and
(iii) July 1 through December 30—one large medium or giant BFT per vessel per day.
(3) To provide for maximum utilization of the quota for BFT, NMFS may adjust the daily retention limit of large medium or giant BFT over a range from zero (on RFDs) to a maximum of five per vessel per the inseason criteria provided under § 635.27(a)(7).
(4) Regardless of the length of trip, no person may land, possess, or retain more than the daily retention limit in effect for that day. When the applicable retention limit for large medium or giant BFT has been reached, no person aboard such vessels may continue to fish, and the vessel must immediately proceed to port.
(5) From July 1 through November 30 of each year, every Tuesday, Friday, and Saturday is an RFD unless waived per paragraph (a)(7) of this section. On an RFD, no person who has been issued an Atlantic Tunas General category permit or issued an HMS Charter/Headboat permit and fishing commercially may fish for, possess, retain, land, or sell a BFT of any size class; or catch and release or tag and release, as specified under § 635.26(a), a BFT of any size class.
(6) NMFS may remove or establish additional designated RFDs, as appropriate, following public comment via publication in the
(7) Designated RFDs may be waived in the following circumstances.
(i) If the General category fishery is closed under § 635.28(a), any remaining RFDs for the relevant time period(s) are waived so that persons aboard vessels issued an Atlantic Tunas General category permit may conduct tag-and-release for BFT under § 635.26(a).
(ii) If, based on the criteria at § 635.27(a)(7), NMFS determines that RFDs are not necessary, NMFS may waive RFDs by increasing the daily retention limit per paragraph (a)(3) for a specific time period(s) via publication in the
(c) * * *
(3) When fishing other than in the Gulf of Mexico when the General
(a) * * *
(1) A person who owns or operates a vessel from which an Atlantic tuna is landed or offloaded may sell such Atlantic tuna only if that vessel has a valid HMS Charter/Headboat permit with a commercial sale endorsement; a valid Atlantic Tunas General, Harpoon, Longline, or Trap category permit; or a valid HMS Commercial Caribbean Small Boat permit issued under this part and the appropriate category has not been closed as specified at § 635.28(a). No person may sell a BFT smaller than the large medium size class. No large medium or giant BFT may be sold if caught by a person aboard a vessel with an Atlantic HMS Charter/Headboat permit fishing in the Gulf of Mexico at any time or outside the Gulf of Mexico when the General category fishery has been closed (see § 635.23(c)). A person may sell Atlantic BFT only to a dealer that has a valid permit for purchasing Atlantic tunas issued under this part. A person may not sell or purchase Atlantic tunas harvested with speargun fishing gear. A person issued an Atlantic Tunas General category permit or HMS Charter/Headboat permit with a commercial sale endorsement must land, sell or transfer a BFT to a dealer that has a valid permit for purchasing Atlantic tunas no later than 2400 local time the day prior to an RFD, as specified at § 635.23(a). If that person is unable to sell or otherwise transfer the BFT to a dealer who has a dealer permit for Atlantic tunas no later than 2400, the person must follow the restrictions applicable to landed but not sold BFT specified at § 635.5(a)(3). In no case shall such person possess a BFT on an RFD.
(2) * * *
(iii) Dealers may not first receive a BFT from a vessel that has a valid Atlantic Tunas General permit or HMS Charter/Headboat permit with a commercial sale endorsement after 0000 local time on an RFD, as specified at § 635.23(a).
(b) * * *
(13) As a vessel with an Atlantic Tunas General category permit, fail to immediately cease fishing and immediately return to port after catching the applicable limit of large medium or giant bluefin tuna on a commercial fishing day, as specified in § 635.23(a)(4).
(29) As a dealer or dealer's agent, purchase, first receive, or affix a dealer tag to a BFT that is on or from a vessel that has been issued an Atlantic Tunas General category permit or HMS Charter/Headboat permit with a commercial sale endorsement, as specified in § 635.5(b)(2)(ii)(A) after 0000 local time on an RFD.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes Federal management measures for the summer flounder and black sea bass recreational fisheries. The implementing regulations for these fisheries require NMFS to publish recreational measures for the fishing year and to provide an opportunity for public comment. The intent of this action is to set management measures that allow the recreational fisheries to achieve, but not exceed, the recreational harvest targets and thereby prevent overfishing.
Comments must be received by March 11, 2024.
You may submit comments on this document, identified by NOAA-NMFS-2024-0020 by the following method:
•
Emily Keiley, Fishery Policy Analyst, (978) 281-9116, or
The Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission) cooperatively manage summer flounder, scup, and black sea bass. The Council and the Commission's Management Boards meet jointly each year to recommend recreational management measures. For summer flounder and black sea bass, NMFS must implement coastwide measures or approve conservation-equivalent measures per 50 CFR 648.102(d) and 648.142(d), as soon as possible following the Council and Commission's recommendation. This action proposes establishing conservation equivalency (
Framework Adjustment 17 to the Summer Flounder and Black Sea Bass Fishery Management Plan (FMP) and Framework Adjustment 6 to the Bluefish FMP (March 9, 2023, 88 FR 14499), referred to as the Percent Change Approach, established a new process for determining when recreational management measures (
The Council and the Summer Flounder, Scup and Black Sea Bass (Board) then consider the Monitoring Committee's recommendations and any public comment in making their recommendations. The Council forwards its recommendations to NMFS for review. The Commission similarly adopts recommendations for the states. NMFS is required to review the Council's recommendations to ensure that they are consistent with the targets specified for summer flounder, scup, and black sea bass in the FMP and all applicable laws and Executive Orders before ultimately implementing measures for Federal waters. Commission measures are final at the time they are adopted.
Application of the Percent Change Approach and the bio-economic model used to evaluate recreational behavior and catch resulted in a recommended 10-percent reduction in recreational scup harvest.
According to the 2023 management stock assessment (using data through 2022), scup is not overfished, and overfishing is not occurring. Scup biomass is 246 percent of the biomass target, which puts scup in the “very high” (
The Recreational Demand Model was used to generate an estimate of expected 2024-2025 harvest under status quo (
In 2023, recreational management measures were implemented to achieve a 10-percent reduction in scup harvest. Preliminary harvest estimates through wave 5 suggest that harvest was approximately 37 percent lower in 2023 than the 2022 harvest through wave 5.
The current Federal recreational scup management measures are a 10-inch (25.4-centimeter (cm)) minimum fish size, a 50-fish per person possession limit, and a year-round open season. State measures are similar but vary slightly due to differences in scup availability. We are proposing no changes to the Federal recreational scup management measures for 2024 or 2025. Recreational scup harvest in Federal waters accounts for approximately 5 percent of the total recreational harvest. Because the majority of recreational scup harvest occurs in state waters, the Council and Commission determined that changes to state-waters measures would be the most effective way to achieve the required 10-percent reduction. The current Federal measures, in conjunction with changes to state-waters measures, are projected to achieve the needed 10-percent harvest reduction. The state and Federal measures will remain in place through 2025. Recreational scup measures will be reevaluated prior to the 2026 fishing year.
Under conservation equivalency, Federal recreational measures are waived and federally permitted party/charter vessels and all recreational vessels fishing in Federal waters are subject to the recreational fishing measures implemented by the state in which they land. This approach allows for more customized measures at a state or regional level that are likely to meet the needs of anglers in each area, compared to coastwide measures that may be advantageous to anglers in some areas and unnecessarily restrictive in others. The combination of state or regional measures must be “equivalent” in terms of conservation to a set of “non-preferred coastwide measures,” which are recommended by the Council and the Board.
The Council and Board recommend that either state- or region-specific recreational measures be developed (
When conservation equivalency is recommended, and following
In addition, the Council and the Board must recommend precautionary default measures when recommending conservation equivalency. The Commission would require adoption of the precautionary default measures by any state that either does not submit a management proposal to the Commission's Technical Committee or that submits measures that are not conservationally equivalent to the coastwide measures.
The development of conservation-equivalency measures happens both at the Commission and individual state level. The selection of appropriate data and analytical techniques for technical review of potential state conservation-equivalent measures, and the process by which the Commission evaluates and recommends proposed conservation-equivalent measures, are wholly a function of the Commission and its individual member states. Individuals seeking information regarding the process to develop specific state or regional measures, or on the Commission process for technical evaluation of proposed measures, should contact the marine fisheries agency in the state of interest, the Commission, or both.
Once the states and regions select their final 2024 and 2025 summer flounder and 2024 black sea bass management measures through their respective development, analytical, and review processes and submit them to the Commission, the Commission will conduct further review and evaluation of the submitted proposals. The Commission will notify NMFS as to which proposals have been approved or disapproved. NMFS has no overarching authority in the development of state or Commission management measures but is an equal participant along with all the member states in the review process. NMFS neither approves nor implements individual states' measures but retains the final authority either to approve or to disapprove the use of conservation equivalency in place of the coastwide measures in Federal waters. The final combination of state and regional measures will be detailed in a letter from the Commission to the Greater Atlantic Regional Fisheries Office certifying that the combination of state and regional measures has met the conservation objectives under Addendum XXXII to the Commission's Interstate FMP. NMFS will publish its determination on 2024 and 2025 conservational equivalency as a final rule in the
This action proposes adopting conservation equivalency for summer flounder in 2024 and 2025. The non-preferred coastwide measures approved by the Council and Board are: (1) an 18.5-inch (46.99-cm) minimum fish size; (2) a 3-fish per person possession limit; and (3) an open season from May 8-September 30. These coastwide measures will be waived for 2024 and 2025 if conservation equivalency is approved through this action. However, the coastwide measures become the default management measures the year after conservation equivalency expires (in this case, 2026) until the joint process establishes either coastwide or conservation-equivalency measures for the next year.
The 2024 and 2025 precautionary default measures recommended by the Council and Board are identical to those in place for 2021 through 2023: (1) a 20.0-inch (50.8-cm) minimum fish size; (2) a 2-fish per person possession limit; and (3) an open season of July 1-August 31. If a state or region does not submit a conservationally equivalent proposal, or submits a proposal for management measures that do not meet the required level of conservation, the Commission will require the state or region to implement the precautionary default measures.
Application of the Percent Change Approach and the bio-economic model used to evaluate recreational behavior and summer flounder catch results in a required 28-percent reduction in summer flounder harvest.
The Recreational Demand Model was used to generate an estimate of expected 2024-2025 harvest under status quo (
According to the 2023 management track stock assessment (using data through 2022), summer flounder is below the target stock size (
This action proposes the continued adoption of conservation equivalency for black sea bass in 2024. The non-preferred coastwide and precautionary default measures would be the same in 2024 as they were in 2023.
The non-preferred coastwide measures for 2024 include: (1) a 15-inch (38.1-cm) minimum size; (2) a 5-fish possession limit; and (3) a May 15-September 8 open season. The precautionary default measures would be implemented in any state or region that failed to develop adequate measures to constrain landings as required by the conservation-equivalency guidelines. The precautionary default measures in 2024 include: (1) a 16-inch (40.64-cm) minimum size; (2) a 2-fish possession limit; and (3) a June 1-August 31 open season.
Under the Percent Change Approach, recreational measures are intended to be reevaluated every other year, in conjunction with the assessment cycle. The Percent Change Approach uses the biomass from the assessment to partially inform what percent change is required. However, NMFS did not get a new black sea bass stock assessment this year as originally anticipated. A new management track assessment will be available later in 2024, and that will be used to inform 2025 specifications and potential adjustments to recreational management measures. In the absence of a new assessment this year, the Monitoring Committee, Council, and Board recommended maintaining the current 2023 measures through 2024, such that 2024 is treated as “year two” of the management measures. Treating 2024 as the second year in the recreational management cycle and aligning the evaluation of management measures with new assessment information is consistent with the intent of the Percent Change Approach, specifically, to create more stability in measures, and better align management measures with stock status.
The definition of a recreational fishing vessel currently references the recreational scup fishery; however, the definition applies to all recreational fisheries. This action corrects this definition, removing the reference to the scup fishery.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS finds that a 15-day comment period for this action provides a reasonable opportunity for public participation in this action pursuant to the Administrative Procedure Act section 553(c) (5 U.S.C. 553(c)), while also ensuring that the final recreational management measures are in place before the majority of recreational state fisheries open. NMFS could not publish this proposed rule at an earlier date. The recreational management measure setting process begins after the Council and Board set the annual specifications. The Council's Monitoring Committee evaluate the needed changes in recreational harvest and develop recommendations for coastwide management measures for the Council and Board to consider. At the December 12-14, 2023, meeting the Council and Board voted on recommended recreational management measures. Council staff then prepared and submitted those recommendations to NMFS on January 16, 2024. The proposed rule was submitted to the Department of Commerce Office of General Council on February 8, 2024. Given the time needed to review the recommendations and prepare the Federal rulemaking, this is the earliest this rule could be published.
Additionally, stakeholder and industry groups have been involved with the development of this action and have participated in public meetings throughout the past year. Generally, stakeholders are supportive of the use of conservation equivalency because it allows states, and regions, more flexibility to set measures, instead of one set of coastwide measures that apply to all. A prolonged comment period and subsequent potential delay in implementation past the start of the recreational fishing season would be contrary to the public interest, as it could create confusion both in the recreational fisheries regarding the management measures, and with state agencies as they prepare and finalize their recreational management measures.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Council conducted an evaluation of the potential socioeconomic impacts of the proposed measures.
Entities affected by this action include recreational for-hire operations holding Federal party/charter permits for summer flounder, black sea bass, or both species. Individual anglers and for-hire vessels that are only permitted to operate in state waters are not considered “small entities” under the Regulatory Flexibility Act (RFA) and thus economic impacts on private recreational anglers are not discussed here.
Vessel ownership data
A total of 482 affiliates had a Federal party/charter permit for summer flounder, black sea bass, or both species during 2018-2022. All 482 affiliates were categorized as small businesses based on their average 2018-2022 revenues for any species. It is not possible to determine what proportion of their revenues came from fishing for an individual species. Nevertheless, given the popularity of summer flounder and black sea bass as recreational species, revenues generated from these species are likely important for many of these affiliates at certain times of the year.
These 482 small businesses had average total annual revenues of $130,921 during 2020-2022. Their average revenues from recreational for-hire fishing (for a variety of species) were $107,429. Average annual revenues from for-hire fishing ranged from less than $10,000 for 195 affiliates to over $1,000,000 for 8 affiliates. On average, recreational fishing accounted for 85 percent of the total revenues for these 482 small businesses. The contribution of summer flounder and black sea bass to these revenues is unknown.
For-hire revenues are impacted by a variety of factors, including regulations and demand for for-hire trips for summer flounder, black sea bass, and other potential target species, as well as weather, the economy, and other factors. The restrictions proposed for summer flounder to achieve a 28-percent reduction in harvest could result in a decrease in for-hire trips, decreased for-hire revenues, and overall slight-negative impacts to recreational for-hire businesses, assuming all other factors that impact revenues remain unchanged. These impacts would be greater in magnitude for the for-hire businesses that depend more heavily on this species. Given that the state/regional measures for black sea bass are expected to remain unchanged from 2023, no impacts from the proposed action are expected. No changes to Federal recreational scup measures are proposed, therefore no impacts from the proposed Federal action are expected.
Because this rule will not have a significant economic impact on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 648 as follows:
16 U.S.C. 1801
(b)
No person may fish for summer flounder in the EEZ from October 1 to May 7 unless that person is the owner or operator of a fishing vessel issued a commercial summer flounder moratorium permit, or is issued a summer flounder dealer permit, or unless otherwise specified in the conservation-equivalency measures at § 648.107. Persons aboard a commercial vessel that is not eligible for a summer flounder moratorium permit are subject to this recreational fishing season. This time period may be adjusted pursuant to the procedures in § 648.102. Possession of summer flounder harvested from state waters during this time is allowed for state-only permitted vessels when transiting Federal waters within the Block Island Sound Transit Area, provided they follow the provisions at § 648.111 and abide by state regulations.
(a)
(a) The Regional Administrator has determined that the recreational fishing measures proposed to be implemented by the states of Maine through North Carolina for 2024 and 2025 are the conservation equivalent of the season, size limits, and possession limit prescribed in §§ 648.104(b), 648.105, and 648.106. This determination is based on a recommendation from the Summer Flounder Board of the Atlantic States Marine Fisheries Commission.
(a) The Regional Administrator has determined that the recreational fishing measures proposed to be implemented by the states of Maine through North Carolina for 2024 are the conservation equivalent of the season, size limits, and possession limit prescribed in §§ 648.146, 648.147(b), and 648.145(a). This determination is based on a recommendation from the Black Sea Bass Board of the Atlantic States Marine Fisheries Commission.
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 and other forms of information technology.
Comments regarding this information collection received by March 25, 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.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding; whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological
Comments regarding this information collection received by March 25, 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
The Federal regulations for implementing these procedures are contained in Title 7 of the Code of Federal Regulations (CFR) in 7 CFR part 271, 7 CFR part 272, and 7 CFR part 273. Part 271 contains general information and definitions, Part 272 contains requirements for participating State agencies, and Part 273 contains procedures for the certification of eligible households.
As part of the initial application and recertification process, State agencies are required to issue certain notices to households. This include notices when an application is denied, if an application is missing information, if a household misses their interview, if household benefits will soon expire, if household benefits will change, and when household benefits officially change. Notices provided by State agencies can be issued electronically or by paper.
Following initial certification or recertification, households are required to notify (FNS) of any changes to their household status on a quarterly basis, monthly basis, or whenever a change occurs based on the reporting options chosen by their State agency, in order to maintain SNAP benefits and eligibility. Most State agencies also use simplified or periodic reporting, which requires households to report only certain changes to their status during the certification period. All reporting requirements can be completed electronically or by paper.
SNAP regulations (7 CFR 273.21) provide for a one month or two-month reporting option to determine SNAP eligibility and benefits of the affected households. This requires households and State agencies to conduct reporting more frequently than a quarterly basis. This monthly collection is necessary to ensure the integrity of the program and to meet regulatory requirements. FNS notes that while all State agencies have the option to use monthly reporting, only one State uses this reporting system, and the number of households subject to this reporting system within the State is small.
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
Comments regarding this information collection received by March 25, 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.
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That statement needs to be corrected to state, “Comments regarding these information collections are best assured of having their full effect if received by March 18, 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
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That statement needs to be corrected to state, “Comments regarding these information collections are best assured of having their full effect if received by March 18, 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
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That statement needs to be corrected to state, “Comments regarding these information collections are best assured of having their full effect if received by March 18, 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
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 March 25, 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.
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That statement needs to be corrected to state, “Comments regarding these information collections are best assured of having their full effect if received by March 7, 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
Farm Service Agency, USDA.
Notice of eligibility criteria.
The Farm Service Agency (FSA) announces the revised loan volume eligibility criteria for existing lenders participating in the Preferred Lender Program (PLP) for FSA guaranteed loans or who have recently participated in PLP but lost that status due to loan volume requirements and wish to reapply. Due to decreased loan demand, many former PLP lenders, who would have otherwise been expected to have renewed their PLP status, have been unable to qualify for the renewal of their status in PLP within the past 5 years due solely to loan volume requirements. This document applies lower loan volume eligibility criteria to PLP lenders who renew their PLP status and to former PLP lenders who reapply for PLP status after losing that status because they were unable to renew due solely to decreased loan volume within the 5 years immediately preceding the date of this notice. FSA also announces the revised loan volume eligibility criteria for all lenders participating in the Certified Lender Program (CLP) for FSA guaranteed loans due to the same decreased loan demand discussed previously. This document applies less restrictive loan volume eligibility criteria to all lenders currently participating in the CLP program and lenders applying to participate in the CLP program.
Matthew T. Henderson; telephone: (202) 720-5847; email:
FSA's PLP provides qualifying lenders additional authorities and streamlined procedures under the FSA guaranteed farm loan programs. In accordance with the criteria specified in 7 CFR 762.106(c)(3), lenders who participate in the PLP must meet minimum loan volume thresholds that are established by FSA and published in a notice in the
FSA regulations in 7 CFR 762.106(f)(1) specify that the maximum term for PLP status cannot exceed 5 years and 7 CFR 762.106(f)(3) specifies that lenders must continue to meet FSA's eligibility requirements in order to renew their status.
Due to decreases in overall farm lending,
With this notice, FSA is amending the threshold required for existing PLP lenders to renew their status and for former PLP lenders whose status was not renewed due solely to a lack of loan volume within the past 5 years preceding the publication of this notice when reapplying for PLP status. This notice revises this PLP renewal threshold to 10 FSA guaranteed loans closed in the past 5 years. PLP lenders whose status was not renewed due solely to a lack of loan volume within the 5 years immediately preceding the date of this notice must re-apply for PLP status within 180 days from the publication of this notice in order to be evaluated under the revised loan volume criteria. Lenders who have never previously held PLP status, lenders who lost their PLP status more than 5 years ago, or lenders who lost their PLP status at any time for a reason other than solely a lack of loan volume must continue to meet the existing requirements of 20 loans closed in the past 5 years.
This action will allow more experienced PLP lenders to retain their status in periods of decreased application volume which will result in faster application turnaround times for both lenders and FSA staff when reviewing individual guaranteed loan applications from those lenders. Faster turnaround times ensure that producers receive their loan funds in a timely manner. Also, limiting the lower threshold of 10 FSA guaranteed loans closed in the past 5 years only to PLP lenders renewing their status and to those lenders who recently lost their PLP status ensures that it applies only to lenders with an established knowledge of FSA guaranteed loan policies, who stay abreast of any recent policy changes, as opposed to newer lender applicants who may be less experienced with FSA's guaranteed loan program requirements. Lenders who have never previously held PLP status have not yet demonstrated proficiency under the limited FSA supervision of PLP, so it is appropriate that they must still meet the higher threshold of 20 loans closed in the past 5 years to initially obtain the PLP status.
FSA's CLP provides lenders with less experience than PLP lenders the opportunity to operate under a partially streamlined origination and servicing process for FSA guaranteed loans. In accordance with the criteria specified in 7 CFR 762.106(b)(4), lenders who participate in CLP must meet minimum loan volume thresholds that are established by FSA and published in a notice in the
Due to the previously cited decreases in farm lending, including FSA guaranteed loans, many existing CLP and PLP lenders have been unable to qualify for the renewal of their respective statuses in the past 5 years. In addition, FSA has found that the inconsistency in the timeframes for the loan volume requirements (currently 5 years for PLP and 2 years for CLP) has created confusion and misunderstanding for both lenders and FSA staff.
Therefore, with this notice, FSA is also amending the threshold required for existing CLP lenders to renew their status and for new lenders to qualify for CLP status. This notice revises that CLP loan volume threshold to 10 FSA guaranteed loans closed in the past 5 years. Since guaranteed loan applications submitted by CLP lenders have more strict documentation requirements than those from PLP lenders, it is appropriate that the loan volume threshold for initially obtaining CLP status is lower than that for PLP. Additionally, since the new CLP threshold of 10 loans closed in the past 5 years is more lenient than the current requirement of 5 loans closed in the past 2 years, FSA does not see a need for a different threshold for renewal of CLP status. The following table summarizes the new loan volume requirements for both the CLP and PLP programs:
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501-3520), the approved information collection under OMB control number 0560-0155 does not change and have any new information collection requirements.
The environmental impacts have been considered in a manner consistent with the provisions of the National
The title and number of the Federal assistance programs, as found in the Assistance Listing
In accordance with Federal civil rights law and USDA civil rights regulations and policies, USDA, its agencies, offices, and employees, and institutions participating in or administering 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 or 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.
Individuals who require alternative means of communication for program information (for example, braille, large print, audiotape, American Sign Language, etc.) should contact the responsible agency or the USDA TARGET Center at (202) 720-2600 (voice and text telephone (TTY)) or dial 711 for Telecommunications Relay Service (both voice and text telephone users can initiate this call from any telephone). Additionally, program information may be made available in languages other than English.
To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at
USDA is an equal opportunity provider, employer, and lender.
Forest Service, Agriculture (USDA).
Notice of meeting.
The Black Hills National Forest Advisory Board will hold a public meeting according to the details shown below. The Board is authorized under the Forest and Rangeland Renewable Resources Planning Act of 1974, the National Forest Management Act of 1976, the Federal Lands Recreation Enhancement Act, and operates in compliance with the Federal Advisory Committee Act (FACA). The purpose of the Board is to provide advice and recommendations on a broad range of forest issues such as forest plan revisions or amendments, forest health including fire, insect and disease, travel management, forest monitoring and evaluation, recreation fees, and site-specific projects having forest-wide implications.
An in-person meeting will be held on March 20, 2024, 1 p.m.-4:30 p.m. mountain standard time (MST).
All board meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
This meeting will be held in person, at the U.S. Forest Service, Mystic Ranger District Office, 8221 Mount Rushmore Road, Rapid City, South Dakota 57702. Board information and meeting details can be found at the following website:
Shawn Cochran, Designated Federal Officer (DFO), by phone at 605-673-9201, or email at
The meeting agenda will include:
1. Length of Stay on Forest discussion;
2. Mitchell Dam Project; and
3. Forest Plan Revision update.
The agenda will include time for individuals to make oral statements of three minutes or less. Individuals wishing to make an oral statement should make a request in writing at least three days prior to the meeting date to be scheduled on the agenda. Written comments may be submitted to the Forest Service up to 7 days after the meeting date listed under
Please contact the person listed under
USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Equal opportunity practices in accordance with USDA's policies will be followed in all appointments to the Board. To ensure that the recommendations of the Board have taken into account the needs of the diverse groups served by USDA, membership shall include to the extent possible, individuals with demonstrated ability to represent minorities, women, and persons with disabilities. USDA is an equal opportunity provider, employer, and lender.
Forest Service, Agriculture (USDA).
Notice of meeting.
The Land Between the Lakes Advisory Board will hold a public meeting according to the details shown below. The Board is authorized under the Charter for the Land Between the Lakes Advisory Board and operates in compliance with the Federal Advisory Committee Act (FACA). The purpose of the Board is to advise the Secretary of Agriculture on means of promoting public participation for the land and resource management plan for the Recreation Area; of providing environmental education; of developing an annual work plan for recreation and environment education areas in the Recreation Area, including the heritage program, with the nonappropriated amounts in the Land Between the Lakes Management Fund; of providing an annual forest management and harvest plan for the Recreation Area; and to establish the Land Between the Lakes Management Fund.
An in-person and virtual meeting will be held on March 27, 2024, 9 a.m.-4 p.m., central daylight time (CDT).
All board meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
This meeting will be held in-person at the Land Between the Lakes National Recreation Area Administration Building located at 100 Van Morgan Drive, Golden Pond, Kentucky 42211. The public may also join virtually via Microsoft Teams at:
Jim McCoy, Designated Federal Officer (DFO), by phone at 270-924-2001 or email at
The purpose of the meeting is to:
1. Discuss natural resource management;
2. Discuss recreation; and
3. Discuss environmental education.
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 7 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
National Agricultural Statistics Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 this notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Hemp Production and Disposition Inquiry. Revision to burden hours will be needed due to changes in the size of the target population, sampling design, number of mailings, and/or questionnaire length.
Comments on this notice must be received by April 23, 2024 to be assured of consideration.
You may submit comments, identified by docket number 0535-0270, by any of the following methods:
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Joseph L. Parsons, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720-4333. Copies of this information collection and related instructions can be obtained without charge from Richard Hopper, NASS—OMB Clearance Officer, at (202) 720-2206 or at
As defined in the 2018 Farm Bill, the term “hemp” means the plant species Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Delta-9 tetrahydrocannabinol, or THC, is the primary intoxicating component of cannabis. Cannabis with a THC level exceeding 0.3 percent is considered marijuana, which remains classified as a schedule I controlled substance regulated by the Drug Enforcement Administration (DEA) under the Controlled Substances Act (CSA).
Under the Agricultural Act of 2014 (2014 Farm Bill), Public Law 113-79, State departments of agriculture and institutions of higher education were permitted to produce hemp as part of a pilot program for research purposes. The authority for hemp production provided in the 2014 Farm Bill was extended by the 2018 Farm Bill, which was signed into law on December 20, 2018.
Hemp is a commodity that can be used for numerous industrial and horticultural purposes including fabric, paper, construction materials, food products, cosmetics, production of cannabinoids (such as cannabidiol or CBD), and other products.
In determining the type of data that would need to be collected and the frequency of the data collections, NASS management attended a joint meeting with representatives from the USDA's Economic Research Service (ERS), Farm Service Agency (FSA), Risk Management Agency (RMA), Agricultural Marketing Service (AMS), and the Office of the Secretary.
All NASS employees and NASS contractors must also fully comply with all provisions of the Confidential Information Protection and Statistical Efficiency Act (CIPSEA) of 2018, Title III of Public Law 115-435, codified in 44 U.S.C. Ch. 35. CIPSEA supports NASS's pledge of confidentiality to all respondents and facilitates the agency's efforts to reduce burden by supporting statistical activities of collaborative agencies through designation of NASS agents, subject to the limitations and penalties described in CIPSEA. NASS uses the information only for statistical purposes and publishes only tabulated total data.
All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.
On October 20, 2023, Trucast LLC submitted a notification of proposed production activity to the FTZ Board for its facility within Subzone 127G, in Newberry, South Carolina.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the U.S. Department of Commerce (Commerce) and the U.S. International Trade Commission (ITC) that revocation of the antidumping duty (AD) orders on certain cold-drawn mechanical tubing of carbon and alloy steel (cold-drawn mechanical tubing) from the Federal Republic of Germany (Germany), India, Italy, the People's Republic of China (China), the Republic of Korea (Korea), and Switzerland, and the countervailing duty (CVD) orders on cold-drawn mechanical tubing from India and China would likely lead to a continuation or recurrence of dumping, countervailable subsidies, and material injury to an industry in the United States, Commerce is publishing a notice of continuation of these AD and CVD orders.
Applicable February 14, 2024.
Emily Halle or Brendan Quinn, AD/CVD Operations, Office V and Office III, respectively, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0176 or (202) 482-2923, respectively.
On February 1, 2018, Commerce published in the
On February 14, 2024, the ITC published its determination, pursuant to sections 751(c) and 752(a) of the Act, that revocation of the
The scope of the
Subject cold-drawn mechanical tubing is typically certified to meet industry specifications for cold-drawn tubing including but not limited to:
(1) American Society for Testing and Materials (ASTM) or American Society of Mechanical Engineers (ASME) specifications ASTM A-512, ASTM A-513 Type 3 (ASME SA513 Type 3), ASTM A-513 Type 4 (ASME SA513 Type 4), ASTM A-513 Type 5 (ASME SA513 Type 5), ASTM A-513 Type 6 (ASME SA513 Type 6), ASTM A-519 (cold-finished);
(2) SAE International (Society of Automotive Engineers) specifications SAE J524, SAE J525, SAE J2833, SAE J2614, SAE J2467, SAE J2435, SAE J2613;
(3) Aerospace Material Specification (AMS) AMS T-6736 (AMS 6736), AMS 6371, AMS 5050, AMS 5075, AMS 5062, AMS 6360, AMS 6361, AMS 6362, AMS 6371, AMS 6372, AMS 6374, AMS 6381, AMS 6415;
(4) United States Military Standards (MIL) MIL-T-5066 and MIL-T-6736;
(5) foreign standards equivalent to one of the previously listed ASTM, ASME, SAE, AMS or MIL specifications including but not limited to:
(a) German Institute for Standardization (DIN) specifications DIN 2391-2, DIN 2393-2, DIN 2394-2);
(b) European Standards (EN) EN 10305-1, EN 10305-2, EN 10305-4, EN 10305-6 and European national variations on those standards (
(c) Japanese Industrial Standard (JIS) JIS G 3441 and JIS G 3445; and
(6) proprietary standards that are based on one of the above-listed standards.
The subject cold-drawn mechanical tubing may also be dual or multiple certified to more than one standard. Pipe that is multiple certified as cold-drawn mechanical tubing and to other specifications not covered by this scope, is also covered by the scope of these
Steel products included in the scope of these
For purposes of these scopes, the place of cold-drawing determines the country of origin of the subject merchandise. Subject merchandise that is subject to minor working in a third country that occurs after drawing in one of the subject countries including, but not limited to, heat treatment, cutting to length, straightening, nondestructive testing, deburring or chamfering, remains within the scope of the
All products that meet the written physical description are within the scope of the
(1) Cold-drawn stainless steel tubing, containing 10.5 percent or more of chromium by weight and not more than 1.2 percent of carbon by weight;
(2) products certified to one or more of the ASTM, ASME or American Petroleum Institute (API) specifications listed below:
The products subject to these
As a result of the determinations by Commerce and the ITC that revocation of the
The effective date of the continuation of the
This notice also serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return, destruction, or conversion to judicial protective order 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 is a violation of the APO which may be subject to sanctions.
These five-year sunset reviews and this notice are in accordance with sections 751(c) and 751(d)(2) of the Act and published in accordance with section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) finds that certain producers/exporters of cold-rolled steel flat products (cold-rolled steel) from the Republic of Korea (Korea) subject to this administrative review made sales of subject merchandise at less than normal value during the period of review (POR), September 1, 2021, through August 31, 2022.
Applicable February 23, 2024.
Caroline Carroll, AD/CVD Operations, Office IX, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4948.
On October 5, 2023, Commerce published the
The product covered by the
All issues raised in the case and rebuttal briefs are addressed in the Issues and Decision Memorandum.
Based on a review of the record and comments received from interested parties regarding our
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 calculating the weighted-average dumping margin for respondents that were not individually examined in an administrative review. Section 735(c)(5)(A) of the Act provides that the all-others rate should be calculated by weight averaging the weighted-average dumping margins determined for individually examined respondents, excluding rates that are zero,
The final weighted-average dumping margins calculated for Hyundai and POSCO are not zero,
As a result of this review, we determine the following estimated weighted-average dumping margins for the period September 1, 2021, through August 31, 2022:
Commerce intends to disclose to interested parties the calculations performed for Hyundai and POSCO in connection with these final results of review within five days of the date of publication of this notice, in accordance with 19 CFR 351.224(b).
Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b), Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise covered by the final results of this review. Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication date of the final results of this review in the
Because Hyundai and POSCO reported the entered value of their U.S. sales, we calculated importer-specific
Commerce's “automatic assessment” practice will apply to entries of subject merchandise during the POR produced by Hyundai or POSCO for which the reviewed companies did not know that the merchandise they sold to the intermediary (
For Dongbu, the company that was not selected for individual examination, we assigned an assessment rate based on the weighted average of the cash deposit rates calculated for Hyundai and POSCO, excluding any which are zero,
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on, or after, the date of publication of this notice in the
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 review period. 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 final reminder to parties subject to 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 the terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) finds that Sahamitr Pressure Container Plc. (also known as Sahamitr Pressure Container Public Company Limited) (SMPC) made sales of subject merchandise in the United States at prices below normal value during the period of review (POR) August 1, 2021, through July 31, 2022.
Applicable February 23, 2024.
Samuel Brummitt, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-7851.
On September 6, 2023, Commerce published the preliminary results of the 2021-2022 administrative review of the antidumping duty order on steel propane cylinders from Thailand and invited interested parties to comment.
Commerce conducted this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act).
The merchandise covered by this
All issues raised in the case and rebuttal briefs are addressed in the Issues and Decision Memorandum. A list of the issues that parties raised, and to which we responded in the Issues and Decision Memorandum, is attached as an 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 a review of the record and comments received from interested parties, we made certain adjustments to the margin calculations for these final results, as detailed in the Issues and Decision Memorandum.
As a result of this administrative review, Commerce determines that the following weighted-average dumping margin exists for the period August 1, 2021, through July 31, 2022:
Commerce intends to disclose the calculations performed to interested parties for these final results within five days of the date of publication of this notice in the
Pursuant to section 751(a)(2)(C) of the Act, 19 CFR 351.213, and 19 CFR 351.212(b), 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 these final results of review. Pursuant to 19 CFR 351.212(b)(1), where the respondent reported the entered value of its U.S. sales, we calculated importer-specific
Commerce's “reseller policy” will apply to entries of subject merchandise during the POR produced by SMPC for which the reviewed company did not know that the merchandise it sold to the intermediary (
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
The following cash deposit requirements for estimated antidumping duties will be effective for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for SMPC will be equal to the weighted-average dumping margin that is established in the final results of this review (except if that rate is
This notice also 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 the 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
We are issuing and publishing this notice 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.
The U.S. Department of Commerce (Commerce) is rescinding the administrative review of the antidumping duty (AD) order on utility scale wind towers (wind towers) from Spain for the period of review (POR) August 1, 2022, through July 31, 2023.
Applicable February 23, 2024.
Christopher Maciuba, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0413.
On August 26, 2020, Commerce published in the
On October 18, 2023, Commerce published in the
On October 31, 2023, the petitioner filed comments with respect to the CBP data.
On December 7, 2023, Commerce notified all interested parties of its intent to rescind the instant review because there were no reviewable, suspended entries of subject merchandise by any of the companies subject to this review during the POR and invited interested parties to comment.
Pursuant to 19 CFR 351.213(d)(3), it is Commerce's practice to rescind an administrative review of an AD order when there are no reviewable entries of subject merchandise during the POR for which liquidation is suspended.
Commerce will instruct CBP to assess antidumping duties on all appropriate entries. Antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of this rescission notice in the
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO, in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
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
Management of and regulations for Pacific halibut (
NMFS manages the charter halibut fishery off Alaska under the Charter Halibut Limited Access Program (CHLAP; 75 FR 554, January 5, 2010) and the Pacific Halibut Catch Sharing Plan (CSP; 78 FR 75844, December 12, 2013). This information collection is necessary for NMFS to manage and administer the charter halibut fishery under the CHLAP and the CSP. Regulations that implement this information collection are at 50 CFR 300 subpart E and 50 CFR 679.5(l)(7). Information on the CHLAP and the CSP is on the NMFS Alaska Region website at
The CHLAP established new Federal Charter Halibut Permits (CHPs) for operators in the sport charter halibut fishery in IPHC regulatory Areas 2C (Southeast Alaska) and 3A (Central Gulf of Alaska). All charter halibut vessel operators in Areas 2C and 3A with clients on board must have a valid CHP on board during every charter vessel fishing trip. As the period to obtain a CHP, other than a military CHP or community CHP, ended in 2010, CHPs may now only be obtained through transfer. This information collection contains the applications used to annually register CHPs, to apply for new military CHPs, and to transfer CHPs. The application for a community CHP is approved under OMB Control Number 0648-0665. Information collected by these applications includes permit holder information or applicant information, and depending on the form, may include CHP identification, CHP ownership information and affiliation, a survey question on the use of the CHP, and transaction information for transfer of a CHP.
The CSP authorizes annual transfers of commercial halibut individual fishing quota (IFQ) as guided angler fish (GAF) to qualified CHP holders for harvest by charter vessel anglers in Area 2C or 3A. GAF enables CHP holders to lease a limited amount of IFQ from commercial quota shareholders to allow charter vessel anglers to harvest halibut in addition to, or instead of, the halibut harvested under the daily bag limit for charter anglers.
This information collection includes the application used to transfer Area 2C or 3A commercial halibut IFQ to a CHP holder for use as GAF or for the CHP holder to return unused GAF to the IFQ permit holder from which it was obtained. Information collected by this application includes permit holder information, IFQ permit information, CHP information, GAF permit information, and transaction information. NMFS, on approving the transfer of IFQ to GAF, issues a GAF permit, which authorizes the holder to allow charter vessel anglers to retain GAF halibut caught in the IPHC regulatory area specified on the permit.
This information collection also includes the GAF landing report and the GAF permit log. The GAF landing report is submitted by GAF permit holders and collects information on each GAF halibut retained by an angler on a charter vessel fishing trip in Area 2C or 3A. The GAF permit log is printed on the back of each GAF permit and is used by the permit holder to record the GAF landing report confirmation number and information on GAF halibut after a trip in which GAF halibut were retained.
If a GAF permit holder is unable to submit the GAF landings report electronically due to hardware, software, or internet failure for a period longer than the required reporting time, or a correction must be made to information already submitted, the
This information collection includes the logbook reporting requirements for the charter halibut fishery. The charter halibut sector in Areas 2C and 3A is managed to charter catch limits established under the CSP. Charter operators are required to record all halibut caught and kept by charter vessel anglers in the ADF&G Saltwater Charter Logbook. Logbook reporting is the basis for estimating annual charter harvests of halibut relative to the charter catch limits.
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
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
In accordance with the Marine Mammal Protection Act (MMPA) of 1972, and the False Killer Whale Take Reduction Plan, NMFS is publishing a new trigger value for the Southern Exclusion Zone (SEZ) closure. The new trigger is three observed mortality or serious injuries of false killer whales incidental to the deep-set longline fishery within the U.S. Exclusive Economic Zone.
Elena Duke, NMFS Pacific Islands Region, (808) 725-5134,
Pursuant to section 118(f) of the MMPA, on December 31, 2012, NMFS implemented the False Killer Whale Take Reduction Plan (Plan). The Plan establishes a framework to reduce the level of incidental mortality and serious injury (M/SI) of the Hawaii pelagic and Hawaii insular stocks of false killer whales in the Hawaii longline fisheries (77 FR 71260; November 29, 2012).
In accordance with the Plan, NMFS issued regulations to establish the SEZ (50 CFR 229.37(d)(2)). These regulations require NMFS to close the SEZ to deep-set longline fishing when a certain number (trigger) of false killer whale M/SI are observed in the deep-set longline fishery in the U.S. Exclusive Economic Zone (EEZ). As described in the Plan regulations, the SEZ is bounded on the east at 154°30′ W longitude, on the west at 165° W longitude, on the north by the boundaries of the Main Hawaiian Islands Longline Fishing Prohibited Area and Papahānaumokuākea Marine National Monument, and on the south by the EEZ boundary (see fig. 1). The SEZ trigger is defined in § 229.37(e)(2) as the larger of either of these 2 values: (i) 2 observed M/SI of false killer whales within the EEZ around Hawaii, or (ii) the smallest number of observed false killer whale M/SI that, when extrapolated based on the percentage observer coverage in the deep-set longline fishery for that year, exceeds the Hawaii pelagic false killer whale stock's potential biological removal (PBR). For the first year of the Plan's implementation, NMFS established the trigger value as 2 observed false killer whale M/SI by the deep-set longline fishery within the EEZ around Hawaii (77 FR 71259, November 29, 2012), based on the PBR level of 9.1 for the Hawaii pelagic stock of false killer whales, as calculated in the draft 2012 Stock Assessment Report (SAR) (Carretta
NMFS set the annual observer coverage rate in the Hawaii deep-set longline fishery for 2024 at 13.5 percent. Observer coverage was previously set at 20 percent, but has been reduced due to increased program costs and available funding for the observer program. The abundance estimate for the Hawaii pelagic stock of false killer whales is 2,086 (CV = 0.35) individuals in the Hawaii EEZ. The minimum population abundance (N
Information on the Plan is available on the internet at the following address:
This notice serves as a notification to fishermen, the fishing industry, and the general public that the SEZ closure trigger value is three observed false killer whale M/SI in the deep-set longline fishery in the EEZ around Hawaii.
National Ocean Service, National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of request for comments.
NOAA's Marine Debris Program, on behalf of the Interagency Marine Debris Coordinating Committee (IMDCC), is soliciting public comments regarding draft recommendations to address marine debris. The IMDCC is required to submit a biennial report to Congress that includes the status of implementation of any recommendations and strategies of the Committee. These recommendations will replace the recommendations first published by the IMDCC in 2008.
Comments must be received on or before March 25, 2024, 11:59 p.m. Eastern Time (ET).
Comments may be submitted via email to
Ya'el Seid-Green, Executive Secretariat, IMDCC, Marine Debris Program; Phone 240-622-5910; Email
The Marine Debris Act establishes the IMDCC. 33 U.S.C. 1954. The IMDCC is a multi-agency body responsible for coordinating a comprehensive program of marine debris research and activities among Federal agencies, in cooperation and coordination with non-governmental organizations, industry, academia, States, Tribes, and other nations, as appropriate. Representatives meet to share information, assess and promote best management practices, and coordinate the Federal Government's efforts to address marine debris. NOAA serves as the Chairperson of the IMDCC.
The IMDCC is required to submit a biennial report to Congress that includes the status of implementation of any recommendations and strategies of the Committee and an analysis of their effectiveness. 33 U.S.C. 1954(e). In its first report to Congress, in 2008, the IMDCC published recommendations for addressing marine debris. The 25 recommendations were organized into four themes and eight subthemes. The goal of the recommendations was to “guide the Federal government's strategies with respect to the problems of persistent marine debris (IMDCC 2008)”. They were “designed to be broad in scope, with the intention that federal agencies work collaboratively through the IMDCC to develop more detailed priorities and an action plan (
A report from the Government Accountability Office (GAO) in September 2019 (GAO-19-653) highlighted that the biennial reports did not include an analysis of the effectiveness of the IMDCC's recommendations and strategies. The GAO recommended that the IMDCC develop and implement a process to analyze the effectiveness of the recommendations and strategies, and include the results in its biennial reports.
However, it is difficult to analyze the effectiveness of the 2008 recommendations based on their scope and age. In addition, several new agencies have joined as members of the IMDCC, and the recommendations do not reflect the full scope of current IMDCC member agency activities. As a result, the IMDCC has developed an entirely new set of draft recommendations through a collaborative process. Once finalized, the new recommendations will be included in the Fiscal Year 2022-2023 IMDCC Biennial Report to Congress.
The new draft recommendations attempt to identify and express what the IMDCC sees as priorities for reducing the impacts of marine debris, aligning with the purposes and policies articulated in the Marine Debris Act and based on current authorities and activities of the IMDCC member agencies. The recommendations are designed to be broad in scope and are written to maintain relevance for several years. Not all IMDCC member agencies have activities that are relevant to each recommendation. The recommendations are divided into seven categories. The number of recommendations in each category varies.
NOAA's Marine Debris Program, on behalf of the IMDCC, invites comments, feedback, and recommendations on the draft recommendations. Following the comment period, the feedback provided will be reviewed and the recommendations will be updated as necessary. The final recommendations will be included in the Fiscal Year 2022-2023 IMDCC Biennial Report to Congress and in a stand-alone report. An appendix will be added to the stand-alone report describing how comments from the public comment period were incorporated into the recommendations. This report will be posted to
The recommendations do not imply approval for any specific action, although they may inform future federal budget development. All activities included in the recommendations are subject to budgetary constraints, interagency processes, stakeholder input and other approvals, including the weighing of priorities and available resources by the Administration in formulating its annual budget and by Congress in legislating appropriations. In some cases, implementing the recommendations may require a sustained, multi-year effort by federal, state, tribal and community partners. The recommendations are not intended to, and do not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice; reopening of application window for Advisory Committee nominations.
Through this Notice, the National Telecommunications and Information Administration (NTIA) is reopening an application window for nominations to the Commerce Spectrum Management Advisory Committee (CSMAC). On December 27, 2023, NTIA published a Notice seeking nominations to the CSMAC with a deadline of January 31, 2024, for submissions. In reopening this application window, NTIA seeks to expand the pool of applicants and best ensure that the composition of the committee reflects balanced points of view.
Applications must be postmarked or electronically transmitted to the address below on or before March 4, 2024.
Persons may submit applications to Antonio Richardson, Designated Federal Officer, by email (preferred) to
Antonio Richardson at (202) 482-4156 or
The CSMAC was established and chartered by the Department of Commerce under the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2, and pursuant to section 105(b) of the National Telecommunications and Information Administration Organization Act, as amended, 47 U.S.C. 904(b). The committee will continue as provided in Executive Order 14109, effective September 29, 2023. The Department of Commerce re-chartered the CSMAC on November 21, 2023, for a two-year period. More information about the CSMAC may be found at
Through this Notice, NTIA is reopening the application window for 10 days to expand the pool of applicants and best ensure that the composition of the committee reflects balanced points of view (
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed deletions from the Procurement List.
The Committee is proposing to delete product(s) and service(s) from the Procurement List that were furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Comments must be received on or before: March 24, 2024.
Committee for Purchase From People Who Are Blind or Severely Disabled, 355 E Street SW, Suite 325, Washington, DC 20024.
For further information or to submit comments contact: Michael R.
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
The following product(s) and service(s) are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and deletions from the Procurement List.
This action adds service(s) to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes product(s) from the Procurement List previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 355 E Street SW, Suite 325, Washington, DC 20024.
Michael R. Jurkowski, Telephone: (703) 785-6404 or email
On 12/22/2023, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed additions to the Procurement List. This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the product(s) and service(s) and impact of the additions on the current or most recent contractors, the Committee has determined that the service(s) listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the service(s) to the Government.
2. The action will result in authorizing small entities to furnish the service(s) to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the service(s) proposed for addition to the Procurement List.
Accordingly, the following service(s) are added to the Procurement List:
On 1/19/2024 (83 FR), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List. This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3.
After consideration of the relevant matter presented, the Committee has determined that the product(s) listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the product(s) to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the product(s) deleted from the Procurement List.
Accordingly, the following product(s) are deleted from the Procurement List:
Consumer Financial Protection Bureau.
Notice of public meeting.
Under the Federal Advisory Committee Act (FACA), this notice sets forth the announcement of a public meeting of the Credit Union Advisory Council (CUAC or Council) of the Consumer Financial Protection Bureau (CFPB or Bureau). The notice also describes the functions of the Council.
The meeting date is Friday, March 8, 2024, from approximately 1 p.m. to 3:15 p.m., eastern time. This meeting will be held virtually and is open to the general public. Members of the public will receive the agenda and dial-in information when they RSVP.
Kim George, Outreach and Engagement Associate, Advisory Board and Councils, External Affairs Division, at 202-450-8617, or email:
Section 2 of the CUAC charter provides that pursuant to the executive and administrative powers conferred on the CFPB by section 1012 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), the Director of the CFPB renews the discretionary Credit Union Advisory Council under agency authority in accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. 10.
Section 3 of the CUAC charter states that the purpose of the CUAC is to advise the CFPB in the exercise of its functions under the Federal consumer financial laws as they pertain to credit unions with total assets of $10 billion or less.
The CUAC will discuss broad policy matters related to the Bureau's Unified Regulatory Agenda and general scope of authority.
If you require any additional reasonable accommodation(s) in order to attend this event, please contact the Reasonable Accommodations team at
Written comments will be accepted from interested members of the public and should be sent to
The Council's agenda will be made available to the public on Thursday, March 7, 2024, via
A recording and summary of this combined meeting will be available after the meeting on the Bureau's website
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice and request for public comments.
On behalf of the U.S. Government, DoD is contemplating negotiating and concluding a new Reciprocal Defense Procurement Agreement with the Republic of Korea. DoD is requesting industry feedback regarding its experience in public defense procurements conducted by or on behalf of the Ministry of National Defense or Armed Forces.
Comments must be received March 25, 2024.
Submit comments by email to
Mr. Jeff Grover, telephone +1-703-380-9783.
DoD has concluded Reciprocal Defense Procurement (RDP) Agreements with 28 qualifying countries, as defined in the Defense Federal Acquisition Regulation Supplement (DFARS) 225.003, at the level of the Secretary of Defense and his counterpart. The purpose of an RDP Agreement is to promote rationalization, standardization, interchangeability, and interoperability of conventional defense equipment with allies and other friendly governments. These Agreements provide a framework for ongoing communication regarding market access and procurement matters that enhance effective defense cooperation.
RDP Agreements generally include language by which the Parties agree that their defense procurements will be conducted in accordance with certain implementing procedures. These procedures relate to—
• Publication of notices of proposed purchases;
• The content and availability of solicitations for proposed purchases;
• Notification to each unsuccessful offeror;
• Feedback, upon request, to unsuccessful offerors concerning the reasons they were not allowed to participate in a procurement or were not awarded a contract; and
• Provision for the hearing and review of complaints arising in connection with any phase of the procurement process to ensure that, to the extent possible, complaints are equitably and expeditiously resolved.
Based on the Agreement, each country affords the other country certain benefits on a reciprocal basis consistent with national laws and regulations. The benefits that the United States accords to the products of qualifying countries include—
• Offers of qualifying country end products are evaluated without applying the price differentials otherwise required by the Buy American statute and the Balance of Payments Program;
• The chemical warfare protection clothing restrictions in 10 U.S.C. 4862 and the specialty metals restriction in 10 U.S.C. 4863 do not apply to products manufactured in a qualifying country; and
• Customs, taxes, and duties are waived for qualifying country end products and components of defense procurements.
If DoD (for the U.S. Government) concludes a new RDP Agreement with the Republic of Korea and DoD executes a blanket public interest determination, as intended, the Republic of Korea will be listed as one of the qualifying countries at DFARS 225.872-1(a).
While DoD is evaluating Republic of Korea laws and regulations in this area, DoD would benefit from U.S. industry's experience in participating in Republic of Korea public defense procurements. DoD is, therefore, asking U.S. firms that have participated or attempted to participate in procurements by or on behalf of the Republic of Korea Ministry of National Defense and Armed Forces to let DoD know if the procurements were conducted with transparency, integrity, fairness, and due process in accordance with published procedures, and if not, the nature of the problems encountered.
DoD is also interested in comments relating to the degree of reciprocity that exists between the United States and the Republic of Korea when it comes to the openness of defense procurements to offers of products from the other country. Further, DoD would like to understand the degree to which U.S. industry feels that it would have equal and proportional access to the Republic of Korea defense market as the Republic of Korea would have under an RDP Agreement.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance the following proposed revision and extension of a collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by March 25, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
You may also submit comments, identified by docket number and title, by the following method: Federal eRulemaking Portal:
Tucker Lucas, 571-372-7574, or
The requirement at DFARS 239.7408, which requires the contracting officer to obtain a detailed special construction proposal from a common carrier that submits a proposal or quotation that has special construction requirements related to the performance of basic telecommunications services, is being removed from this collection. Approximately three offerors are required to submit a special construction proposal each year, which does not require OMB approval under the Paperwork Reduction Act because it does not meet the threshold of ten or more members of the public being affected within any 12-month period.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance the following proposed extension of a collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by March 25, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
You may also submit comments, identified by docket number and title, by the following method: Federal eRulemaking Portal:
Tucker Lucas, 571-372-7574, or
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposed extension of a collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by March 25, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
You may also submit comments, identified by docket number and title, by the following method: Federal eRulemaking Portal:
Tucker Lucas, 571-372-7574, or
DoD Clearance Officer: Mr. Tucker Lucas. Requests for copies of the information collection proposal should be sent to Mr. Lucas at
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of open Federal advisory committee meeting.
The Department of the Army is publishing this notice to announce the Federal advisory committee meeting of the U.S. Army Corps of Engineers, Inland Waterways Users Board (Board). This meeting is open to the public. For additional information about the Board, please visit the committee's website at
The Army Corps of Engineers, Inland Waterways Users Board will conduct a meeting from 9 a.m. to 2 p.m. EDT on April 11, 2024.
The Inland Waterways Users Board meeting will be conducted at the Hilton Springfield Hotel, 6550 Loisdale Road, Springfield, Virginia 22150, 703-971-8900. The online virtual portion of the Inland Waterways Users Board meeting can be accessed at
Mr. Paul D. Clouse, the Designated Federal Officer (DFO) for the committee, in writing at the Institute for Water Resources, U.S. Army Corps of Engineers, ATTN: CEIWR-NDC, 7701 Telegraph Road, Casey Building (Room H221), Alexandria, VA 22315-3868; by telephone at 202-768-3157; and by email at
This committee 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”), section 552b of title 5, U.S.C. (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).
Office of Postsecondary Education, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications (NIA) for fiscal year (FY) 2024 for the Fulbright-Hays Faculty Research Abroad (FRA) Fellowship Program, Assistance Listing Number 84.019A. This notice relates to the approved information collection under OMB control number 1840-0005.
The addresses pertinent to this competition—including the addresses for obtaining and submitting an application—can be found under
Dr. Pamela J. Maimer, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202. Telephone: (202) 453-6891. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
This priority is:
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.
A research project conducted 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.
Projects implemented by one or more of the following entities:
(1) Community colleges (as defined in this notice).
(2) Historically Black Colleges and Universities (as defined in this notice).
(3) Tribal College or University (as defined in this notice).
(4) Minority-serving institutions (as defined in this notice).
1. a.
b.
2. a.
b.
3.
1.
You can contact ED Pubs at its website,
If you request an application package from ED Pubs, be sure to identify this program as follows: Assistance Listing Number 84.019A.
2.
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″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, 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.
a. Have a UEI number and a TIN;
b. Register both your UEI number and TIN with SAM, the Government's primary registrant database;
c. Provide your UEI number 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 2 to 5 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 DUNS/UEI number 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 DUNS/UEI number 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
7.
a.
Submit applications for grants under the Fulbright-Hays FRA Fellowship Program, Assistance Listing Number 84.019A, electronically using the G6 system, accessible through the
Please note the following:
• The process for submitting applications electronically under the Fulbright-Hays FRA 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) Faculty applicants must complete their individual applications and submit them to their home IHE project director using G6;
(3) Persons providing references for individual faculty applicants must complete and submit reference forms to the IHE's project director, using G6; and
(4) The IHE's project director must officially submit the IHE's application, including all eligible individual faculty 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 faculty applicant begin the application process early and not wait until close to the application deadline date to prepare their applications. The table below shows the days and times that the G6 website will be available.
• Faculty applicants will not receive additional points because they submit their applications in electronic format, nor will we penalize an IHE or faculty 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 faculty applicants must upload the narrative sections and all other attachments to their application as files in a read-only flattened Portable Document Format (PDF), meaning any fillable documents must be saved and submitted as nonfillable PDF files. Do not upload any interactive or fillable PDF files. If you upload a file type other than a read-only, nonmodifiable PDF (
• Prior to submitting your electronic application, please redact any personally identifiable information (SSN, birthdate, etc.). You may wish to print a copy of your application package for your records.
• After the individual faculty applicant electronically submits their application to the IHE, the faculty applicant 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 faculty applicant, they will receive an electronic confirmation from the G6 system. After the applicant IHE submits its application, including all eligible individual faculty applications to the Department, the applicant IHE will also receive an automated 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 this 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 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 a time extension due to G6 unavailability or to confirm our acknowledgment of G6's unavailability, an IHE may contact either (1) the person listed under
b.
The prior written notification may be submitted by email or by mail to the person listed under
If you submit a paper application, you must have, and include on your application, a DUNS/UEI number and 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: 84.019A, 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 you mail your 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.
(1) You must indicate on the envelope and in Item 11 of the SF 424 the ALN, including suffix letter, if any, of the competition under which you are submitting your 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 importance in terms of the concerns of the discipline (10 points);
(3) The preliminary research already completed or plans for 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 with scholars and officials of the host country or countries and the American scholarly community (5 points); and
(6) The objectives of the project regarding the sponsoring institution's plans for developing or strengthening, or both, curricula in modern foreign languages and area studies (15 points).
(b)
(1) The overall strength of applicant's academic record (teaching, research, contributions, professional association activities) (10 points);
(2) The applicant's excellence as a teacher or researcher, or both, in his or her area or areas of specialization (5 points);
(3) The applicant's proficiency in one or more of the languages (other than English) of the host country or countries of research (5 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 previous overseas experience, or documentation provided by the sponsoring institution, or both (5 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, faculty applications are divided into seven categories based on the world area focus of their research projects, as described in the absolute priority listed in this notice. Foreign language and area studies experts on discrete world area-based panels will evaluate the faculty applications. Each panel reviews, scores, and ranks its assigned applications separately from the applications assigned to the other world area panels. At the conclusion of the panel review process, however, all faculty applications will be ranked together from the highest to lowest score for funding recommendation purposes.
If there are applications on the rank order slate with the same average score, the Fulbright Foreign Scholarship Board's 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 the veteran's preference, the Department 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 a faculty application is not evaluated or not selected for funding, we notify the IHE.
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. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
You may also access documents of the Department published in the
Office of Environmental Management, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Paducah. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Thursday, March 21, 2024; 5:30 p.m.-7 p.m. CDT.
West Kentucky Community and Technical College, Emerging Technology Center, Room 215, 5100 Alben Barkley Drive, Paducah, Kentucky 42001.
Robert “Buz” Smith, Federal Coordinator, by Phone: (270) 441-6821 or Email:
• Review of Agenda
• Administrative Activities
• Public Comment Period
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.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
This is a supplemental notice in the above-referenced proceeding of Honeysuckle 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 March 11, 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
On February 16, 2024, the Commission issued an order in Docket No. EL24-67-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e, instituting an investigation to determine whether Viridon New York Inc.'s Formula Rate is unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful.
The refund effective date in Docket No. EL24-67-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL24-67-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2023), within 21 days of the date of issuance of the order.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFile” link at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
On February 16, 2024, the Commission issued an order in Docket No. EL24-68-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e, instituting an investigation to determine whether Richland-Stryker Generation LLC's Rate Schedule is unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful.
The refund effective date in Docket No. EL24-68-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL24-68-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2023), within 21 days of the date of issuance of the order.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFile” link at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
On February 16, 2024, the Commission issued an order in Docket No. EL24-66-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e, instituting an investigation to determine whether Viridon Southwest LLC's Formula Rate is unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful.
The refund effective date in Docket No. EL24-66-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL24-66-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2023), within 21 days of the date of issuance of the order.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFile” link at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as
Take notice that on February 13, 2024, Mark McClain submitted for filing, application for authority to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act, 16 U.S.C. 825d (b) and Part 45.8 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR part 45.8.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Take notice that the Commission received the following 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 (
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 received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
On December 22, 2023, Lock 47 Hydro, LLC, filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of hydropower on the Lehigh River in Northampton County, Pennsylvania. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed Chain Dam Hydroelectric Project would consist of the following: (1) an existing 700-foot-long, 20-foot-high concrete gravity dam (
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system 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
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's website at
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's order for the cancellations and amendments to terminate uses, voluntarily requested by the registrants, and accepted by the Agency, pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This cancellation order follows a July 28, 2023,
This order is effective February 23, 2024.
Christopher Green, Registration Division (7505T), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 566-2707; email address:
This action is directed to the public in general and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2023-0074, is available at
This notice announces the cancellations and amendments to terminate uses, as requested by registrants, of products registered under FIFRA section 3 (7 U.S.C. 136a). These registrations are listed in sequence by registration number in Tables 1, 1A, 1B and 2 of this unit.
The registrants of the products listed in Table 1A of Unit II, requested 18 months after cancellation to sell existing stocks.
The registrants of the products listed in Table 1B of Unit II, requested an effective date of cancellation of February 29, 2024, for the products listed in Table 1B of Unit II.
Table 3 of this unit includes the names and addresses of record for all registrants of the products in Tables 1, 1A, 1B and 2 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed above.
During the public comment period provided, EPA received no comments in response to the July 28, 2023,
Pursuant to FIFRA section 6(f) (7 U.S.C. 136d(f)(1)), EPA hereby approves the requested cancellations and amendments to terminate uses of certain pesticide registrations identified in Tables 1, 1A, 1B and 2 of Unit II. Accordingly, the Agency hereby orders that the product registrations identified in Tables 1, 1A and 2 of Unit II, are canceled and/or amended to terminate the affected uses as of the date of this order. The product registrations identified in Table 1B are cancelled as of February 29, 2024. Any distribution, sale, or use of existing stocks of the products identified in this order in a manner inconsistent with any of the provisions for disposition of existing stocks set forth in Unit VI, will be a violation of FIFRA.
Section 6(f)(1) of FIFRA (7 U.S.C. 136d(f)(1)) provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Existing stocks are those stocks of registered pesticide products which are currently in the United States, and which were packaged, labeled, and released for shipment prior to the effective date of the action. The existing stocks provisions for the products subject to this order are as follows:
For 264-334; 264-335; 264-429; 432-982; 432-1209; 432-1210; 432-1211; 432-1212; 432-1227; 432-1511; and 432-1525, listed in Table 1A of Unit II, the registrants requested a period of 18 months after the effective date of the cancellation to sell and distribute existing stocks of products, which will be the date of publication of the cancellation order in the
For 61483-2; 61483-3; 61483-94; and 97080-10, listed in Table 1B of Unit II, the registrants requested an effective date of cancellation of February 29, 2024. The Notice of Receipt of Requests for Voluntary Cancellations from July 28, 2023, incorrectly stated that pentachlorophenol registrants would be able to sell and distribute existing stocks for 1 year after the effective date of the cancellation and that non-registrant distributors and end-users would be permitted to continue to sell, distribute and use pentachlorophenol products until supplies are exhausted. However, due to the unreasonable adverse effects identified during the registration review of pentachlorophenol, EPA determined that registrants and non-registrants must cease sale and distribution of pentachlorophenol products simultaneously with the cancellation of those products. Therefore, as of February 29, 2024, all sale and distribution of the products identified in Table 1B of Unit II, is prohibited, except for export consistent with FIFRA section 17 (7 U.S.C. 136o) or for proper disposal.
EPA is permitting end-users to continue to use existing stocks of pentachlorophenol products, as long as that use is consistent with labeling on the existing stocks, until February 28, 2027, after which all use is prohibited, even if not all existing stocks are exhausted by this time. Therefore, after February 28, 2027, all use of the products identified in Table 1B of Unit II, is prohibited.
This timeline is consistent with the final registration review decision for pentachlorophenol, which prohibits the sale or distribution of these products upon cancellation (February 29, 2024) and allows for an additional three years for use of existing stocks of pentachlorophenol product (until February 28, 2027). Documents pertaining to the registration review of pentachlorophenol can be found in
Section 6(a)(1) of FIFRA gives EPA the discretion to permit the continued sale and use of existing stocks of a pesticide whose registration is cancelled where doing so is determined to be consistent with the purposes of FIFRA 7 U.S.C. 136d(a)(1). In the case of the pentachlorophenol registrations subject to this order, allowing for continued use or sale after the dates discussed in the previous paragraph would not be consistent with FIFRA; therefore, EPA is not allowing for continued sale, distribution, or use of pentachlorophenol products after the dates listed above.
For the products listed in Table 1 of Unit II, the registrants may continue to sell and distribute existing stocks of products listed in Table 1 until February 24, 2025, which is 1 year after publication of this cancellation order in the
Now that EPA has approved product labels reflecting the requested amendments to terminate uses, registrants are permitted to sell or distribute products listed in Table 2 of Unit II, under the previously approved labeling until August 25, 2025, a period of 18-months after publication of the cancellation order in this
Persons other than the registrant may sell, distribute, or use existing stocks of the products listed in Tables 1 and 2 until supplies are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the respective products.
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
The Natural Resource Conservation Service (NRCS) has adopted the National Oceanic and Atmospheric Administration's Final EIS No. 20150171 filed 06/11/2015 with the Environmental Protection Agency. The NRCS was not a cooperating agency on this project. Therefore, republication of the document is necessary under Section 1506.3(b)(1) of the CEQ regulations.
Environmental Protection Agency (EPA).
Notice of document availability and request for comments.
The Environmental Protection Agency (EPA) is announcing a 30-day public comment period for the draft document titled, “Technical Documentation for the Framework for Evaluating Damages and Impacts (FrEDI)” (EPA 430-R-24-001). This document provides technical documentation of a Framework used to analyze future climate change-related impacts to the United States, projected to occur across multiple impact sector categories, geographic regions, and populations, under any custom temperature scenario. This approach serves as an alternative or complement to traditional scenario-based approaches in order to improve communication of results, comparability between studies, and flexibility to facilitate scenario analysis. The draft technical documentation will also be subject to external peer review. Prior to finalizing the draft document, EPA intends to carefully consider all comments received from the public and from external peer reviewers. This draft document is not final as described in EPA's information quality guidelines and does not represent and should not be construed to represent Agency policy or views. The draft document is available via the internet on EPA's web page at
To ensure your comments are considered for the final version of the document, please submit your comments by March 25, 2024.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2023-0614, to the Federal Portal:
Mr. Jeremy Martinich, Environmental Protection Agency, Office of Air and Radiation, Office of Atmospheric Protection, Climate Change Division, (202) 343-9871,
Characterizing the future risks of climate change is a key goal of climate impacts analysis. The Framework for Evaluating Damages and Impacts (FrEDI) is a reduced form approach, implemented as an R package, that synthesizes data from existing peer-reviewed literature to project the distributional impacts of climate change to the U.S. through the end of the century. This framework relies on sectoral damages derived from existing peer-reviewed studies, which are further organized into an `impact by degree' analytical framework for use within FrEDI. Results from the FrEDI R package can then be used to inform analyses of climate change impacts to the U.S. to better understand and communicate the distributional impacts of climate change over time, and across various sectors, regions, and populations. The speed and flexibility of this framework also enables assessment of how projected climate change impacts may change in the future due to various adaptation or emission mitigation scenarios. FrEDI therefore fills an important gap in U.S. climate change impact assessments by synthesizing climate impact information from a broad range of peer-reviewed studies, while also having the flexibility to assess future U.S. impacts under any custom scenario.
Federal Accounting Standards Advisory Board.
Notice.
Notice is hereby given that the Federal Accounting Standards Advisory Board (FASAB) has released for public comment an exposure draft of a proposed Technical Release titled
Written comments are requested by April 15, 2024.
The exposure draft is available on the FASAB website at
Ms. Monica R. Valentine, Executive Director, 441 G Street NW, Suite 1155, Washington, DC 20548, or call (202) 512-7350.
Federal Election Commission.
Notice of filing dates for special election.
New York has scheduled a special election on April 30, 2024, to fill the U.S. House of Representatives seat in the 26th Congressional District vacated by Rep. Brian Higgins. Committees required to file reports in connection with the Special General Election on April 30, 2024, shall file a 12-day Pre-General and a 30-Day Post-General Report.
1050 First Street NE, Washington, DC 20463.
Ms. Elizabeth S. Kurland, Information Division, (202) 694-1100 or (800) 424-9530,
All principal campaign committees of candidates who participate in the New York Special General Election shall file a 12-day Pre-General Report on April 18, 2024, and a 30-day Post-General Report on May 30, 2024. (See chart below for the closing date for each report.)
Note that these reports are in addition to the campaign committee's regular quarterly filings. (See chart below for the closing date for each report).
Political committees not filing monthly are subject to special election reporting if they make previously undisclosed contributions or expenditures in connection with the New York Special General Election by the close of books for the applicable report(s). (See chart below for the closing date for each report.)
Committees filing monthly that make contributions or expenditures in connection with the New York Special General Election will continue to file according to the monthly reporting schedule.
Additional disclosure information for the New York special election may be found on the FEC website at
Principal campaign committees, party committees and leadership PACs that are otherwise required to file reports in connection with the special election must simultaneously file FEC Form 3L if they receive two or more bundled contributions from lobbyists/registrants or lobbyist/registrant PACs that aggregate in excess of $22,700 during the special election reporting periods. (See chart below for closing date of each period.) 11 CFR 104.22(a)(5)(v), (b), 110.17(e)(2), (f).
On behalf of the Commission.
Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
Notice of adoption of Revised Grants Handbook.
The Appraisal Subcommittee (ASC) of the Federal Financial Institutions Examination Council (FFIEC) is providing notice of its adoption of the Revised Grants Handbook (Handbook). The Handbook is the official repository of the policies and procedures for the administration of grants made by the ASC as authorized by Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended (Title XI). The ASC adopted the Handbook in the open session ASC Special Meeting held January 17, 2024. This Handbook supersedes the Handbook that the ASC adopted on December 12, 2019.
Rae Frederique, Grants Director, at
The ASC is authorized to grant funds to the Appraisal Foundation under Title XI, section 1109(b)(4). The ASC may “make grants in such amounts as it deems appropriate to the Appraisal Foundation, to help defray those costs of the foundation relating to the activities of its Appraisal Standards and Appraiser Qualification Boards.”
The Handbook as adopted by the ASC is available to the public and can be found at:
By the Appraisal Subcommittee.
The Commission hereby gives notice of filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments, relevant information, or documents regarding the agreements to the Secretary by email at
Federal Trade Commission.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Federal Trade Commission (FTC or Commission) is seeking public comment on its proposal to extend for an additional three years the Office of Management and Budget clearance for its Energy Labeling Rule (the Rule). The current clearance expires on February 29, 2024.
Comments must be filed by March 25, 2024.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Hampton Newsome, Attorney, Division of Enforcement, Federal Trade Commission, Room CC-9528, 600 Pennsylvania Avenue NW, Washington, DC 20580, (202) 326-2889.
On December 5, 2023, the FTC sought public comment on the information collection requirements associated with the Rule. 88 FR 84330. One comment only stated, “Good,” but added nothing further. No other germane comments were received. Pursuant to the OMB regulations, 5 CFR part 1320, that implement the PRA, 44 U.S.C. 3501
Your comment—including your name and your state—will be placed on the public record of this proceeding. Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, such as anyone's Social Security number; date of birth; driver's license number or other state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “trade secret or any commercial or financial information which . . . is privileged or confidential”—as provided by Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)—including in particular competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, please access the CMS PRA website by copying and pasting the following web address into your web browser:
William Parham at (410) 786-4669.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
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 April 23, 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
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is issuing an order under the Federal Food, Drug, and Cosmetic Act (FD&C Act) debarring Taylor McLaren for a period of 5 years from importing or offering for import any drug into the United States. FDA bases this order on a finding that Mr. McLaren was convicted of one felony count under Federal law for conspiracy to smuggle goods into the United States. The factual basis supporting Mr. McLaren's conviction, as described below, is conduct relating to the importation into the United States of a drug or controlled substance. Mr. McLaren was given notice of the proposed debarment and was given an opportunity to request a hearing to show why he should not be debarred. As of January 8, 2024 (30 days after receipt of the notice), Mr. McLaren had not responded. Mr. McLaren's failure to respond and request a hearing constitutes a waiver of his right to a hearing concerning this matter.
This order is applicable February 23, 2024.
Any application by Mr. McLaren for termination of debarment under section 306(d)(1) of the FD&C Act (21 U.S.C. 335a(d)(1)) may be submitted as follows:
•
• If you want to submit an application with confidential information that you do not wish to be made available to the public, submit the application as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
•
• For a written/paper application submitted to the Dockets Management Staff, FDA will post your application, as well as any attachments, except for information submitted, marked, and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit an application with confidential information that you do not wish to be made publicly available, submit your application only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of your application. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Jaime Espinosa, Division of Compliance and Enforcement, Office of Policy, Compliance, and Enforcement, Office of Regulatory Affairs, Food and Drug Administration, at 240-402-8743 or
Section 306(b)(1)(D) of the FD&C Act permits debarment of an individual from importing or offering for import any drug into the United States if FDA finds, as required by section 306(b)(3)(C) of the FD&C Act, that the individual has been convicted of a felony for conduct relating to the importation into the United States of any drug or controlled substance.
On March 2, 2023, Mr. McLaren was convicted as defined in section 306(l)(1) of the FD&C Act, in the U.S. District Court for Western District of Michigan when the court accepted his plea of guilty and entered judgment against him for the offense of conspiracy to smuggle goods into the United States in violation of 18 U.S.C. 371 and 545.
The underlying facts supporting the conviction are as follows: As contained in the indictment and plea agreement from his case, filed on March 1, 2022, and August 22, 2022, respectively, Brendon Gagne owned and operated
As a result of this conviction, FDA sent Mr. McLaren, by certified mail, on November 30, 2023, a notice proposing to debar him for a 5-year period from importing or offering for import any drug into the United States. The proposal was based on a finding under section 306(b)(3)(C) of the FD&C Act that Mr. McLaren's felony conviction under Federal law for conspiracy to smuggle goods into the United States in violation of 18 U.S.C. 371 and 545, was for conduct relating to the importation into the United States of any drug or controlled substance because he was involved in a scheme to illegally import and introduce prescription drugs into the United States. In proposing a debarment period, FDA weighed the considerations set forth in section 306(c)(3) of the FD&C Act that it considered applicable to Mr. McLaren's offense and concluded that the offense warranted the imposition of a 5-year period of debarment.
The proposal informed Mr. McLaren of the proposed debarment and offered him an opportunity to request a hearing, providing him 30 days from the date of receipt of the letter in which to file the request, and advised him that failure to request a hearing constituted a waiver of the opportunity for a hearing and of any contentions concerning this action. Mr. McLaren received the proposal and notice of opportunity for a hearing on December 9, 2023. Mr. McLaren failed to request a hearing within the timeframe prescribed by regulation and has, therefore, waived his opportunity for a hearing and waived any contentions concerning his debarment (21 CFR part 12).
Therefore, the Assistant Commissioner, Office of Human and Animal Food Operations, under section 306(b)(3)(C) of the FD&C Act, under authority delegated to the Assistant Commissioner, finds that Mr. Taylor McLaren has been convicted of a felony under Federal law for conduct relating to the importation into the United States of any drug or controlled substance. FDA finds that the offense should be accorded a debarment period of 5 years as provided by section 306(c)(2)(A)(iii) of the FD&C Act.
As a result of the foregoing finding, Mr. McLaren is debarred for a period of 5 years from importing or offering for import any drug into the United States, effective (see
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
In compliance with the Paperwork Reduction Act of 1995, HRSA submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. The initial notice was published on November 17, 2023, with a 60-day comment period. No comments were received. OMB will accept comments from the public during the 30-day comment period for this notice. OMB may act on HRSA's ICR only after the 30-day comment period for this notice has closed.
Comments on this ICR should be received no later than March 25, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request a copy of the clearance requests submitted to OMB for review, email Joella Roland, the HRSA Information Collection Clearance Officer, at
In 2018, a pilot living donor registry was implemented by the SRTR, and each participating transplant program registered all potential candidates for living donation who provided informed consent to enroll. In 2019, an updated version of the data collection instrument was approved, followed by the latest data collection forms which were approved on February 26, 2021. These data collection modifications were intended to improve the quality of the data and reduce the administrative burden for respondents. This
A 60-day notice published in the
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Center for Scientific Review Advisory Council.
This will be held in-person and will be open to the public as indicated below. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should register at:
The meeting can be viewed remotely via the NIH Videocasting website:
Information is also available on the Institute's/Center's home page:
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health (NIH), Department of Health and Human Services.
Rescindment of a system of records notice.
In accordance with the requirements of the Privacy Act of 1974, as amended, the Department of Health and Human Services (HHS), through the National Institutes of Health (NIH), is rescinding a system of records titled “Administration: Senior Staff, HHS/NIH/NIAID,” system number 09-25-0087. The records are no longer needed for agency business, so are no longer retrieved by names or other personal identifiers. Because of this, the records no longer qualify as a Privacy Act system of records, and it is appropriate to rescind the system of records.
In accordance with 5 U.S.C. 552a(e)(4), this notice is applicable upon publication.
The public may submit written comments on this notice, by mail or email, to Dustin Close, Office of Management Assessment, National Institutes of Health, 6705 Rockledge Drive, Suite 601, Bethesda, MD 20892, or email
General questions about the system of records may be submitted to Dustin Close, Office of Management Assessment, National Institutes of Health, 6705 Rockledge Drive, Suite 601, Bethesda, MD 20892, telephone 301-496-4606, email
HHS/NIH is rescinding a system of records, titled “Administration: Senior Staff, HHS/NIH/NIAID,” system number 09-25-0087. The records consist of paper files containing biographical information about key professional employees and consultants that was used for public announcements and press releases about National Institute of Allergy and Infectious Diseases (NIAID) research. The records have not been used since 2013 and are no longer needed for agency business, so are no longer retrieved by personal identifier. For these reasons, the records no longer qualify as a Privacy Act system of records. Because they have historical value, they will be transferred to the Office of NIH History and Stetten Museum for continued preservation, as authorized by National Archives and Records Administration-approved records disposition schedule 11-203 (disposition authority DAA-GRS-2016-0005-0003), after removing any sensitive information.
For the foregoing reasons, the below system of records is hereby rescinded:
Administration: Senior Staff, HHS/NIH/NIAID, 09-25-0087.
67 FR 60742 (Sept. 26, 2002), 83 FR 6591 (Feb. 14, 2018).
Coast Guard, DHS.
Notice of availability.
The Coast Guard announces the availability of Maritime Security (MARSEC) Directive 105-4, which provides cyber risk management actions for owners or operators of ship-to-shore (STS) cranes manufactured by People's Republic of China (PRC) companies (PRC-manufactured STS cranes). The directive contains security-sensitive information and, therefore, cannot be made available to the general public. Owners or operators of PRC-manufactured STS cranes should immediately contact their local Coast Guard Captain of the Port (COTP) or District Commander for a copy of MARSEC Directive 105-4.
MARSEC Directive 105-4 is available on February 21, 2024.
For information about this document call or email Brandon Link, Commander, U.S.
MARSEC Directive 105-4 provides cyber risk management actions for owners or operators of PRC-manufactured STS cranes. Owners or operators of PRC-manufactured STS cranes should immediately contact their local COTP or cognizant District Commander for a copy of MARSEC Directive 105-4.
The Maritime Transportation Security Act's implementing regulations in 33 CFR parts 101-105 are designed to protect the maritime elements of the national transportation system. Under 33 CFR 101.405, the Coast Guard may set forth additional security measures to respond to a threat assessment or to a specific threat against those maritime elements. In addition, per 33 CFR 6.14-1, the Commandant “may prescribe such conditions and restrictions relating to the safety of waterfront facilities and vessels in port as the Commandant finds to be necessary under existing circumstances.”
PRC-manufactured STS cranes make up the largest share of the global ship-to-shore crane market and account for nearly 80% of the STS cranes at U.S. ports. By design, these cranes may be controlled, serviced, and programmed from remote locations, and those features potentially leave PRC-manufactured STS cranes vulnerable to exploitation, threatening the maritime elements of the national transportation system.
As such, additional measures are necessary to prevent a Transportation Security Incident in the national transportation system due to the prevalence of PRC-manufactured STS cranes in the U.S., threat intelligence related to the PRC's interest in disrupting U.S. critical infrastructure, and the built-in vulnerabilities for remote access and control of these STS cranes.
COTPs and District Commanders can access all MARSEC directives on Homeport by logging in and going to Missions > Maritime Security > Domestic Ports and Waterway Security > Policy. Owners and operators of PRC-manufactured cranes must contact their local COTP or cognizant District Commander to acquire a copy of MARSEC Directive 105-4. COTPs or cognizant District Commanders may provide this MARSEC Directive to appropriate owners and operators in accordance with SSI handling procedures.
Pursuant to 33 CFR 101.405, we consulted with the Department of State, Department of Defense, Department of Transportation/Maritime Administration, Department of Homeland Security, Transportation Security Administration, Cybersecurity and Infrastructure Security Agency, and National Maritime Intelligence-Integration Office.
All MARSEC Directives issued pursuant to 33 CFR 101.405 are marked as SSI in accordance with 49 CFR part 1520. COTPs and District Commanders will require individuals requesting a MARSEC Directive to prove that they meet the standards for a “covered person” under 49 CFR 1520.7, have a “need to know” the information, as defined in 49 CFR 1520.11, and that they will safeguard the SSI in MARSEC Directive 105-4 as required in 49 CFR 1520.9.
This notice is issued under authority of 33 CFR 6.14-1 and 101.405(a)(2) and 5 U.S.C. 552(a).
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 May 23, 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-2412, 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
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 May 23, 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-2410, 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
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; withdrawal.
The Federal Emergency Management Agency (FEMA) is withdrawing its proposed notice concerning proposed flood hazard determinations, which may include the addition or modification of any Base Flood Elevation, base flood depth, Special Flood Hazard Area boundary or zone designation, or regulatory floodway (herein after referred to as proposed flood hazard determinations) on the Flood Insurance Rate Maps and, where applicable, in the supporting Flood Insurance Study reports for Rock County, Minnesota and Incorporated Areas.
This withdrawal is effective February 23, 2024.
You may submit comments, identified by Docket No. FEMA-B-2308, 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)
On February 23, 2023, FEMA published a proposed notice at 88 FR 11457, proposing flood hazard determinations for Rock County, Minnesota and Incorporated Areas. FEMA is withdrawing the proposed notice.
Federal Emergency Management Agency, Department of Homeland Security.
Request for applicants for appointment.
The Federal Emergency Management Agency (FEMA) is requesting qualified individuals interested in serving on the Technical Mapping Advisory Council (TMAC) apply for appointment. The TMAC, as established in the Biggert-Waters Flood Insurance Reform Act of 2012, makes recommendations to the FEMA
Applications will be accepted until 11:59 p.m. eastern standard time (EST) on Friday, April 19, 2024.
Membership applications should be submitted by one of the following methods:
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Brian Koper, Designated Federal Officer for the TMAC, FEMA, Federal Insurance and Mitigation Administration, Risk Management Directorate, 400 C St. SW, Ste. 6NW-1412, Washington, DC 20472-3020, (202) 733-7859,
The TMAC is an advisory committee established by the Biggert-Waters Flood Insurance Reform Act of 2012, 42 U.S.C. 4101a, in accordance with provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. ch. 10 (Pub. L. 117-286). The TMAC makes recommendations to FEMA on mapping-related issues and activities, including mapping standards and guidelines, performance metrics and milestones, map maintenance, interagency and intergovernmental coordination, map accuracy, and funding strategies. In addition, the TMAC submits an annual report to the FEMA Administrator that contains: (1) a description of the activities of the Council; (2) an evaluation of the status and performance of FIRMs and mapping activities to revise and update FIRMs; and (3) a summary of recommendations made by the Council to the FEMA Administrator. Members of the TMAC will be appointed based on their demonstrated knowledge and competence in areas such as surveying, cartography, remote sensing, geospatial information systems, or the technical aspects of preparing and using FIRMs. In order for FEMA to maximize the impact of the Council and the guidance it provides; the Council must be diverse with regard to professional and technical expertise. FEMA is committed to pursuing opportunities, consistent with applicable law, to compose a committee that reflects the diversity of the nation's people.
FEMA is requesting qualified individuals who are interested in serving on the TMAC to apply for an appointment. Applicants will be considered for appointment to seven vacancies on the TMAC, the terms of which start in spring/summer of 2024. Four of these seven vacancies, as described below, will be appointed to serve as a Special Government Employee (SGE) as defined in title 18 U.S.C. 202(a) to serve in their individual capacity, while the other three members of the TMAC will be appointed to serve as representative members. The candidates selected for appointment as a SGE will be subject to the Federal conflict of interest laws and standards of conduct regulations and required to file a New Entrant Confidential Disclosure Report (OGE 450). This form can be obtained by visiting the website of the Office of Government Ethics (
(a) One member of a recognized professional engineering association or organization;
(b) One member of a recognized professional association or organization representing flood hazard determination firms;
(c) One representative of a recognized professional association or organization representing State geographic information;
(d) One representative of a State government agency that has entered into cooperating technical partnerships with the Administrator and has demonstrated the capability to produce FIRMs;
(e) One representative of a local government agency that has entered into cooperating technical partnerships with the Administrator and has demonstrated the capability to produce FIRMs;
(f) One member of a recognized risk management association or organization;
(g) One State mitigation officer.
Members of the TMAC serve terms of three years with an opportunity to serve additional terms in accordance with the TMAC By-Laws. There is no application form. However, applications must include the following information:
• Applicant's full name;
• Position(s) they would like to be considered for;
• Home and business phone numbers;
• Preferred email address;
• Home and business mailing addresses;
• Current position title and organization;
• Resume or curriculum vitae; and
• The membership category of interest (
The TMAC meets as often as needed to fulfill its mission, but not less than twice a year. Members may be reimbursed for travel and per diem incurred in the performance of their duties as members of the TMAC. All travel for TMAC business must be approved in advance by the Designated Federal Officer.
The Department of Homeland Security (DHS) does not discriminate in employment on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disability and genetic information, age, membership in an employee organization, or other non-merit factor. DHS strives to achieve a widely diverse candidate pool for all its recruitment actions. Current DHS and FEMA employees will not be considered for membership. Federally registered lobbyists will not be considered.
Federal Emergency Management Agency, Department of Homeland Security.
30-Day notice of revision and request for comments.
The Federal Emergency Management Agency (FEMA) will submit the information collection abstracted below to the Office of Management and Budget for review and
Comments must be submitted on or before March 25, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Requests for additional information or copies of the information collection should be made to Director, Information Management Division, 500 C Street SW, Washington, DC 20472, email address
The Federal Emergency Management Agency's (FEMA's) Homeland Security Grant Program (HSGP) supports state, local, tribal, and territorial governments efforts to prevent terrorism and prepare the Nation for the threats and hazards that pose the greatest risk to the security of the United States. The HSGP provides funding to implement investments that build, sustain, and deliver the 32 core capabilities essential to achieving the National Preparedness Goal of a secure and resilient Nation. The building, sustainment, and delivery of these core capabilities are not exclusive to any single level of government, organization, or community, but rather, require the combined effort of the whole community. The HSGP supports core capabilities across the five mission areas of Prevention, Protection, Mitigation, Response, and Recovery based on allowable costs. HSGP is comprised of three grant programs: State Homeland Security Program (SHSP), Urban Area Security Initiative (UASI), and Operation Stonegarden (OPSG). Together, these grant programs fund a range of activities, including planning, organization, equipment purchase, training, exercises, and management and administration across all core capabilities and mission areas. The authorizing authority of the HSGP is section 2002 of the Homeland Security Act of 2002 (Pub. L. 107-296) (
This revision of the information collection removes the OPSG Daily Activity Report, FEMA Form FF-207-FY-21-113 (formerly 089-0-27) that was created at the behest of CBP to fulfill CBP's requirements under OPSG and is only used to collect information from the public by CBP. FEMA has previously included this instrument under this collection as a service to CBP, but including an instrument used by CBP under a collection granting FEMA the authority to collect information does not provide the proper service to CBP, FEMA or the public.
This proposed information collection previously published in the
Comments may be submitted as indicated in the
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is 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
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The 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).
These 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. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is 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
Office of Policy Development and Research, Chief Data Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
In addition, under 24 CFR 203.255(c) and (e), HUD conducts both pre- and post-endorsement reviews of loans submitted for FHA insurance by DE lenders. As part of those reviews, the Secretary is authorized to determine if there is any information indicating that any certification or required document is false, misleading, or constitutes fraud or misrepresentation on the part of any party, or that the mortgage fails to meet a statutory or regulatory requirement. In order to assist the Secretary with this
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
(5) Ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of Policy Development and Research, Chief Data Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
(5) Ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
HUD encourages interested parties to submit comments in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) received an application from Navajo Transitional Energy Company (NTEC) to amend its existing lease pursuant to section 302 of the Federal Land Policy and Management Act (FLPMA) of 1976, as amended, and BLM regulations. The proposed lease amendment would allow surface use only, and no mineral extractions would be allowed on the subject lands. The annual rental for this lease is $115.47 per acre, and the lease would expire on April 22, 2032, with the option of renewal. This project is located southeast of Billings, Montana.
Interested parties may submit written comments regarding the proposed amendment on or before. April 8, 2024.
Written comments may be mailed, or hand delivered to BLM Miles City Field Office, 111 Garryowen Road, Miles City, MT 59301. Comments may also be submitted electronically at
Beth Klempel, Assistant Field Manager, BLM Miles City Field Office, 111 Garryowen Road, Miles City, MT 59301, telephone 406-233-2800, or email
The proposed lease amendment effects the following described lands:
The areas described aggregate 67 acres according to the official plat of the survey of the said lands on file with the BLM, as well as approximate GIS calculations.
The BLM is considering amending the existing lease, which currently includes 277.12 acres, to authorize an additional 67 acres, which would increase the total acreage to 344.12 acres. The additional acreage would allow for surface layback, establishing a highwall crest, topsoil and overburden stockpiles, and transportation and utility corridors. Layback on the area proposed by the lease amendment is a critical component in coal surface mine recovery to stabilize the wall as mining on the adjoining land progresses.
The BLM is considering offering the lease amendment noncompetitively to NTEC because the authorized officer has determined that: (1) these parcels are surrounded by land owned or controlled by NTEC; and (2) it is unlikely there would be interest in competitive bidding on these lands.
If the BLM approves the application to amend the lease, the reimbursement of costs and annual rental is the responsibility of the applicant in accordance with the provisions of 43 CFR 2920.6 and 2920.8, respectively. The lease amendment, as proposed in the application, is consistent with the 2015 Miles City Field Office Resource Management Plan.
Comments on the proposed lease amendment should be specific, confined to issues pertinent to the proposed action, and should explain the reason for any recommended revisions. Where possible, comments should include references with specific sections or paragraphs. The BLM is not obligated to consider or include comments received after the close of the comment period or comments delivered to an address other than the one listed above.
Comments, including names and street addresses of respondents, will be available for public review at the BLM Miles City Field Office address listed in
Any adverse comments regarding the proposed lease amendment will be reviewed by the BLM Montana State Director or other authorized official of the Department of the Interior, who may sustain, vacate, or modify this realty action in whole or in part.
Bureau of Land Management, Interior.
Notice of intent.
Pursuant to the Federal Lands Recreation Enhancement Act (FLREA), the Bureau of Land Management (BLM), Royal Gorge Field Office intends to establish fee areas and to collect fees at Turtle Rock Campground, Burmac Camping Area, Shavano Camping Area, CR304 Camping Area, Browns Grotto Camping Area, Penrose Commons, Sand Gulch Campground, and The Bank Campground in Fremont and Chaffee counties, Colorado.
Comments on the proposed fee areas and fees must be received or postmarked by March 25, 2024 and must include the commenter's legible full name and address. Starting on August 23, 2024, the BLM will have the option to initiate fee collection at the sites listed in the
Please email comments to
Kalem Lenard, Assistant Field Manager, phone (719) 269-8500, email:
The BLM is committed to providing and receiving fair value for the use of developed recreation facilities and services in a manner that meets public-use demands, provides quality experiences, and protects important resources. The BLM's policy is to collect fees at specialized recreation sites or where the BLM provides facilities, equipment, or services at Federal expense, in connection with outdoor use. Pursuant to FLREA and the regulations at 43 CFR subpart 2933, the BLM may charge expanded amenity fees for overnight camping and group use, including reservation services, where specific amenities and services are provided.
FLREA directs the Secretary of the Interior to publish a 6-month advance notice in the
• $20 per night basic campsite fee and $40 per night group campsite fee at Turtle Rock Campground;
• $10 per night campsite fee for primitive campsites at Shavano, Burmac, Browns Grotto, County Road 304, and Penrose Commons camping areas; and
• $10 per night vehicle fee for overnight camping use in overflow camping areas with access to nearby campground facilities at Burmac, County Road 304, Penrose Commons, The Bank Campground, and Sand Gulch Campground.
The Royal Gorge Field Office Campground Business Plan used a market analysis and management expense estimates to determine the expanded amenity fees at these recreation sites. The BLM's public outreach process and analysis of the fee program are detailed in the Business Plan. These expanded amenity camping fees are consistent with other established fee sites in the region.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the University of Minnesota Twin Cities (UMN); Minnesota Indian Affairs Council; Science Museum of Minnesota; University of Colorado Museum (Boulder); Milwaukee Public Museum; Denver Art Museum; Yale Peabody Museum; and Cleveland Museum of Art, hereafter the Collaborating Museums, have completed an inventory of associated funerary objects and have determined that there is a cultural affiliation between the associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice.
Repatriation of the associated funerary objects in this notice may occur on or after March 25, 2024.
Alejandra Peña Gutiérrez, Weisman Art Museum, University of Minnesota, 333 East River Road, Minneapolis, MN 55455, telephone (612) 624-5934, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Collaborating Museums, and additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records. The National Park Service is not responsible for the determinations in this notice.
Based on the information available, 19 funerary objects have been reasonably identified as associated with human remains described on a previous notice submitted by the Collaborating Museums. The 19 associated funerary objects are bowls with painted decoration over white slip. These items were excavated from the Cameron Creek site in Grant County NM in 1923, 1927, and 1928 by multiple institutions in partnership including the University of Minnesota. While human remains were transported to the University of Minnesota, funerary items were divided among participating institutions, including the Santa Fe Museum (now the Museum of Indian Arts and Culture/Laboratory of Anthropology). The latter museum sold 20 bowls, including those listed here, to the Cleveland Museum of Art in 1930. The Cameron Creek site is identified by archaeologists as a Mimbres culture site.
Based on the information available and the results of consultation, cultural affiliation is clearly identified by the information available about the associated funerary objects described in this notice.
The Collaborating Museums have determined that:
• The 19 objects described in this notice are reasonably believed to have been placed intentionally with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a reasonable connection between the associated funerary objects described in this notice and the Hopi Tribe of Arizona; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Okhay Owingeh, New Mexico; Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Santo Domingo Pueblo; Ysleta del Sur Pueblo; and the Zuni Tribe of the Zuni Reservation, New Mexico.
Written requests for repatriation of the associated funerary objects in this notice must be sent to the authorized representative identified in this notice under
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the associated funerary objects in this notice to a requestor may occur on or after March 25, 2024. If competing requests for repatriation are received, the Collaborating Museums must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the associated funerary objects are considered a single request and not competing requests. The Collaborating Museums are responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Arkansas Archeological Survey has completed an inventory of human remains and has determined that there is a cultural affiliation between the human remains and Indian Tribes or Native Hawaiian organizations in this notice. The human remains were removed from Little River County Arkansas.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after March 25, 2024.
Sarah Shepard, Arkansas Archeological Survey, 2475 N. Hatch Avenue, Fayetteville, AR 72704, telephone (479) 575-6552, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Arkansas Archeological Survey. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the Arkansas Archeological Survey.
A detailed assessment of the human remains was made by the FBI professional staff in consultation with representatives of the Caddo's Nation's Tribal Historic Preservation Office. A government-to-government tribal consultation meeting was held on November 8, 2023, in Shawnee, Oklahoma. Conversations between the ARAS and Caddo Nation continued after that period.
The Arkansas Archeological Survey (ARAS) received a transfer from the Federal Bureau of Investigation (FBI) on October 5, 2023, of human remains recovered from a seizure in Indiana.
At an unknown date, human remains representing, at minimum, one individual were removed Little River County Arkansas. This individual was removed from the Bowman site, a large prehistoric Caddo ceremonial center on the Red River (Little River County) in Southwestern Arkansas. Following removal, the human remains (a single cranium) were transported to Indiana, where they remained as part of a private collection of Native American antiquities and cultural heritage. In April 2014, the human remains were seized by the FBI as part of a criminal
Based upon the historical record, site analysis, evidence obtained through criminal investigation, osteological analysis, and tribal consultation, the ARAS believes that there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Caddo Nation.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes, ARAS has determined that:
• The human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• There is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Caddo Nation of Oklahoma.
Written requests for repatriation of the human remains in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains in this notice to a requestor may occur on or after March 25, 2024. If competing requests for repatriation are received, ARAS must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains are considered a single request and not competing requests. ARAS is responsible for notifying the Caddo Nation that this notice has been published.
This notice was submitted before the effective date of the revised regulations (88 FR 86452, December 13, 2023, effective January 12, 2024). As the notice conforms to the mandatory format of the
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the U.S. Army Corps of Engineers, Nashville District intends to carry out the disposition of human remains removed from Federal lands to the lineal descendants, Indian Tribe, or Native Hawaiian organization with priority for disposition in this notice.
Disposition of the human remains or cultural items in this notice may occur on or after March 25, 2024. If no claim for disposition is received by February 24, 2025, the human remains or cultural items in this notice will become unclaimed human remains or cultural items.
Crystal Geiger, Archaeologist, U.S. Army Corps of Engineers, Nashville District, 110 9th Avenue South, Room A-405, Nashville, TN 37203, telephone (615) 736-2472, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the U.S. Army Corps of Engineers, Nashville District and additional information on the human remains or cultural items in this notice, including the results of consultation, can be found in the related records. The National Park Service is not responsible for the identifications in this notice.
Based on the information available, human remains representing, at least, one individual have been reasonably identified. No associated funerary objects are present. In October 2023 a local fisherman reported exposed skeletal remains located on U.S. Army Corps, Nashville District managed lands in Dover, Stewart County, TN. The Stewart County Deputy Sheriff and a representative from the Tennessee Bureau of Investigation (TBI) visited the site and the TBI took possession of the remains. The human remains collected by TBI were transferred to U.S. Army Corps, Nashville District custody on October 20, 2023, and are stored in a secure location. Given the stratigraphic location of the discovery, and nearby pre-contact period sites with similar graves, the human remains are determined to be Native American in origin.
The U.S. Army Corps of Engineers, Nashville District has determined that:
• The human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• The Cherokee Nation; Eastern Band of Cherokee Indians; The Chickasaw Nation; and the United Keetoowah Band of Cherokee Indians in Oklahoma have priority for disposition of the human remains or cultural item described in this notice.
Written claims for disposition of the human remains or cultural items in this notice must be sent to the appropriate official identified in this notice under
1. Any lineal descendant, Indian Tribe, or Native Hawaiian organization identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that they have priority for disposition.
Disposition of the human remains or cultural items in this notice may occur on or after March 25, 2024. If competing claims for disposition are received, the U.S. Army Corps of Engineers, Nashville District must determine the most appropriate claimant prior to disposition. Requests for joint disposition of the human remains or cultural items are considered a single request and not competing requests. The U.S. Army Corps of Engineers, Nashville District is responsible for sending a copy of this notice to the lineal descendants, Indian Tribes, and Native
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the California State Department of Transportation (Caltrans) has completed an inventory of human remains and associated funerary objects and have determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes in this notice. The human remains and associated funerary objects were removed from Sacramento County, CA.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after March 25, 2024.
Dr. Lisa Bright, Branch Chief District 3, Cultural Resources (South), California State Department of Transportation, 703 B Street Marysville, CA 95901, telephone (530) 812-4569, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of Caltrans. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by California State University, Sacramento (Sacramento State) and Caltrans.
In the spring of 1957 (approximately February/March) human remains representing, at minimum, six individuals were removed from CA-SAC-96 (Accession Number 81-299; also known as Allen/Allyn Mound). The 1957 excavations were carried out by Sacramento State College (now Sacramento State) under the direction of Norman Wilson on behalf of the California Division of Highways (now Caltrans). No excavation reports were written, and the collection remained uncatalogued until October 2023.
Occupation of the site is estimated to have occurred during the Late Phase 2, post 500 years before present based on bead and pendent size and shape although occupation could extend back as far as 1,000 years before present. The associated funerary objects removed from this site (83 catalog entries) include baked clay objects; modified bones, stones, and shells; historic materials; flaked and ground stones; faunal remains; burnt basketry; and beads. The human remains were not individually catalogued, and those that had been previously boxed separately were treated as lots. Bags of faunal remains were also treated as lots to minimize handling. An additional 18 objects are currently missing from the collection and Caltrans and Sacramento State continues to look for them. This count is based on handwritten index cards that were identified as associated with this collection. These 18 objects were not identified during the cataloging process.
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: anthropological, archeological, geographical, historical, oral traditional, and expert opinion.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, Caltrans has determined that:
• The human remains described in this notice represent the physical remains of six individuals of Native American ancestry.
• The 83 catalog entries described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and the Buena Vista Rancheria of Me-Wuk Indians of California; Chicken Ranch Rancheria of Me-Wuk Indians of California; Ione Band of Miwok Indians of California; Jackson Band of Miwuk Indians; Shingle Springs Band of Miwok Indians, Shingle Springs Rancheria (Verona Tract), California; United Auburn Indian Community of the Auburn Rancheria of California; and the Wilton Rancheria, California.
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after March 25, 2024. If competing requests for repatriation are received, California State University, Sacramento must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. Caltrans is responsible for sending a copy of this notice to the Indian Tribes identified in this notice.
This notice was submitted after the effective date of the revised regulations (88 FR 86452, December 13, 2023, effective January 12, 2024) but in the older format. As the notice conforms to the mandatory format of the
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Field Museum has completed an inventory of human remains and has determined that there is a cultural affiliation between the human remains and Indian Tribes or Native Hawaiian organizations in this notice.
Repatriation of the human remains in this notice may occur on or after March 25, 2024.
Helen Robbins, Repatriation Director, Field Museum, 1400 S Lake Shore Drive, Chicago, IL 60605, telephone (312) 665-7317, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Field Museum, and additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records. The National Park Service is not responsible for the determinations in this notice.
Based on the information available, human remains representing, at least, four individuals have been reasonably identified. No associated funerary objects are present. The human remains are hair clippings belonging to four individuals, identified with the tribal designations “Klamath” and “Modoc” (Field Museum catalog numbers 193211.7, 193212.4, 193216.10, and 193216.12). Field Museum staff believe they were collected under the direction of Franz Boas and Frederick Ward Putnam for the 1893 World's Columbian Exposition in Chicago. The hair clippings were accessioned into the Field Museum's collection in 1939. No information regarding the individual's name, sex, age, or geographic location has been found. There is no known presence of any potentially hazardous substances.
Based on the information available and the results of consultation, cultural affiliation is clearly identified by the information available about the human remains describes in this notice.
The Field Museum has determined that:
• The human remains described in this notice represent the physical remains of four individuals of Native American ancestry.
• There is a reasonable connection between the human remains described in this notice and the Klamath Tribes and the Modoc Nation.
Written requests for repatriation of the human remains in this notice must be sent to the authorized representative identified in this notice under
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains in this notice to a requestor may occur on or after March 25, 2024. If competing requests for repatriation are received, the Field Museum must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains are considered a single request and not competing requests. The Field Museum is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Arkansas Archeological Survey has completed an inventory of human remains and has determined that there is a cultural affiliation between the human remains and Indian Tribes or Native Hawaiian organizations in this notice. The human remains were removed from unknown locations in the eastern Arkansas Mississippi River valley.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after March 25, 2024.
Sarah Shepard, Arkansas Archeological Survey, 2475 N. Hatch Avenue, Fayetteville, AR 72704, telephone (479) 575-6552, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Arkansas Archeological Survey. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the Arkansas Archeological Survey.
A detailed assessment of the human remains was made by the FBI professional staff in consultation with representatives of tribal partners between 2018 and 2023, and finally on November 8, 2023, in Shawnee, Oklahoma. Conversations between the ARAS, Osage Nation, and Quapaw Nation continued after that point. On December 4th, 2023, a decision was made for the Quapaw to move forward in affiliation with the human remains.
The Arkansas Archeological Survey (ARAS) received a transfer from the Federal Bureau of Investigation (FBI) on
Based upon the historical record, site analysis, evidence obtained through criminal investigation, osteological analysis, and tribal consultation, the ARAS believes that there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Quapaw Nation.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes, ARAS has determined that:
• The human remains described in this notice represent the physical remains of six individuals of Native American ancestry.
• There is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Quapaw Nation.
Written requests for repatriation of the human remains in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains in this notice to a requestor may occur on or after March 25, 2024. If competing requests for repatriation are received, ARAS must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains are considered a single request and not competing requests. ARAS is responsible for notifying the Quapaw Nation that this notice has been published.
This notice was submitted before the effective date of the revised regulations (88 FR 86452, December 13, 2023, effective January 12, 2024). As the notice conforms to the mandatory format of the
National Park Service, Interior.
Meeting notice.
In accordance with the Federal Advisory Committee Act of 1972, as amended, the National Park Service (NPS) is hereby giving notice that the National Park System Advisory Board (Board) has rescheduled public meetings originally scheduled for March 7-8, 2024.
The Board will hold public meetings on Wednesday May 1, 2024, from 9:00 a.m. until 5:00 p.m. (EASTERN) and Thursday May 2, 2024, from 9:00 a.m. until 5:00 p.m. (EASTERN). Individuals who wish to participate must contact the person listed in the
The Board will meet at the Stuart Lee Udall Department of the Interior Building, 1849 C Street NW, Washington, DC 20240. Electronic submissions of materials or requests are to be sent to
(a) For information concerning attending the Board meeting or to request to address the Board, contact Monique VanLandingham, Office of Policy, National Park Service, telephone (202) 641-4467, or email
The Board has been established by authority of the Secretary of the Interior (Secretary) under 54 U.S.C. 100906 and is regulated by the Federal Advisory Committee Act.
The agenda may include the review of proposed actions regarding the NHL Program and NNL Program. Interested parties are encouraged to submit written comments and recommendations that will be presented to the Board. Interested parties also may attend the Board meeting and upon request may address the Board concerning an area's national significance.
NHL Program matters will be considered, during which the Board may consider the following:
Commonwealth of the Northern Mariana Islands.
• LATTE QUARRY AT AS NIEVES, Rota, CNMI.
• THE FURIES COLLECTIVE, Washington, DC.
• BIG BONE LICK SITE, Union, KY.
• KREGEL WINDMILL COMPANY FACTORY, Nebraska City, NE.
• CHARLESTON CIGAR FACTORY, Charleston, SC.
• SITKA NAVAL OPERATING BASE AND U.S. ARMY COASTAL DEFENSES (updated documentation), Sitka, AK.
• LADD FIELD (updated documentation), Fairbanks, AK.
• PU'UKOHOLĀ HEIAU (updated documentation, boundary change), Kawaihae, HI.
• QUINCY MINING COMPANY HISTORIC DISTRICT (updated documentation, boundary change), Houghton County, MI.
• CALUMET HISTORIC DISTRICT (updated documentation, boundary change), Calumet, MI.
• WATKINS MILL (updated documentation), Lawson, MO.
• FORT BROWN (updated documentation, boundary change), Brownsville, TX.
• CEDAR CREEK BATTLEFIELD AND BELLE GROVE (updated documentation, boundary change), Middletown, VA.
• WYOMING STATE CAPITOL BUILDING AND GROUNDS (updated documentation), Cheyenne, WY.
• JOSEPHUS DANIELS HOUSE (WAKESTONE), Raleigh, NC.
•
NNL Program matters will be considered, during which the Board may consider the following:
• INDEPENDENCE CREEK PRESERVE, Terrell County, TX.
Interested persons may choose to make oral comments at the meeting during the designated time for this purpose. Depending on the number of people wishing to comment and the time available, the amount of time for oral comments may be limited. Interested parties should contact Monique VanLandingham (see
Drug Enforcement Administration, Justice.
Notice of application.
Siemens Healthcare Diagnostics Inc. has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before April 23, 2024. Such persons may also file a written request for a hearing on the application on or before April 23, 2024.
The Drug Enforcement Administration (DEA) requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on January 10, 2024, Siemens Healthcare Diagnostics Inc., 100 GBC Drive, Mailstop 108, Newark, Delaware 19702-2461 applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to produce the listed controlled substance in bulk to be used in the manufacture of the DEA exempt products. No other activities for this drug code is authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Meridian Medical Technologies, LLC has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before March 25, 2024. Such persons may also file a written request for a hearing on the application on or before March 25, 2024.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on January 17, 2024, Meridian Medical Technologies, LLC, 2555 Hermelin Drive, Saint Louis, Missouri 63144, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the listed controlled substances for analytical purposely only. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
Pall Life Sciences PR, LLC has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before March 25, 2024. Such persons may also file a written request for a hearing on the application on or before March 25, 2024.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on January 11, 2024, Pall Life Sciences PR, LLC, Road 194, Kilometer 0.4, Fajardo, Puerto Rico 00738, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the listed controlled substances for research purposes, drug testing, and analysis to support foreign regulatory compliance of finished dosage forms to foreign markets. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-
Drug Enforcement Administration, Justice.
Notice of application.
S&B Pharma LLC DBA Norac Pharma has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before March 25, 2024. Such persons may also file a written request for a hearing on the application on or before March 25, 2024.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on January 10, 2024, S&B Pharma LLC DBA Norac Pharma, 405 South Motor Avenue, Azusa, California 91702, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import intermediate forms of Tapentadol (9780) for further manufacturing prior to distribution to its customers. The company plans to import ANNP (8333) to bulk manufacture other controlled substances for distribution to its customers. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
Patheon API Services Inc. has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before April 23, 2024. Such persons may also file a written request for a hearing on the application on or before April 23, 2024.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on December 21, 2023, Patheon API Services Inc., 101 Technology Place, Florence, South Carolina 29501, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the above controlled substances to support customers' clinical trials. No other activities for these drug codes are authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Pfizer, Inc. has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplementary Information
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before March 25, 2024. Such persons may also file a written request for a hearing on the application on or before March 25, 2024.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on January 24, 2024, Pfizer, Inc. 45 Eastern Point Road, Groton, Connecticut 06340-5157, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the listed controlled substances as finished dosage to support internal research purposes. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
Janssen Pharmaceuticals Inc. has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before March 25, 2024. Such persons may also file a written request for a hearing on the application on or before March 25, 2024.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on December 7, 2023, Janssen Pharmaceuticals Inc., 1440 Olympic Drive, Buildings 1-5 & 7-14, Athens, Georgia 30601-1645, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import intermediates classified under Tapentadol (9780) for further manufacturing to the controlled substance Tapentadol respectively, prior to distribution to customers. No other activity for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
S&B Pharma LLC has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before April 23, 2024. Such persons may also file a written request
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on February 6, 2024, S&B Pharma LLC, 405 South Motor Avenue, Azusa, California 91702, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the listed controlled substances for the internal use intermediates for formulation and analytical development purposes or for sale to its customers. In reference to dug codes 7360 (Marihuana), and 7370 (Tetrahydrocannabinols), the company plans to bulk manufacture these drugs as synthetic. No other activities for these drug codes are authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Patheon API Services, Inc. has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before March 25, 2024. Such persons may also file a written request for a hearing on the application on or before March 25, 2024.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on December 21, 2023, Patheon API Services, Inc., 101 Technology Place, Florence, South Carolina 29501 applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the listed controlled substances as reference standards for research and development as part of API Manufacturing. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2).
Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Notice.
The Department of Labor (DOL), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. The program helps ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. The Office of Federal Contract Compliance Programs (OFCCP) is soliciting comments concerning its proposal to obtain approval from the Office of Management and Budget (OMB) for a reinstatement with change of the Monthly Employment Utilization Report (CC-257). A copy of the proposed information collection request can be obtained by contacting the office listed below in the
Written comments must be submitted to the office listed in the addresses section below on or before April 23, 2024.
You may submit comments by any of the following methods:
Tina T. Williams, Acting Deputy Director of OFCCP and Director of Policy & Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW, Room C-3325, Washington, DC 20210. Telephone: (202) 693-0103 or toll free at 1-800-397-6251. If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services. Copies of this notice may be obtained in alternative formats (large print, braille, audio recording) upon request by calling the numbers listed above.
I.
• Executive Order 11246, as amended (E.O. 11246);
• Section 503 of the Rehabilitation Act of 1973, as amended (Section 503); and
• Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (VEVRAA).
These authorities prohibit employment discrimination by Federal contractors and subcontractors and require them to take affirmative action to ensure that equal employment opportunities are available regardless of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. Additionally, Federal contractors and subcontractors are prohibited from discriminating against applicants and employees for asking about, discussing, or sharing information about their pay or, in certain circumstances, the pay of their co-workers.
E.O. 11246 applies to Federal contractors and subcontractors and to federally assisted construction contractors holding a Government contract in excess of $10,000, or Government contracts that have, or can reasonably be expected to have, an aggregate total value exceeding $10,000 in a 12-month period. E.O. 11246 also applies to government bills of lading, depositories of Federal funds in any amount, and to financial institutions that are issuing and paying agents for U.S. savings bonds.
Section 503 prohibits Federal contractors and subcontractors from discriminating in employment against individuals with disabilities. It also requires Federal contractors and subcontractors to take affirmative action to ensure equal employment opportunity for individuals with disabilities. The Section 503 requirements apply to businesses with a direct Federal construction contract of more than $15,000. If the construction contractor has at least 50 employees and a single contract of $50,000 or more, then it must also develop a Section 503 affirmative action program (AAP), as described in 41 CFR 60-741, subpart C.
VEVRAA prohibits Federal contractors and subcontractors from discriminating in employment against protected veterans. It also requires Federal contractors and subcontractors to take affirmative action to ensure equal employment opportunity for protected veterans. The VEVRAA requirements apply to businesses with a direct Federal construction contract of $150,000 or more. If the construction contractor has at least 50 employees and a single contract of $150,000 or more, then it must also develop a VEVRAA AAP, as described in 41 CFR 60-300, subpart C.
This information collection request (ICR) seeks a reinstatement with change of the Monthly Employment Utilization Report (CC-257). The CC-257 is a form that covered construction contractors previously submitted to OFCCP on a monthly basis and included information on employee work hours by race/ethnicity, gender, and trade in the covered area. With the proposed CC-257, construction contractors will provide information on employee work hours and employee count by race/ethnicity, gender, and trade in the covered area. With this information collection, OFCCP can strengthen its construction program by using the collected information to inform compliance assistance efforts and track the progress of contractor's outreach efforts and the agency's Megaproject Program. The collected information can also improve OFCCP's scheduling of compliance evaluations of covered construction contractors, as the reports will provide relevant information on which projects are currently active and current employee counts.
• Evaluate the proposed reinstatement of the CC-257 and the proposed changes to the CC-257;
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• 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.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the information collection request; they will also become a matter of public record.
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 March 25, 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 Department of Labor's Employee Benefits Security Administration (EBSA) maintains a program designed to provide education and technical assistance to participants and beneficiaries as well as to employers, plan sponsors, and service providers related to their health and retirement plan benefits. EBSA assists participants in understanding their rights, responsibilities, and benefits under employee benefit law and intervenes informally on their behalf with the plan sponsor in order to assist them in obtaining the health and retirement benefits to which they may have been inappropriately denied, which can avert the necessity for a formal investigation or a civil action. EBSA maintains a toll-free telephone number through which inquirers can reach Benefits Advisors in ten Regional Offices. EBSA has also made a request for assistance form available on its website for those wishing to obtain assistance in this manner. Contact with EBSA is entirely voluntary.
The collection of information is an intake form for assistance requests from the public. This information includes the plan type, broad categories of problem type, contact information for responsible parties, and a mechanism for the inquirer to attach relevant documents. Summary data from the existing intake form has also been used, in accordance with section 513 of ERISA, to respond to requests for information regarding employee benefit plans from members of Congress and governmental oversight entities, and to inform the policy formulation process. 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.
(Authority: 44 U.S.C. 3507(a)(1)(D))
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the Excavations Standard (Design of Cave-in Protection Systems).
Comments must be submitted (postmarked, sent, or received) by April 23, 2024.
For further information on submitting comments, see the “Public Participation” heading in the section of this notice titled
Seleda Perryman, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor; telephone (202) 693-2222.
The Department of Labor, as part of the continuing effort to reduce paperwork and respondent (
The following sections describe who uses the information collected under each requirement, as well as how they use it. The purpose of these requirements is to reduce employees' risk of death or serious injury while working in hazardous conditions due to cave-ins.
Paragraphs (b) and (c) of § 1926.652 (“Requirements for Protective Systems”; the “Standard”) contain paperwork requirements that impose burden hours or costs on employers. These paragraphs require employers to use protective systems to prevent cave-ins during excavation work; these systems include sloping the side of the trench, benching the soil away from the excavation, or using a trench shielding system (such as a trench box). The Standard specifies allowable configurations and slopes for excavations and provides appendices to assist employers in designing protective systems. However, paragraphs (b)(3) and (4) of the Standard permit employers to design sloping or benching systems based on tabulated data (Option 3), or to use a design approved by a registered professional engineer (Option 4).
Under Option 3, employers must provide the tabulated data in a written form that also identifies the registered professional engineer who approved the data and the parameters used to select the sloping or benching system drawn from the data, as well as the limitations of the data (including the magnitude and configuration of slopes determined to be safe). The document must also provide any explanatory information necessary to select the correct benching system based on the data. Option 2 requires employers to develop a written design approved by a registered professional engineer. The design information must include the magnitude and configuration of the slopes determined to be safe, and the identity of the registered professional engineer who approved the design.
Paragraph (c)(2)(iii) allows employers to use manufacturer's tabulated data or to deviate from the data provided. The manufacturer's specification, recommendations, and limitations as well as the manufacturer's approval to deviate from these items shall be in writing. Paragraphs (c)(3) and (4) allow employers to design support systems, shield systems, and other protective systems based on tabulated data provided by a system manufacturer (Option 3) or obtained from other sources including a registered professional engineer and approved by a registered professional engineer (Option 4).
Each of these provisions requires employers to maintain a copy of the documents described in these options at the jobsite during construction. After construction is completed, employers may store the documents off-site provided they make them available to an OSHA compliance officer on request. These documents provide both the employer and the compliance officer with information needed to determine if the selection and design of the protective system are appropriate to the excavation work, thereby assuring workers of maximum protection against cave-ins.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions to protect workers, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information, and transmission techniques.
OSHA is requesting that OMB extend the approval of the information collection requirements contained in the Excavations Standard. The agency is requesting an adjustment decrease in burden hours from 40,041 hours to 22,697 hours, a difference of 17,344 hours. This decrease is due to the number of apartment and non-residential construction projects/sites from 5,720 to 3,243.
OSHA will summarize the comments submitted in response to this notice and will include this summary in the request to OMB to extend the approval of the information collection requirements.
You may submit comments in response to this document as follows: (1) electronically at
Comments and submissions are posted without change at
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the Powered Industrial Trucks Standard.
Comments must be submitted (postmarked, sent, or received) by April 23, 2024.
For further information on submitting comments, see the “Public Participation” heading in the section of this notice titled
Seleda Perryman, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor; telephone (202) 693-2222.
The Department of Labor, as part of the continuing effort to reduce paperwork and respondent (
The following sections describe who uses the information collected under each requirement, as well as how they use it.
The purpose of these requirements is to address truck design, construction, and modification, as well as certification of training and evaluation for truck operators.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions to protect workers, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information, and transmission techniques.
OSHA is requesting that OMB extend the approval of the information collection requirements contained in Powered Industrial Trucks Standard. The agency is requesting an adjustment decrease from 450,022 hours to 437,198 hours, a difference of 12,824 hours. This decrease is due to the decrease in the number of powered industrial trucks from 1,276,055 to 1,239,687.
OSHA will summarize the comments submitted in response to this notice and will include this summary in the request to OMB to extend the approval of the information collection requirements.
You may submit comments in response to this document as follows: (1) electronically at
Comments and submissions are posted without change at
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the Grain Handling Facilities Standard.
Comments must be submitted (postmarked, sent, or received) by April 23, 2024.
For further information on submitting comments, see the “Public Participation” heading in the section of this notice titled
Seleda Perryman, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor; telephone (202) 693-2222.
The Department of Labor, as part of the continuing effort to reduce paperwork and respondent (
The following sections describe who uses the information collected under each requirement, as well as how they use it. The purpose of these requirements is to reduce employees' risk of death or serious injury while working in grain handling facilities.
Paragraph (d) of the Standard requires the employer to develop and implement an emergency action plan so that employees will be aware of the appropriate actions to take in the event of an emergency.
Paragraph (e)(1) requires that employers provide training to employees at least annually and when changes in job assignment will expose them to new hazards. Paragraph (f)(1) requires the employer to issue a permit for all hot work. Under paragraph (f)(2) the permit shall certify that the requirements contained in 1910.272(a) have been implemented prior to beginning the hot work operations and shall be kept on file until completion of the hot work operation.
Paragraph (g)(1)(i) requires the employer to issue a permit for entering bins, silos, or tanks unless the employer or the employer's representative is present during the entire operation. The permit shall certify that the precautions contained in paragraph (g) have been implemented prior to employees entering bins, silos, or tanks and shall be kept on file until completion of the entry operations.
Paragraph (g)(1)(ii) requires that the employer de-energize, disconnect, lockout and tag, block off, or otherwise prevent operation of all mechanical, electrical, hydraulic, and pneumatic equipment that presents a danger to employees inside grain storage structures.
Paragraphs (i)(1) and (i)(2) require the employer to inform contractors performing work at the grain handling facility of known potential fire and explosion hazards related to the contractor's work and work area and to explain to the contractor the applicable provisions of the emergency action plan.
Paragraph (j)(1) requires the employer to develop and implement a written housekeeping program that establishes the frequency and method(s) determined to best reduce accumulations of fugitive grain dust on ledges, floors, equipment, and other exposed surfaces.
Under paragraph (m)(1), the employer is required to implement preventative maintenance procedures consisting of regularly scheduled inspections of at least the mechanical and safety control equipment associated with dryers, grain stream processing equipment, dust collection equipment including filter collectors, and bucket elevators. Paragraph (m)(3) requires a certification to be maintained for each inspection. Paragraph (m)(4) requires the employer to implement procedures for the use of tags and locks that will prevent the inadvertent application of energy or motion to the equipment being repaired, serviced, or adjusted.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions to protect workers, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information, and transmission techniques.
OSHA is requesting that OMB extend the approval of the information collection requirements contained in the Grain Handling Facilities Standard. The agency is requesting that the currently approved burden hours of 57,837 hours remain the same.
OSHA will summarize the comments submitted in response to this notice and will include this summary in the request to OMB to extend the approval of the information collection requirements.
You may submit comments in response to this document as follows: (1) electronically at
Comments and submissions are posted without change at
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, the National Aeronautics and Space Administration (NASA) announces a meeting of the Biological and Physical Sciences Advisory Committee. This Committee reports to the Director, Biological and Physical Sciences Division, Science Mission Directorate, NASA Headquarters. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Thursday, April 25, 2024, 10 a.m.-6 p.m.; and Friday, April 26, 2024, 10 a.m.-3 p.m., Eastern Time.
Public attendance will be virtual only. See dial-in and Webex information below.
Mrs. KarShelia Kinard, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-2355, or
As noted above, this meeting is virtual and will take place by dial-in and via Webex. Any interested person must use a touch-tone phone to participate in this meeting. The Webex connectivity information for each day is provided below.
For audio, when you join the Webex event, you may use your computer or provide your phone number to receive a call back, otherwise, call the U.S. toll conference number listed for each day.
On Thursday, April 25, the event address for attendees is:
To join by telephone, the numbers are: 1-929-251-9612 or 1-415-527-5035. Access code: 2828 144 7318.
On Friday, April 26, the event address for attendees is:
To join by telephone, the numbers are: 1-929-251-9612 or 1-415-527-5035. Access code: 2829 034 8376.
The agenda for the meeting includes the following topics:
The agenda will be posted on the Biological and Physical Sciences Advisory Committee web page:
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
Institute of Museum and Library Services (IMLS).
Notice of meeting.
Pursuant to the Federal Advisory Committee Act, notice is hereby given that the President's Committee on the Arts and the Humanities will meet to carry out administrative functions and to consider preliminary recommendations for agency action.
Jasmine Jennings, Assistant General Counsel and Alternate Designated Federal Officer, Institute of Museum and Library Services, Suite 4000, 955 L'Enfant Plaza North SW, Washington, DC 20024; (202) 653-4653;
The President's Committee on the Arts and the Humanities is meeting pursuant Executive Order 14084 and the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App. The 75th Meeting of the President's Committee on the Arts and Humanities will convene at 1:00 p.m. EST on February 26, 2023. This meeting will be an Executive Session (closed to the public and personnel).
As identified above, the President's Committee on the Arts and the Humanities meeting will be closed to the public and personnel pursuant to subsection (c)(9) of section 552b of Title 5, United States Code, as amended. The closed session will consider information which if prematurely disclosed would be likely to significantly frustrate implementation of a proposed agency action.
National Science Foundation.
Notice of request for information.
The National Science Foundation (NSF), on behalf of the White House National Science and Technology Council (NSTC) Marine Carbon Dioxide Removal Fast-Track Action Committee (MCDR-FTAC), requests input from all interested parties to inform the development of an implementation plan to advance a key recommendation of the Ocean Climate Action Plan (OCAP) regarding marine carbon dioxide removal (CDR) research. Marine CDR refers to efforts to increase the amount of atmospheric carbon dioxide taken up by the ocean, adding to the large, natural ocean carbon reservoir. The deployment of safe and effective CDR approaches is increasingly regarded in scientific assessments as necessary in the near future to meet climate goals. The implementation plan, hereafter referred to as the Marine CDR Plan, will advance three actions to enable marine CDR research that are called for in the Ocean Climate Action Plan: establish a comprehensive Federal marine CDR research program; clarify permitting, regulatory, and other standards and policies, and establish guidelines for marine CDR research; and
Responses are due by 11:59 p.m. eastern time on April 23, 2024. Submissions received after the deadline may not be taken into consideration.
Interested individuals and organizations should submit comments electronically to
Please note that MCDR-FTAC agencies may post responses to this RFI, without change, on their websites. NSF, therefore, requests that no business proprietary information, copyrighted information, or personally identifiable information be submitted in response to this RFI. Please note that the U.S. Government will not pay for response preparation, or for the use of any information contained in the response.
For further information, please contact: Tricia Light, Office of Science & Technology Policy. Phone (202) 881-7242; email:
Climate change is an existential threat that is causing rising sea levels, melting glaciers and record-setting temperatures, as well as more extreme events, like severe flooding, heatwaves, serious droughts, costly storms, and widespread wildfires. The emissions of carbon dioxide that contribute to climate change are also acidifying the ocean. Rapid and deep reductions in global greenhouse gas emissions are essential to avoid potentially catastrophic consequences. However, reducing emissions alone may not be enough. Carbon dioxide emitted over the last 170 years has accumulated in the atmosphere to such an extent that “large-scale deployment of carbon dioxide removal (CDR)” approaches will also be needed to keep warming below 1.5 °C.
The United States Ocean Climate Action Plan (OCAP)
To advance the marine CDR objectives of the OCAP, the MCDR-FTAC will develop a National Marine CDR Plan that will—
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In developing these three actions in the Marine CDR Plan, the MCDR-FTAC will seek to harmonize and streamline existing Federal research efforts, the regulatory process, and public engagement and partnerships for marine CDR.
You may provide information for one or as many topics below as you choose. Clearly indicate in your submission which questions are being addressed. The MCDR-FTAC is seeking input from the public on the following:
Nuclear Regulatory Commission.
Notice; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of amendments to Facility Operating License Nos. NPF-90 and NPF-96, issued on February 7, 1996, and October 22, 2015, respectively, and held by Tennessee Valley Authority (TVA, the licensee) for the operation of Watts Bar Nuclear Plant (Watts Bar), Units 1 and 2. The proposed amendments would revise the Watts Bar, Units 1 and 2, Technical Specification (TS) 4.2.1, “Fuel Assemblies,” and TS 5.9.6, “Reactor Coolant System (RCS) Pressure and Temperature Limits Report (PTLR),” to increase the maximum number of tritium producing burnable absorber rods (TPBARs) and to add supporting methodologies. The proposed amendments would also revise the Watts Bar Dual-Unit Updated Final Safety Analysis Report to modify the source term for design basis accident analyses. The NRC is issuing an environmental assessment (EA) and finding of no significant impact (FONSI) associated with the proposed amendments.
The EA and FONSI referenced in this document are available on February 23, 2024.
Please refer to Docket ID NRC-2024-0035 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
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• NRC's PDR: The PDR, where you may examine and order copies of publicly available documents, is open by appointment. To make an appointment to visit the PDR, please send an email to
Kimberly Green, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-1627; email:
The NRC is considering issuance of amendments to Facility Operating License Nos. NPF-90 and NPF-96, issued to TVA, for the operation of Watts Bar, Units 1 and 2, located in Rhea County, Tennessee. Therefore, as required by section 51.21, “Criteria for and identification of licensing and regulatory actions requiring environmental assessments,” of title 10 of the
The proposed action would revise Watts Bar, Units 1 and 2, TS 4.2.1 to increase the limit on the maximum number of TPBARs that can be irradiated in the reactor core in an operating cycle from 1,792 to 2,496. The proposed action would also revise Watts Bar, Units 1 and 2, TS 5.9.6 to add supporting methodologies. Additionally, the proposed action would revise the Watts Bar Dual-Unit Updated Final Safety Analysis Report to modify the source term for design basis accident analyses to allow the core fission product inventory to be calculated using an updated version of the ORIGEN computer code.
The proposed action is in accordance with the licensee's application dated March 20, 2023 (ADAMS Accession No. ML23079A270).
The U.S. Department of Energy (DOE) and TVA are cooperating in a program to produce tritium for the National Security Stockpile by irradiating TPBARs in the Watts Bar, Units 1 and 2, reactor cores. Tritium is produced when the neutrons produced by nuclear fission in the core are absorbed by the lithium target material of the TPBARs. A solid zirconium metal cladding covering the TPBARs (called a “getter”) captures the tritium produced.
This proposed action is needed to support the DOE, National Nuclear Security Administration, National Security Stockpile, in accordance with Public Law (Pub. L.) 106-65. Section 3134 of Public Law 106-65 directs the Secretary of Energy to produce new tritium at Watts Bar. By letters dated July 29, 2016 (ADAMS Accession No. ML16159A057), and May 22, 2019 (ADAMS Accession No. ML18347B330), the NRC approved similar amendments to irradiate up to 1,792 TPBARs in the Watts Bar reactor cores. The EA and FONSI for those licensing actions, completed on June 23, 2016, and February 6, 2019, can be found in ADAMS under Accession Nos. ML16138A045 and ML18332A013, respectively.
The NRC staff has assessed the potential environmental impacts from the proposed increase in the maximum number of TPBARs that can be irradiated in the Watts Bar reactor cores.
The non-radiological and radiological impacts on the environment that may result from the proposed action are summarized as follows.
The proposed action involves no new construction or modification of Watts Bar, Units 1 and 2, operational systems and would have no direct impact on land and water use or water quality, including terrestrial and aquatic biota. There would also be no change in the quality or quantity of non-radiological effluents and no need to modify the nuclear plant's National Pollutant Discharge Elimination System permit. The proposed action would have no effect on air pollutant emissions or ambient air quality. In addition, the proposed action would have no noticeable effect on socioeconomic and environmental justice conditions in the region, and no adverse effect on historic and cultural resources. Therefore, the proposed action would have no significant non-radiological effect on the quality of the human environment.
All nuclear power plants, including Watts Bar, Units 1 and 2, release small amounts of radioactive material to the environment as liquid or gaseous effluents as part of normal operations. The NRC summarizes U.S. nuclear power plant effluent data on its public website [
The Watts Bar units maintain a gaseous waste management system (GWMS) that is designed to process and control the release of radioactive gaseous effluents into the environment in accordance with the requirements of 10 CFR 20.1301, “Dose limits for individual members of the public,” and to ensure consistency with the ALARA dose objectives set forth in appendix I, “Numerical Guides for Design Objectives and Limiting Conditions for Operation to Meet the Criterion `As Low as is Reasonably Achievable' for Radioactive Material in Light-Water-Cooled Nuclear Power Reactor Effluents,” to 10 CFR part 50, “Domestic Licensing of Production and Utilization Facilities.”
As stated in the license amendment request, TVA assumed a core load of 2,496 TPBARs with a permeation rate of 5.0 Ci/TPBAR/year of tritium, which is a conservative source term that bounds the observed and maximum TPBAR tritium permeation rate as seen from historic Watts Bar, Units 1 and 2, tritium production.
To determine whether the resultant gaseous effluents would fall within the requirements of 10 CFR 20.1301, TVA calculated the sum of the ratios of each isotope concentration (C) to its corresponding gaseous Effluent Concentration Limit (ECL, as listed in 10 CFR part 20, “Standards for Protection against Radiation,” appendix B, “Annual Limits on Intake (ALIs) and Derived Air Concentrations (DACs) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sewerage,” table 2, “Effluent Concentration,” column 1). Consistent with the requirements of 10 CFR 20.1302(b)(2)(i), a C/ECL sum of less than 1.0 indicates that the annual average effluent release is within the limits of 10 CFR 20.1301. Tables 4.11-6 and 4.11-7 of the license amendment request demonstrate that TVA's calculated C/ECL sums for gaseous effluent releases at the Watts Bar units from an assumed core load of 2,496 TPBARs for containment purge without filtration would be 0.458 (single unit) and with continuous filtration would be 0.402 (single unit). TVA's calculated C/ECL sums for gaseous effluent releases for both Watts Bar, Units 1 and 2 (dual-unit operation) for containment purge without filtration would be 0.915 and with continuous filtration would be 0.805. Therefore, the licensee demonstrated that the C/ECL ratios are less than 1.0 indicating that gaseous effluent releases from an assumed core load of 2,496 TPBARs would be within the limits of 10 CFR part 20.
To determine whether the gaseous effluent releases would be consistent with the ALARA dose objectives set forth in appendix I to 10 CFR part 50 (which are per-unit numbers), TVA calculated bounding public doses from the applicable plant effluent dose pathways with the tritium release attributable to TPBAR permeability. These doses were based on an assumed core load of 2,496 TPBARs and the methods and assumptions in the current Watts Bar ODCM. TVA calculated that the whole-body dose to a Maximally Exposed Individual from a single Watts Bar unit would be 0.60 millirem (mrem) (0.0060 millisievert (mSv)), which is much less than the whole-body dose objective in appendix I to 10 CFR part 50 of 5.00 mrem (0.05 mSv). TVA also calculated that the organ dose (bone) to the Maximally Exposed Individual from a single Watts Bar unit would be 11.30 mrem (0.113 mSv), which is less than the organ dose objective in appendix I to 10 CFR part 50 of 15.00 mrem (0.15 mSv).
Based on this information, TVA's analyses demonstrate that Watts Bar, Units 1 and 2, can be operated with the proposed maximum core loading of 2,496 TPBARs such that the current GWMS can maintain the gaseous effluents within the Effluent Concentration Limits listed in 10 CFR part 20, appendix B, to meet the dose limit requirements to members of the public in 10 CFR 20.1301, as well as to maintain doses to the public ALARA as per the dose objectives set forth in appendix I to 10 CFR part 50. Therefore, there would be no significant radiological effect on the quality of the human environment from gaseous effluents.
The Watts Bar units' liquid radioactive waste system (LRWS) is used to collect and process radioactive liquid wastes to reduce radioactivity and chemical concentrations to levels acceptable for discharge to the environment. The LRWS maintains sufficient processing capability so that liquid waste may be discharged to the environment below the regulatory limits of 10 CFR 20.1301 and consistent with the ALARA dose objectives in appendix I to 10 CFR part 50. The Watts Bar units share three large storage tanks in the LRWS, which includes a tritiated water storage tank with a capacity of 500,000 gallons. This storage tank supports managing large volume/high tritium concentrations in the RCS for both units. These storage tanks can be used for liquid effluent holdup, dilution, and timing of releases to ensure that regulatory requirements are met. The release of radioactive liquids from the LRWS only occurs after laboratory analysis of the storage tank contents. If the activity is found to be above ODCM limits, the liquid waste streams are returned to the system for further processing by a mobile demineralizer. If the activity is found to be below the ODCM limits, the liquid waste stream is pumped to a discharge pipe where it is monitored for radiation levels and flowrate before it enters the cooling tower blowdown line, where it can ultimately be discharged by permit into the Tennessee River.
To determine whether the liquid effluents from an assumed core load of 2,496 TPBARs would be within the requirements of 10 CFR 20.1301, TVA calculated the sum of the ratios of each isotope concentration (C) to its corresponding liquid Effluent Concentration Limit (ECL, as listed in 10 CFR part 20, appendix B, table 2, column 2). Consistent with the requirements of 10 CFR 20.1302(b)(2)(i), a C/ECL sum of less than 1.0 indicates that the annual average effluent release is within the limits of 10 CFR 20.1301. Tables 4.11-3 through 4.11-5 of the
Table 4.11-4 of the license amendment request demonstrates that TVA's calculated C/ECL sum for liquid effluent releases for a single Watts Bar unit processed through the mobile demineralizer would be 0.471. The operation of both Watts Bar, Units 1 and 2 in this scenario would yield a C/ECL of 0.942. Table 4.11-5 demonstrates that TVA's calculated C/ECL for liquid effluents not processed through the mobile demineralizer, but sufficiently diluted before release, for a single Watts Bar unit would be 0.476. The operation of both Watts Bar, Units 1 and 2 in this scenario would yield a C/ECL of 0.952. Therefore, the licensee demonstrated that the C/ECL ratios are less than 1.0 indicating that liquid effluent releases from an assumed core load of 2,496 TPBARs would be within the limits of 10 CFR part 20.
To determine whether the liquid effluent releases would be consistent with the ALARA dose objectives set forth in appendix I to 10 CFR part 50, TVA calculated bounding public doses from the applicable plant effluent dose pathways with the tritium release attributable to TPBAR permeability. These doses were based on an assumed core load of 2,496 TPBARs and the methods and assumptions in the current Watts Bar ODCM. TVA calculated that the whole-body dose to a Maximally Exposed Individual from liquid effluents from a single Watts Bar unit would be 0.39 mrem (0.0039 mSv), which is much less than the whole-body dose objective in appendix I to 10 CFR part 50 of 3.00 mrem (0.03 mSv). TVA also calculated that the organ dose (liver) to the Maximally Exposed Individual from liquid effluents from a single Watts Bar unit would be 0.50 mrem (0.0050 mSv), which is much less than the organ dose objective in appendix I to 10 CFR part 50 of 10 mrem (0.10 mSv).
Based on this information, TVA's analyses demonstrate that by processing liquid radioactive waste streams through the demineralizer or allowing for proper dilution of the liquid radioactive waste streams, the current LRWS can maintain the liquid effluents within the Effluent Concentration Limits listed in 10 CFR part 20, appendix B, such that Watts Bar, Units 1 and 2, can be operated with the proposed maximum core loading of 2,496 TPBARs. Specifically, doses from liquid effluents would meet the requirements regarding members of the public in 10 CFR 20.1301, as well as maintain the public ALARA dose objectives set forth in appendix I to 10 CFR part 50. Therefore, there would be no significant radiological effect on the quality of the human environment from liquid effluents.
Solid radioactive wastes generated by nuclear power plant operations at Watts Bar, Units 1 and 2, are processed, packaged, and stored onsite until they are shipped offsite for further processing or permanent disposal, or both. The storage areas have restricted access and shielding to reduce radiation rates to plant workers. Solid radioactive wastes are packaged and transported in compliance with the NRC's regulations in 10 CFR parts 20, 61, “Licensing Requirements for Land Disposal of Radioactive Waste,” and 71, “Packaging and Transportation of Radioactive Material,” and the U.S. Department of Transportation's regulations in 49 CFR parts 170 through 179.
The implementation of the proposed action of allowing an increase in the number of TPBARs irradiated from 1,792 to 2,496 per reactor core would increase the activity and volume of solid radioactive waste due to the irradiation of the TPBAR base plates and thimble plugs, which remain after TPBAR consolidation activities. As explained in a previous license amendment request, for the consolidation process, nuclear plant operators remove the irradiated TPBAR assemblies from the spent fuel assemblies, disassemble all the irradiated TPBARs for consolidation, and place them into consolidation canisters. The operators return the loaded consolidation canisters to the spent fuel racks, where they remain until removed from the site (ADAMS Accession No. ML17354B282). Offsite shipment and ultimate disposal would be conducted in accordance with agreements between TVA and the DOE. The disposal volume of the TPBAR base plates and thimble plugs is estimated to be 64 cubic feet (2.7 cubic meters) per year. This additional volume represents a slight increase in the Watts Bar, Units 1 and 2, annual estimated solid waste generation from approximately 32,854 cubic feet (930 cubic meters) per year to 32,918 cubic feet (933 cubic meters) per year. This projected increase in volume can be handled by the existing equipment and plant procedures that control radioactive solid waste handling without modification. The licensee estimated the TPBAR cycle scope of work to evaluate the doses that are expected to workers during the TPBAR consolidation process. The TPBAR cycle scope, estimated at 1,200 person-hours per cycle, includes pre-cycle preparation activities, post-cycle removal and handling activities, TPBAR consolidation and shipping activities, and the processing, packaging, and shipping of irradiated components. This work will occur in an estimated 0.33 mrem/hour radiation field. Therefore, while there would be an increase in solid radioactive waste associated with the implementation of the proposed action, the existing equipment and plant procedures that control radioactive solid waste handling would continue to be used to maintain doses to members of the public and plant workers within applicable dose limits. Therefore, based on this information, there would be no significant radiological effect on the quality of the human environment from solid radioactive waste management.
The number of spent fuel bundles would increase by approximately four to eight per cycle with the implementation of the proposed action. For Watts Bar, Units 1 and 2, spent fuel is currently stored in spent fuel pools on site and in an independent spent fuel storage installation. There would be adequate spent fuel storage available on site; therefore, based on this information, there would be no significant radiological effect on the quality of the human environment from spent fuel generation, storage, and handling.
At Watts Bar, Units 1 and 2, TVA maintains a radiation protection program to monitor radiation levels throughout the nuclear power plant to establish appropriate work controls, training, temporary shielding, and protective equipment requirements so that worker doses remain within the dose limits of 10 CFR part 20, subpart C, “Occupational Dose Limits.” The implementation of the proposed action would affect the quantities of radioactive material generated during plant operations since some tritium permeates through the TPBAR cladding
Separate from the environmental review for this EA, the NRC is reviewing the technical and safety analyses provided in TVA's license amendment request to ensure that the licensee continues to meet NRC regulatory requirements for occupational dose. The results of this safety review will be documented in a safety evaluation that will be made publicly available following the issuance of the EA. If the NRC's safety review determines that the irradiation of 2,496 TPBARs, per cycle, in Watts Bar, Units 1 and 2, complies with the NRC's regulations for occupational dose, then the proposed license amendments would not have a significant radiological effect on workers.
Design-basis accidents are evaluated to ensure that Watts Bar, Units 1 and 2, can withstand the spectrum of postulated accidents without undue hazard to public health and safety and ensure the protection of the environment.
TVA's technical and safety analyses must meet the NRC's regulatory requirements for safe operation. The results of the NRC's safety review will be made publicly available following the issuance of the EA. If this safety review determines that the irradiation of 2,496 TPBARs, per cycle, in the Watts Bar, Units 1 and 2, cores comply with the NRC's regulations, and there is reasonable assurance that public health and safety will not be endangered, then the proposed license amendments would not have a significant radiological effect on the quality of the human environment from design-basis accidents.
Based on the radiological evaluations presented in this EA, except for the impacts associated with occupational radiation doses and design-basis accidents which are being reviewed separately, the implementation of the proposed action would not have a significant radiological effect on the quality of the human environment. If the NRC's safety review determines that 2,496 TPBARs, per cycle, can be safely irradiated in Watts Bar, Units 1 and 2, and there is reasonable assurance that public health and safety will not be endangered, then implementing the proposed license amendments would not have a significant radiological effect on workers and the quality of the human environment.
As an alternative to the proposed action, the NRC considered denial of the proposed action (
There are no unresolved conflicts concerning alternative uses of available resources under the proposed action.
On November 7, 2023, the NRC staff consulted with the State of Tennessee, regarding the environmental impact of the proposed action. The state official had no comments on the EA and FONSI.
TVA requests that the NRC approve amendments that would revise the Watts Bar, Units 1 and 2, TS 4.2.1 and TS 5.9.6 to increase the maximum number of TPBARs and to add supporting methodologies. The proposed amendments would also revise the Watts Bar Dual-Unit Updated Final Safety Analysis Report to modify the source term for design basis accident analyses to allow the core fission product inventory to be calculated using an updated version of the ORIGEN computer code. Based on the review of available information, the NRC determined that the proposed action would not have any significant radiological or non-radiological environmental impacts. Also, the impacts of the “no-action” alternative would be similar to the impacts of the proposed action. The NRC also considered the information provided in the licensee's application and related TVA environmental documents.
This FONSI and related environmental documents are available for public inspection online in the ADAMS Public Documents collection at
The documents identified in the following table are available to interested persons through ADAMS, as indicated.
For the Nuclear Regulatory Commission.
Weeks of February 26, March 4, 11, 18, 25, and April 1, 2024. The schedule for Commission meetings is subject to change on short notice. The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Public.
Members of the public may request to receive the information in these notices electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555, at 301-415-1969, or by email at
There are no meetings scheduled for the week of February 26, 2024.
There are no meetings scheduled for the week of March 4, 2024.
There are no meetings scheduled for the week of March 11, 2024.
There are no meetings scheduled for the week of March 18, 2024.
There are no meetings scheduled for the week of March 25, 2024.
There are no meetings scheduled for the week of April 1, 2024.
For more information or to verify the status of meetings, contact Wesley Held at 301-287-3591 or via email at
The NRC is holding the meetings under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on February 16, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on February 14, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on February 12, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on February 12, 2024, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe BYX Exchange, Inc. (the “Exchange” or “BYX Equities”) proposes to amend its Fees Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fee schedule relating to physical connectivity fees.
By way of background, a physical port is utilized by a Member or non-Member to connect to the Exchange at the data centers where the Exchange's servers are located. The Exchange currently assesses the following physical connectivity fees for Members and non-Members on a monthly basis: $2,500 per physical port for a 1 gigabit (“Gb”) circuit and $7,500 per physical port for a 10 Gb circuit. The Exchange proposes to increase the monthly fee for 10 Gb physical ports from $7,500 to $8,500 per port. The Exchange notes the proposed fee change better enables it to continue to maintain and improve its market technology and services and also notes that the proposed fee amount, even as amended, continues to be in line with, or even lower than, amounts assessed by other exchanges for similar connections.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes the proposed fee change is reasonable as it reflects a moderate increase in physical connectivity fees for 10 Gb physical ports. Further, the current 10 Gb physical port fee has remained unchanged since June 2018.
Additionally, the Exchange believes the proposed fee increase is reasonable in light of recent and anticipated connectivity-related upgrades and changes. For example, the Exchange recently performed switch hardware upgrades. Particularly, the Exchange replaced existing customer access switches with newer models, which the Exchange believes contributes to increased determinism. Additionally, effective April 1, 2024, firms will be able to connect to a new data center (
The Exchange also believes the proposed fee is reasonable as it is still in line with, or even lower than, amounts assessed by other exchanges for similar connections.
The Exchange also believes that the proposed fee change is not unfairly discriminatory because it would be assessed uniformly across all market participants that purchase the physical ports. The Exchange believes increasing the fee for 10 Gb physical ports and charging a higher fee as compared to the 1 Gb physical port is equitable as the 1 Gb physical port is
The Exchange also notes Members and non-Members will continue to choose the method of connectivity based on their specific needs and no broker-dealer is required to become a Member of, let alone connect directly to, the Exchange. There is also no regulatory requirement that any market participant connect to any one particular exchange. Moreover, direct connectivity is not a requirement to participate on the Exchange. The Exchange also believes substitutable products and services are available to market participants, including, among other things, other equities exchanges that a market participant may connect to in lieu of the Exchange, indirect connectivity to the Exchange via a third-party reseller of connectivity, and/or trading of any equities product, such as within the Over-the-Counter (OTC) markets which do not require connectivity to the Exchange. Indeed, there are currently 16 registered equities exchanges that trade equities (12 of which are not affiliated with Cboe), some of which have similar or lower connectivity fees.
As noted above, there is no regulatory requirement that any market participant connect to any one equities exchange, nor that any market participant connect at a particular connection speed or act in a particular capacity on the Exchange, or trade any particular product offered on an exchange. Moreover, membership is not a requirement to participate on the Exchange. Indeed, the Exchange is unaware of any one equities exchange whose membership includes every registered broker-dealer. By way of example, while the Exchange has 110 members that trade equities, Cboe EDGX has 124 members that trade equities, Cboe EDGA has 103 members and Cboe BZX has 132 members. There is also no firm that is a Member of BYX Equities only. Further, based on publicly available information regarding a sample of the Exchange's competitors, NYSE has 143 members,
A market participant may also submit orders to the Exchange via a Member broker or a third-party reseller of connectivity. The Exchange notes that third-party non-Members also resell exchange connectivity. This indirect connectivity is another viable alternative for market participants to trade on the Exchange without connecting directly to the Exchange (and thus not pay the Exchange connectivity fees), which alternative is already being used by non-Members and further constrains the price that the Exchange is able to charge for connectivity to its Exchange.
Accordingly, the vigorous competition among national securities exchanges provides many alternatives for firms to voluntarily decide whether direct connectivity to the Exchange is appropriate and worthwhile, and as noted above, no broker-dealer is required to become a Member of the Exchange, let alone connect directly to it. In the event that a market participant views the Exchange's proposed fee change as more or less attractive than the competition, that market participant can choose to connect to the Exchange indirectly or may choose not to connect to that exchange and connect instead to one or more of the other 12 non-Cboe affiliated equities markets. Indeed, market participants are free to choose which exchange or reseller to use to satisfy their business needs. Moreover, if the Exchange charges excessive fees, it may stand to lose not only connectivity revenues but also revenues associated with the execution of orders routed to it, and, to the extent applicable, market data revenues. The Exchange believes that this competitive dynamic imposes powerful restraints on the ability of any exchange to charge unreasonable fees for connectivity. Notwithstanding the foregoing, the Exchange still believes that the proposed fee increase is reasonable, equitably allocated and not unfairly discriminatory, even for market participants that determine to connect directly to the Exchange for business purposes, as those business reasons should presumably result in revenue capable of covering the proposed fee.
The Exchange lastly notes that it is not required by the Exchange Act, nor any other rule or regulation, to undertake a cost-of-service or rate-making approach with respect to fee proposals. Moreover, Congress's intent in enacting the 1975 Amendments to the Act was to enable competition—rather than government order—to determine prices. The principal purpose of the amendments was to facilitate the creation of a national market system for the trading of securities. Congress intended that this “national market system evolve through the interplay of
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 proposed fee change will not impact intramarket competition because it will apply to all similarly situated Members equally (
The Exchange's proposed fee is also still lower than some fees for similar connectivity on other exchanges and therefore may stimulate intermarket competition by attracting additional firms to connect to the Exchange or at least should not deter interested participants from connecting directly to the Exchange. Further, if the changes proposed herein are unattractive to market participants, the Exchange can, and likely will, see a decline in connectivity via 10 Gb physical ports as a result. The Exchange operates in a highly competitive market in which market participants can determine whether or not to connect directly to the Exchange based on the value received compared to the cost of doing so. Indeed, market participants have numerous alternative venues that they may participate on and direct their order flow, including 12 non-Cboe affiliated equities markets, as well as off-exchange venues, where competitive products are available for trading. Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX Equities”) proposes to amend its Fees Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fee schedule relating to physical connectivity fees.
By way of background, a physical port is utilized by a Member or non-Member to connect to the Exchange at the data centers where the Exchange's servers are located. The Exchange currently assesses the following physical connectivity fees for Members and non-Members on a monthly basis: $2,500 per physical port for a 1 gigabit (“Gb”) circuit and $7,500 per physical port for a 10 Gb circuit. The Exchange proposes to increase the monthly fee for 10 Gb physical ports from $7,500 to $8,500 per port. The Exchange notes the proposed fee change better enables it to continue to maintain and improve its market technology and services and also notes that the proposed fee amount, even as amended, continues to be in line with, or even lower than, amounts assessed by other exchanges for similar connections.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes the proposed fee change is reasonable as it reflects a moderate increase in physical connectivity fees for 10 Gb physical ports. Further, the current 10 Gb physical port fee has remained unchanged since June 2018.
Additionally, the Exchange believes the proposed fee increase is reasonable in light of recent and anticipated connectivity-related upgrades and changes. For example, the Exchange recently performed switch hardware upgrades. Particularly, the Exchange replaced existing customer access switches with newer models, which the Exchange believes contributes to increased determinism. Additionally, effective April 1, 2024, firms will be able to connect to a new data center (
The Exchange also believes the proposed fee is reasonable as it is still in line with, or even lower than, amounts assessed by other exchanges for similar connections.
The Exchange also believes that the proposed fee change is not unfairly discriminatory because it would be assessed uniformly across all market participants that purchase the physical ports. The Exchange believes increasing the fee for 10 Gb physical ports and charging a higher fee as compared to the 1 Gb physical port is equitable as the 1 Gb physical port is 1/10th the size of the 10 Gb physical port and therefore does not offer access to many of the products and services offered by the Exchange (
The Exchange also notes Members and non-Members will continue to choose the method of connectivity based on their specific needs and no broker-dealer is required to become a Member of, let alone connect directly to, the Exchange. There is also no regulatory requirement that any market participant connect to any one particular exchange. Moreover, direct connectivity is not a requirement to participate on the Exchange. The Exchange also believes substitutable products and services are available to market participants, including, among other things, other equities exchanges that a market participant may connect to in lieu of the Exchange, indirect connectivity to the Exchange via a third-party reseller of connectivity, and/or trading of any equities product, such as within the Over-the-Counter (OTC) markets which do not require connectivity to the Exchange. Indeed, there are currently 16 registered equities exchanges that trade equities (12 of which are not affiliated with Cboe), some of which have similar or lower connectivity fees.
As noted above, there is no regulatory requirement that any market participant connect to any one equities exchange, nor that any market participant connect at a particular connection speed or act in a particular capacity on the Exchange, or trade any particular product offered on an exchange. Moreover, membership is not a requirement to participate on the Exchange. Indeed, the Exchange is unaware of any one equities exchange whose membership includes every registered broker-dealer. By way of example, while the Exchange has 124 members that trade equities, Cboe BZX has 132 members that trade equities, Cboe EDGA has 103 members and Cboe BYX has 110 members. There is also no firm that is a Member of EDGX Equities only. Further, based on publicly available information regarding a sample of the Exchange's competitors, NYSE has 143 members,
A market participant may also submit orders to the Exchange via a Member broker or a third-party reseller of connectivity. The Exchange notes that third-party non-Members also resell exchange connectivity. This indirect connectivity is another viable alternative for market participants to trade on the Exchange without connecting directly to the Exchange (and thus not pay the Exchange connectivity fees), which alternative is already being used by non-Members and further constrains the price that the Exchange is able to charge for connectivity to its Exchange.
Accordingly, the vigorous competition among national securities exchanges provides many alternatives for firms to voluntarily decide whether direct connectivity to the Exchange is appropriate and worthwhile, and as noted above, no broker-dealer is required to become a Member of the Exchange, let alone connect directly to it. In the event that a market participant views the Exchange's proposed fee change as more or less attractive than the competition, that market participant can choose to connect to the Exchange indirectly or may choose not to connect to that exchange and connect instead to one or more of the other 12 non-Cboe affiliated equities markets. Indeed, market participants are free to choose which exchange or reseller to use to satisfy their business needs. Moreover, if the Exchange charges excessive fees, it may stand to lose not only connectivity revenues but also revenues associated with the execution of orders routed to it, and, to the extent applicable, market data revenues. The Exchange believes that this competitive dynamic imposes powerful restraints on the ability of any exchange to charge unreasonable fees for connectivity. Notwithstanding the foregoing, the Exchange still believes that the proposed fee increase is reasonable, equitably allocated and not unfairly discriminatory, even for market participants that determine to connect directly to the Exchange for business purposes, as those business reasons should presumably result in revenue capable of covering the proposed fee.
The Exchange lastly notes that it is not required by the Exchange Act, nor any other rule or regulation, to undertake a cost-of-service or rate-making approach with respect to fee proposals. Moreover, Congress's intent in enacting the 1975 Amendments to the Act was to enable competition—rather than government order—to determine prices. The principal purpose of the amendments was to facilitate the creation of a national market system for the trading of securities. Congress intended that this “national market system evolve through the interplay of
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 proposed fee change will not impact intramarket competition because it will apply to all similarly situated Members equally (i.e., all market participants that choose to purchase the 10 Gb physical port). Additionally, the Exchange does not believe its proposed pricing will impose a barrier to entry to smaller participants and notes that its proposed connectivity pricing is associated with relative usage of the various market participants. For example, market participants with modest capacity needs can continue to buy the less expensive 1 Gb physical port (which cost is not changing) or may choose to obtain access via a third-party re-seller. While
The Exchange's proposed fee is also still lower than some fees for similar connectivity on other exchanges and therefore may stimulate intermarket competition by attracting additional firms to connect to the Exchange or at least should not deter interested participants from connecting directly to the Exchange. Further, if the changes proposed herein are unattractive to market participants, the Exchange can, and likely will, see a decline in connectivity via 10 Gb physical ports as a result. The Exchange operates in a highly competitive market in which market participants can determine whether or not to connect directly to the Exchange based on the value received compared to the cost of doing so. Indeed, market participants have numerous alternative venues that they may participate on and direct their order flow, including 12 non-Cboe affiliated equities markets, as well as off-exchange venues, where competitive products are available for trading. Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend the MIAX Options Exchange Fee Schedule (the “Fee Schedule”) regarding the Open-Close Report to allow subscribers who purchase Intra-Day Open Close data the ability to request End-of-Day Open-Close data for no additional charge.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange offers a data product known as the Open-Close Report that is available for purchase by Exchange Members
By way of background, the Exchange offers two versions of the Open-Close Report, an end-of-day summary and intra-day report. The End-of-Day version is a volume summary of trading activity on the Exchange at the option level by origin (Priority Customer,
The Intra-Day Open-Close Report provides similar information to that of the End-of-Day version but is produced and updated every 10 minutes during the trading day. Data is captured in “snapshots” taken every 10 minutes throughout the trading day and is available to subscribers within five minutes of the conclusion of each 10-minute period. Each update represents the aggregate data captured from the current “snapshot” and all previous “snapshots.” The Intra-Day Open-Close data provides a volume summary of trading activity on the Exchange at the option level by origin (Priority Customer, Non-Priority Customer, Firm, Broker-Dealer, and Market Maker), side of the market (buy or sell), and transaction type (opening or closing). All volume is further broken down into trade size buckets (less than 100 contracts, 100-199 contracts, greater than 199 contracts).
The Exchange assesses a monthly fee of $600 per month for subscribing to the End-of-Day summary Open-Close Report and $2,000 per month for subscribing to the Intra-Day Open-Close Report. The Exchange also assesses a fee of $500 per request per month for ad-hoc requests for historical End-of-Day Open-Close data. An ad-hoc request for historical End-of-Day Open-Close data can be for any number of months beginning with June 2021 for which the data is available. The Exchange also assesses a fee of $1,000 per request per month for ad-hoc requests for historical Intra-Day Open-Close data. An ad-hoc request for historical Intra-Day Open-Close data can be for any number of months beginning with January 2013 for which the data is available.
The Exchange now proposes to amend fees for the Open-Close Report to allow subscribers who purchase Intra-Day Open Close data the ability to request End-of-Day Open-Close data for no additional charge. This proposal is akin to a fee break for subscribers because it would decrease the cost to purchase a broader scope of Open-Close Report data from the Exchange by allowing Intra-Day subscribers to request End-of-Day data for no additional charge Specifically, the Exchange proposes to allow subscribers who purchase an Intra-Day monthly subscription to request an End-of-Day monthly subscription for no additional charge. Similarly, the Exchange proposes to also allow subscribers who purchase an Intra-Day Ad-hoc Request (historical data) to submit an End-of-Day Ad-hoc Request (historical data) for the same date or date range for no additional charge upon request. The Exchange proposes to codify these proposed changes under new footnotes a. and b. under Section 6 of its Fee Schedule.
The Open-Close Report remains a completely voluntary product. The Exchange is not required by any rule or regulation to make this data available and potential subscribers may purchase it only if they voluntarily choose to do so. The Exchange notes that other exchanges offer a similar data product.
The proposed changes are immediately effective.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. Particularly, the Open-Close Report further broadens the availability of U.S. option market data to investors consistent with the principles of Regulation NMS. The data product also promotes increased transparency through the dissemination of the Open-Close Report. Particularly, information regarding opening and closing activity across different option series during the trading day may indicate investor sentiment, which may allow market participants to make better informed trading decisions throughout the day. Subscribers to the data may also be able to enhance their ability to analyze option trade and volume data and create and test trading models and analytical strategies. The Exchange believes the Open-Close Report provides a valuable tool that subscribers can use to gain comprehensive insight into the trading activity in a particular series, but also emphasizes such data is not necessary for trading and completely optional. Moreover, other exchanges offer a similar data product.
The Exchange operates in a highly competitive environment. Indeed, there are currently 16 registered options exchanges that trade options. As of January 30, 2024, based on publicly available information, no single options exchange has more than approximately 14-15% of the equity options market share and currently the Exchange represents only approximately 6.49% of the equity options market share for the month of January 2024.
The Exchange believes its proposal proposes to amend fees for the Open-Close Report to allow subscribers who purchase Intra-Day Open Close data the ability to request End-of-Day Open-Close data for no additional charge promotes just and equitable principles of trade because it enables subscribers to request additional Open-Close data for no additional charge. The End-of-Day version is a volume summary of trading activity on the Exchange, and essentially contains the same data as is provided in the final Intra-Day version at the end of the trading day and it is, therefore, reasonable and equitable to provide that data to Intra-Day subscribers for no additional charge. The Exchange believes the proposal is reasonable as the Exchange is simply making additional Open-Close data available for no additional charge, and fees for the Open-Close Report continue to be both modest and similar to, or even lower than, the fees assessed by other exchanges that provide similar data products.
Lastly, the Exchange believes the proposal is not unfairly discriminatory as it would apply equally to all users who choose to purchase or receive such data.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange believes that the proposal will promote competition by permitting the
Furthermore, the Exchange operates in a highly competitive environment, and its ability to price Open-Close Report data is constrained by competition among exchanges that offer Open-Close report data to their customers. The Exchange notes that there are currently a number of similar products available to market participants and investors. Multiple other U.S. options exchanges offer Open-Close report data, which the Exchange must consider in its pricing discipline in order to compete for the market data.
The Exchange also does not believe the proposal would cause any unnecessary or inappropriate burden on intermarket competition as other exchanges are free to introduce their own comparable data product and lower their prices for Open-Close Report data to better compete with the Exchange's offering. The Exchange does not believe the proposed rule change would cause any unnecessary or inappropriate burden on intramarket competition. Particularly, the proposal would apply uniformly to any market participant. The proposal allows any interested Member or non-Member to request Open-Close Report data based on their business needs.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
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 Investor Advisory Committee will hold a public meeting on Thursday, March 7, 2024. The meeting will begin at 10:00 a.m. (ET) and will be open to the public.
The meeting will be conducted in-person at 100 F Street NE, Washington, DC 20549 in the Multipurpose Room, and by remote
This Sunshine Act notice is being issued because a majority of the Commission may attend the meeting.
The public is invited to submit written statements to the Committee. Written statements should be received on or before March 6, 2024.
Written statements may be submitted by any of the following methods:
• Use the Commission's internet submission form (
• Send an email message to
• Send paper statements to Vanessa A. Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
The Commission will post all statements on the Commission's website. Statements also will be available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE, Room 1503, Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Operating conditions may limit access to the Commission's Public Reference Room. Do not include personal information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright.
The agenda for the meeting includes: welcome and opening remarks; approval of previous meeting minutes; a panel discussing the U.S. Securities and Exchange Commission's proposals to improve equity market structure; a panel examining the use of materiality as a disclosure standard—can the definition be improved to better serve investors; a discussion of a recommendation regarding digital engagement practices; subcommittee and working group reports; and a non-public administrative session.
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 (“Act”),
Cboe BZX Exchange, Inc. (the “Exchange” or “BZX Equities”) proposes to amend its Fees Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fee schedule relating to physical connectivity fees.
By way of background, a physical port is utilized by a Member or non-Member to connect to the Exchange at the data centers where the Exchange's servers are located. The Exchange currently assesses the following physical connectivity fees for Members and non-Members on a monthly basis: $2,500 per physical port for a 1 gigabit (“Gb”) circuit and $7,500 per physical port for a 10 Gb circuit. The Exchange proposes to increase the monthly fee for 10 Gb physical ports from $7,500 to $8,500 per port. The Exchange notes the proposed fee change better enables it to continue to maintain and improve its market technology and services and also notes that the proposed fee amount, even as amended, continues to be in line with, or even lower than, amounts assessed by other exchanges for similar connections.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes the proposed fee change is reasonable as it reflects a moderate increase in physical connectivity fees for 10 Gb physical ports. Further, the current 10 Gb physical port fee has remained unchanged since June 2018.
Additionally, the Exchange believes the proposed fee increase is reasonable in light of recent and anticipated connectivity-related upgrades and changes. For example, the Exchange recently performed switch hardware upgrades. Particularly, the Exchange replaced existing customer access switches with newer models, which the Exchange believes contributes to increased determinism. Additionally, effective April 1, 2024, firms will be able to connect to a new data center (
The Exchange also believes the proposed fee is reasonable as it is still in line with, or even lower than, amounts assessed by other exchanges for similar connections.
The Exchange also believes that the proposed fee change is not unfairly discriminatory because it would be assessed uniformly across all market participants that purchase the physical ports. The Exchange believes increasing the fee for 10 Gb physical ports and charging a higher fee as compared to the 1 Gb physical port is equitable as the 1 Gb physical port is 1/10th the size of the 10 Gb physical port and therefore does not offer access to many of the products and services offered by the Exchange (
The Exchange also notes Members and non-Members will continue to choose the method of connectivity based on their specific needs and no broker-dealer is required to become a Member of, let alone connect directly to, the Exchange. There is also no regulatory requirement that any market participant connect to any one particular exchange. Moreover, direct connectivity is not a requirement to participate on the Exchange. The Exchange also believes substitutable products and services are available to market participants, including, among other things, other equities exchanges that a market participant may connect to in lieu of the Exchange, indirect connectivity to the Exchange via a third-party reseller of connectivity, and/or trading of any equities product, such as within the Over-the-Counter (OTC) markets which do not require connectivity to the Exchange. Indeed, there are currently 16 registered equities exchanges that trade equities (12 of which are not affiliated with Cboe), some of which have similar or lower connectivity fees.
As noted above, there is no regulatory requirement that any market participant connect to any one equities exchange, nor that any market participant connect at a particular connection speed or act in a particular capacity on the Exchange, or trade any particular product offered on an exchange. Moreover, membership is not a requirement to participate on the Exchange. Indeed, the Exchange is unaware of any one equities exchange whose membership includes every registered broker-dealer. By way of example, while the Exchange has 132 members that trade equities, Cboe EDGX has 124 members that trade equities, Cboe EDGA has 103 members and Cboe BYX has 110 members. There is also no firm that is a Member of BZX Equities only. Further, based on publicly available information regarding a sample of the Exchange's competitors, NYSE has 143 members,
A market participant may also submit orders to the Exchange via a Member broker or a third-party reseller of connectivity. The Exchange notes that third-party non-Members also resell exchange connectivity. This indirect connectivity is another viable alternative for market participants to trade on the Exchange without connecting directly to the Exchange (and thus not pay the Exchange connectivity fees), which alternative is already being used by non-Members and further constrains the price that the Exchange is able to charge for connectivity to its Exchange.
Accordingly, the vigorous competition among national securities exchanges provides many alternatives for firms to voluntarily decide whether direct connectivity to the Exchange is appropriate and worthwhile, and as noted above, no broker-dealer is required to become a Member of the Exchange, let alone connect directly to it. In the event that a market participant views the Exchange's proposed fee change as more or less attractive than the competition, that market participant can choose to connect to the Exchange indirectly or may choose not to connect to that exchange and connect instead to one or more of the other 12 non-Cboe affiliated equities markets. Indeed, market participants are free to choose which exchange or reseller to use to satisfy their business needs. Moreover, if the Exchange charges excessive fees, it may stand to lose not only connectivity revenues but also revenues associated with the execution of orders routed to it, and, to the extent applicable, market data revenues. The Exchange believes that this competitive dynamic imposes powerful restraints on the ability of any exchange to charge unreasonable fees for connectivity. Notwithstanding the foregoing, the Exchange still believes that the proposed fee increase is reasonable, equitably allocated and not unfairly discriminatory, even for market participants that determine to connect directly to the Exchange for business purposes, as those business reasons should presumably result in revenue capable of covering the proposed fee.
The Exchange lastly notes that it is not required by the Exchange Act, nor any other rule or regulation, to undertake a cost-of-service or rate-making approach with respect to fee proposals. Moreover, Congress's intent in enacting the 1975 Amendments to the Act was to enable competition—rather than government order—to determine prices. The principal purpose of the amendments was to facilitate the creation of a national market system for the trading of securities. Congress intended that this “national market system evolve through the interplay of
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 proposed fee change will not impact intramarket competition because it will apply to all similarly situated Members equally (i.e., all market participants that choose to purchase the 10 Gb physical port). Additionally, the Exchange does not believe its proposed pricing will impose a barrier to entry to smaller participants and notes that its proposed connectivity pricing is associated with relative usage of the various market participants. For example, market participants with modest capacity needs can continue to buy the less expensive 1 Gb physical port (which cost is not changing) or may choose to obtain access via a third-party re-seller. While pricing may be increased for the larger capacity physical ports, such options provide far more capacity and are purchased by those that consume more resources from the network. Accordingly, the proposed connectivity fees do not favor certain categories of market participants in a manner that would impose a burden on competition; rather, the allocation reflects the network resources consumed by the various size of market participants—lowest bandwidth consuming members pay the least, and highest bandwidth consuming members pays the most.
The Exchange's proposed fee is also still lower than some fees for similar connectivity on other exchanges and therefore may stimulate intermarket competition by attracting additional firms to connect to the Exchange or at least should not deter interested participants from connecting directly to the Exchange. Further, if the changes proposed herein are unattractive to market participants, the Exchange can, and likely will, see a decline in connectivity via 10 Gb physical ports as a result. The Exchange operates in a highly competitive market in which market participants can determine whether or not to connect directly to the Exchange based on the value received compared to the cost of doing so. Indeed, market participants have numerous alternative venues that they may participate on and direct their order flow, including 12 non-Cboe affiliated equities markets, as well as off-exchange venues, where competitive products are available for trading. Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 12, 2023, The Nasdaq Stock Market LLC (“Nasdaq” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On September 12, 2023, pursuant to Section 19(b)(2) of the Act,
On January 22, 2024, the Exchange filed Amendment No. 2 to the proposed rule change which amended and replaced the proposed rule change, as
On January 26, 2024, the Commission extended the time period for approving or disapproving the proposal to March 27, 2024.
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.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend the Exchange's Rules to create a new, limited membership class for those underwriters that are FINRA members seeking only to perform underwriting activity as the principal underwriter on the Exchange
Specifically, the Exchange proposes to amend its General Rules to: (i) add a definition of “Limited Underwriting Member” to General 1, Section 1; and (ii) add a new, limited underwriting membership to General 3, Section 1031, as described below. The Exchange proposes to amend Equity 7, Section 10 to exempt Limited Underwriting Members from being assessed a trading rights fee. In addition, the Exchange proposes to amend Rule 5210 of the Listing Rules to impose a requirement that each Company applying for initial listing in connection with a transaction involving an underwriter have a principal underwriter that is a Member or Limited Underwriting Member.
In the fall of 2022, Nasdaq observed instances of unusually high price spikes immediately following the pricing of certain initial public offerings (IPOs) on the Exchange and other national securities exchanges, mostly with respect to small-cap companies whose offerings were less than $25 million. In many instances, the IPO securities that were the subject of these extreme price spikes then experienced equally dramatic price declines to a level at or below the offering price. These extreme price spikes may occur in the opening trade on an exchange, or in continuous trading on the day of, or days immediately following, the listing.
Underwriters play a critical role as gatekeepers to the capital markets in connection with the trading of newly issued securities. Unusual price volatility following IPOs of certain small-cap issuers highlights the essential role underwriters play. Nasdaq relies on underwriters to select the selling syndicate and ensure that the shares are placed in a way that is reasonably designed to allow liquid trading, consistent with Nasdaq's listing requirements, and the successful introduction of the company to the marketplace. In a recent Equity Regulatory Alert,
Nasdaq members, as well as the members of other self-regulatory organizations, that underwrite IPOs, and that play other roles in the offering process, should expect a heightened focus when an IPO experiences unusual price movements. Nasdaq Regulation will continue to investigate to determine whether such members have complied with applicable rules designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and to protect investors
Notwithstanding the important role of underwriters, Nasdaq does not currently require underwriters of companies that are going public on the Exchange to be Members of the Exchange. As such, Nasdaq does not have authority to require responses to investigative inquiries or to enforce its Rules directly against non-member underwriters.
Nasdaq proposes creating a new, limited membership class and requiring underwriters involved in Nasdaq-listed IPOs to be Members or Limited Underwriting Members in order to serve as a principal underwriter of an IPO on the Exchange. By creating a new, limited membership class, Nasdaq would provide those firms seeking only to perform principal underwriting activity on the Exchange (and not seeking access to trade via the Nasdaq Market Center) the option of selecting a membership that is less burdensome (
The proposed rule change primarily impacts membership rules and other non-listing rules, which would apply to the underwriters themselves. However, as part of the proposal, Nasdaq would impose a new requirement in its Listing Rules at Rule 5210(m), requiring each Company applying for initial listing in connection with a transaction involving an underwriter to have a principal underwriter that is a Member or Limited Underwriting Member of Nasdaq. In proposed Rule 5210(m), the Exchange would also specify that “principal underwriter” shall have the same definition used in Rule 405 promulgated under the Securities Act.
Within its General Rules, the Exchange proposes to amend General 1 (General Provisions) and General 3 (Membership and Access).
The Exchange proposes to add the definition of “Limited Underwriting Member” to General 1, Section 1 (Definitions). As noted above, the Exchange proposes to define Limited Underwriting Member to mean a broker or dealer admitted to limited underwriting membership in Nasdaq.
The Exchange proposes to add the new category of membership to General 3, Section 1031, within which the Exchange proposes to include information about persons eligible to become Limited Underwriting Members, Limited Underwriting Member access to the Exchange, and rules applicable to Limited Underwriting Members.
The Exchange would specify in General 3, Section 1031(a), that any registered broker or dealer shall be eligible for limited underwriting membership in the Exchange, except such registered brokers or dealers as are excluded under paragraph (b) of Rule 1002.
The Exchange proposes to state, in General 3, Section 1031(b) that (i) a limited underwriting membership provides no rights to transact on the Exchange and (ii) a limited underwriting membership is solely to allow a firm that is not otherwise a Member to serve as a principal underwriter for a Company seeking to list on the Exchange, pursuant to Rule 5210(m).
Nasdaq proposes applying a limited ruleset to this newly proposed limited membership class.
The Exchange acknowledges that there are additional, existing Rules that it could propose to apply to Limited Underwriting Members. However, the Exchange is proposing to apply only a narrow ruleset as the Exchange does not intend to create comprehensive rules to regulate underwriting activity. Rather, the Exchange proposes to apply a limited ruleset, primarily to provide the Exchange with the authority to require information directly from the Limited Underwriting Members and enhance its tools for oversight with respect to the role the underwriter plays in connection with a company listing on the Exchange, as described below. Limited Underwriting Members would be subject to FINRA's rules, including its rules that substantively regulate underwriting activity. Nasdaq would consider whether additional existing Rules that are not proposed in the limited ruleset for Limited Underwriting Members or new Rules are warranted as the Exchange gains more experience in applying the rules proposed herein. As the Exchange adopts new Rules over time, it also would consider whether to apply such Rules to Limited Underwriting Members.
The Exchange proposes to apply General 1 to Limited Underwriting Members because General 1 provides defined terms that would be applicable to Limited Underwriting Members and, as explained above, the proposed rule change would also add a definition (“Limited Underwriting Member”) to General 1.
The Exchange proposes to apply General 2 (with the exception of Sections 6(a) and 22) to Limited Underwriting Members because General 2 relates to organization and administration including requirements surrounding fees, limitations on affiliations, and a requirement for an executive representative, among other obligations. The Exchange proposes to specifically exclude General 2, Sections 6(a) and Section 22. General 2, Section 6(a) states that General Equity and Options Rules and Equity Rules shall apply to all members and persons associated with a member, which is not accurate in the case of Limited Underwriting Members. General 2, Section 22 relates to Sponsored Participants and client access to the Nasdaq Market Center via a Member, which is not applicable to underwriting activity.
The Exchange also proposes to subject Limited Underwriting Members to General 3 (with the exception of Section 1032) because General 3 contains membership rules, including an obligation to follow specified procedures for applying to be a member, making changes to membership, or terminating membership. The Exchange proposes to specifically exclude General 3, Section 1032 because such section includes requirements related to Nasdaq Market Center Participant registration. This section is inapplicable to Limited Underwriting Members because they are not permitted to transact on the Nasdaq Market Center. As described herein, the proposed rule change would also add additional details regarding the limited underwriting membership to General 3, Rule 1031.
The Exchange believes it is critical to subject Limited Underwriting Members to General 5 (with the exception of Rules 8211 and 9557), which contains the Exchange's disciplinary rules.
The Exchange also believes it is important to subject Limited Underwriting Members to General 9, Section 1 which includes general standards by which Members must abide. Specifically, of importance, General 9, Section 1(a) requires Members to observe just and equitable principles of trade. General 9, Sections 20 and 21 require Members to establish and maintain a system to supervise the activities of each registered representative and associated person that is reasonably designed to achieve compliance with applicable securities laws and regulations and with applicable Nasdaq rules, and to identify principles who must establish, maintain, and enforce a system of supervisory control policies and procedures that, among other things, tests that the member's supervisory procedures are reasonably designed with respect to the activities of the member and its associated persons, to achieve compliance with applicable securities laws and regulations, and with applicable Nasdaq rules. The Exchange believes it is important to apply these provisions on supervision as it would provide the Exchange with authority to assess whether a Limited Underwriting Member has an adequate supervisory system and written supervisory procedures in place. With the exception of General 9, Section 1, Section 20, and Section 21, the Exchange does not propose to apply other sections of General 9 to Limited Underwriting Members at this time. Although the Exchange acknowledges that certain other sections of General 9 could be applied to underwriters, the Exchange is targeting limited inclusion of those Rules it deems critical. Further, many of the standards in General 9 are FINRA rules that are incorporated by reference into the Exchange's Rules. Limited Underwriting Members would therefore be subject to such FINRA rules by virtue of their FINRA membership.
Finally, the Exchange proposes to include Equity 7, Section 10 to Limited Underwriting Members because this section includes the membership and application fees applicable to Limited Underwriting Members. The Exchange proposes to avoid applying all those Exchange rules not specified in proposed General 3, Section 1031(c)(1) to Limited Underwriting Members in an effort to impose minimal burden on Limited Underwriting Members, while still allowing the Exchange to have regulatory authority over such members. Furthermore, the Exchange believes that the Exchange's rules that Limited Underwriting Members would not be subject to under the proposal primarily relate to trading activity and are, therefore, not relevant to the activities of Limited Underwriting Members. As noted above, Nasdaq would consider whether additional existing Rules that are not proposed in the limited ruleset for Limited Underwriting Members or new Rules are warranted as the Exchange gains more experience in applying the rules proposed herein.
The Exchange proposes to include language in General 3, Section 1031(c)(1) providing that, for purposes of interpreting and applying the rules to Limited Underwriting Members, references to “Member,” “Members,” or “membership” shall be functionally equivalent to “Limited Underwriting Member,” “Limited Underwriting Members,” or “limited underwriting membership” respectively. The Exchange also proposes to include a requirement, in General 3, Section 1031(c)(2), that Limited Underwriting Members shall at all times be members of FINRA and associated persons of Limited Underwriting Members shall at all times be properly qualified and registered under FINRA rules.
The Exchange proposes to exempt Limited Underwriting Members from the trading rights fee of $1,250 per month that is normally charged to Members because such Limited Underwriting Members would not be eligible to trade on the Exchange. Accordingly, the Exchange proposes to add language to Equity 7, Section 10(a) to specify that Limited Underwriting Members would not be charged the monthly trading rights fee. Limited Underwriting Members would be
As noted above, Nasdaq acknowledges that additional Rules could theoretically be applied to Limited Underwriting Members. However, Nasdaq proposes to apply the limited ruleset for the reasons described above. In addition to the Rules discussed above, the Exchange has not proposed to apply the following Rules to Limited Underwriting Members at this time: General 4; General 6; General 7; General 8; Equity Rules (with the exception of Equity 7, Section 10); and Options Rules. General 4 requires certain categories of persons associated with members to register with the Exchange. Because these categories do not relate to underwriting, the Exchange does not propose to apply General 4 to Limited Underwriting Members. However, as noted above, the Exchange would require all Limited Underwriting Members to be FINRA members and associated persons of Limited Underwriting Members to be properly qualified and registered under FINRA rules. Limited Underwriting Members and their associated persons would be subject to FINRA's registration and qualification rules,
The Exchange would designate the proposed changes to be operative 60 days after publication of the Commission's approval order of SR-NASDAQ-2023-022, as amended, in the
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes that the proposed rule change is not designed to permit unfair discrimination between customers, issuers, brokers and dealers, consistent with Section 6(b)(5) of the Act.
Finally, Nasdaq believes that its proposal to impose certain fees on Limited Underwriting Members is consistent with Section 6(b) of the Act, in general, and furthers the objectives of Sections 6(b)(4) and 6(b)(5) of the Act, in particular, in that it provides for the equitable allocation of reasonable dues, fees and other charges among members and issuers and other persons using any facility, and is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers. The Exchange believes that its proposal to charge the $2,000 application fee and $4,000 yearly membership fee but not charge the $1,250 monthly trading rights fee is reasonable, equitable and not unfairly discriminatory. The Exchange would apply fees that are already in existence and the Exchange believes such fees reflect the value of services it provides its applicants and membership. By charging Limited Underwriting Members the same application and yearly membership fee as Members, the Exchange believes that it would be treating the membership equitably. Further, the Exchange believes it is reasonable and equitable to exempt Limited Underwriting Members from the monthly trading rights fee because such members would not have access to trade on the Exchange. The Exchange believes that the fee proposal is not designed to permit unfair discrimination between Exchange members because the fees would be applied equally to all similarly situated members.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. As noted above, the proposed changes to the Listing Rules will apply equally to all similarly situated companies applying for initial listing in connection with a transaction involving an underwriter on the Exchange. Likewise, the proposed changes to the General and Equity Rules, including to the membership rules, will apply equally to all similarly situated Applicants and Members and they will confer no relative advantage or disadvantage upon any category of Exchange Applicant or Member. Although the Exchange proposes to subject Limited Underwriting Members to a limited set of rules, the limited underwriting membership does not confer the same benefits as a standard Exchange membership. Namely, a Limited Underwriting Member would not be permitted to transact on the Nasdaq Market Center. Therefore, applying a limited ruleset to Limited Underwriting Members is justified. All Limited Underwriting Members would be subject to the same specified rules, as noted above. Moreover, the Exchange does not expect that its proposal will have an adverse impact on competition among exchanges for members. The Exchange believes the proposed rule changes, overall, will strengthen the Exchange's ability to carry out its role and responsibilities as a self-regulatory organization and deter potential violative conduct. As such, the Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether Amendment No. 2 to the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe EDGA Exchange, Inc. (the “Exchange” or “EDGA”) proposes to amend its Fees Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fee schedule relating to physical connectivity fees.
By way of background, a physical port is utilized by a Member or non-Member to connect to the Exchange at the data centers where the Exchange's servers are located. The Exchange currently assesses the following physical connectivity fees for Members and non-Members on a monthly basis: $2,500 per physical port for a 1 gigabit (“Gb”) circuit and $7,500 per physical port for a 10 Gb circuit. The Exchange proposes to increase the monthly fee for 10 Gb physical ports from $7,500 to $8,500 per port. The Exchange notes the proposed fee change better enables it to continue to maintain and improve its market technology and services and also notes that the proposed fee amount, even as amended, continues to be in line with, or even lower than, amounts assessed by other exchanges for similar connections.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes the proposed fee change is reasonable as it reflects a moderate increase in physical connectivity fees for 10 Gb physical ports. Further, the current 10 Gb physical port fee has remained unchanged since June 2018.
Additionally, the Exchange believes the proposed fee increase is reasonable in light of recent and anticipated connectivity-related upgrades and changes. For example, the Exchange recently performed switch hardware upgrades. Particularly, the Exchange replaced existing customer access switches with newer models, which the Exchange believes contributes to increased determinism. Additionally, effective April 1, 2024, firms will be able to connect to a new data center (
The Exchange also believes the proposed fee is reasonable as it is still in line with, or even lower than, amounts assessed by other exchanges for similar connections.
The Exchange also believes that the proposed fee change is not unfairly discriminatory because it would be assessed uniformly across all market participants that purchase the physical ports. The Exchange believes increasing the fee for 10 Gb physical ports and charging a higher fee as compared to the 1 Gb physical port is equitable as the 1 Gb physical port is 1/10th the size of the 10 Gb physical port and therefore does not offer access to many of the products and services offered by the Exchange (
The Exchange also notes Members and non-Members will continue to choose the method of connectivity based on their specific needs and no broker-dealer is required to become a Member of, let alone connect directly to, the Exchange. There is also no regulatory requirement that any market participant connect to any one particular exchange. Moreover, direct connectivity is not a requirement to participate on the Exchange. The Exchange also believes substitutable products and services are available to market participants, including, among other things, other equities exchanges that a market participant may connect to in lieu of the Exchange, indirect connectivity to the Exchange via a third-party reseller of connectivity, and/or trading of any equities product, such as within the Over-the-Counter (OTC) markets which does not require connectivity to the Exchange. Indeed, there are currently 16 registered equities exchanges that trade equities (12 of which are not affiliated with Cboe), some of which have similar or lower connectivity fees.
As noted above, there is no regulatory requirement that any market participant connect to any one equities exchange, nor that any market participant connect at a particular connection speed or act in a particular capacity on the Exchange, or trade any particular product offered on an exchange. Moreover, membership is not a requirement to participate on the Exchange. Indeed, the Exchange is unaware of any one equities exchange whose membership includes every registered broker-dealer. By way of example, while the Exchange has 103 members that trade equities, Cboe EDGX has 124 members that trade equities, Cboe BYX has 110 members and Cboe BZX has 132 members. There is also no firm that is a Member of EDGA Equities only. Further, based on publicly available information regarding a sample of the Exchange's competitors, NYSE has 143 members,
A market participant may also submit orders to the Exchange via a Member broker or a third-party reseller of connectivity. The Exchange notes that third-party non-Members also resell exchange connectivity. This indirect connectivity is another viable alternative for market participants to trade on the Exchange without connecting directly to the Exchange (and thus not pay the Exchange connectivity fees), which alternative is already being used by non-Members and further constrains the price that the Exchange is able to charge for connectivity to its Exchange.
Accordingly, the vigorous competition among national securities exchanges provides many alternatives for firms to voluntarily decide whether direct connectivity to the Exchange is appropriate and worthwhile, and as noted above, no broker-dealer is required to become a Member of the Exchange, let alone connect directly to it. In the event that a market participant views the Exchange's proposed fee change as more or less attractive than the competition, that market participant can choose to connect to the Exchange indirectly or may choose not to connect to that exchange and connect instead to one or more of the other 12 non-Cboe affiliated equities markets. Indeed, market participants are free to choose which exchange or reseller to use to satisfy their business needs. Moreover, if the Exchange charges excessive fees, it may stand to lose not only connectivity revenues but also revenues associated with the execution of orders routed to it, and, to the extent applicable, market data revenues. The Exchange believes that this competitive dynamic imposes powerful restraints on the ability of any exchange to charge unreasonable fees for connectivity. Notwithstanding the foregoing, the Exchange still believes that the proposed fee increase is reasonable, equitably allocated and not unfairly discriminatory, even for market participants that determine to connect directly to the Exchange for business purposes, as those business reasons should presumably result in revenue capable of covering the proposed fee.
The Exchange lastly notes that it is not required by the Exchange Act, nor any other rule or regulation, to undertake a cost-of-service or rate-making approach with respect to fee proposals. Moreover, Congress's intent in enacting the 1975 Amendments to the Act was to enable competition—rather than government order—to determine prices. The principal purpose of the amendments was to facilitate the creation of a national market system for the trading of securities. Congress intended that this “national market system evolve through the interplay of
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 proposed fee change will not impact intramarket competition because it will apply to all similarly situated Members equally (
The Exchange's proposed fee is also still lower than some fees for similar connectivity on other exchanges and therefore may stimulate intermarket competition by attracting additional firms to connect to the Exchange or at least should not deter interested participants from connecting directly to the Exchange. Further, if the changes proposed herein are unattractive to market participants, the Exchange can, and likely will, see a decline in connectivity via 10 Gb physical ports as a result. The Exchange operates in a highly competitive market in which market participants can determine whether or not to connect directly to the Exchange based on the value received compared to the cost of doing so. Indeed, market participants have numerous alternative venues that they may participate on and direct their order flow, including 12 non-Cboe affiliated equities markets, as well as off-exchange venues, where competitive products are available for trading. Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to file number SR-CboeEDGA-2024-006. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend the MIAX Pearl Options Exchange Fee Schedule (the “Fee Schedule”) regarding the Open-Close Report to allow subscribers who purchase Intra-Day Open Close data the ability to request End-of-Day Open-Close data for no additional charge.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange offers a data product known as the Open-Close Report that is available for purchase by Exchange Members
By way of background, the Exchange offers two versions of the Open-Close Report, an end-of-day summary and intra-day report. The End-of-Day version is a volume summary of trading activity on the Exchange at the option level by origin (Priority Customer,
The Intra-Day Open-Close Report provides similar information to that of the End-of-Day version but is produced and updated every 10 minutes during the trading day. Data is captured in “snapshots” taken every 10 minutes throughout the trading day and is available to subscribers within five minutes of the conclusion of each 10-minute period. Each update represents the aggregate data captured from the current “snapshot” and all previous “snapshots.” The Intra-Day Open-Close data provides a volume summary of trading activity on the Exchange at the option level by origin (Priority Customer, Non-Priority Customer, Firm, Broker-Dealer, and Market Maker), side of the market (buy or sell), and transaction type (opening or closing). All volume is further broken down into trade size buckets (less than 100 contracts, 100-199 contracts, greater than 199 contracts).
The Exchange assesses a monthly fee of $600 per month for subscribing to the End-of-Day summary Open-Close Report and $2,000 per month for subscribing to the Intra-Day Open-Close Report. The Exchange also assesses a fee of $500 per request per month for ad-hoc requests for historical End-of-Day Open-Close data. An ad-hoc request for historical End-of-Day Open-Close data can be for any number of months beginning with June 2021 for which the data is available. The Exchange also assesses a fee of $1,000 per request per month for ad-hoc requests for historical Intra-Day Open-Close data. An ad-hoc request for historical Intra-Day Open-Close data can be for any number of months beginning with March 2017 for which the data is available.
The Exchange now proposes to amend fees for the Open-Close Report to allow subscribers who purchase Intra-Day Open Close data the ability to request End-of-Day Open-Close data for no additional charge. This proposal is akin to a fee break for subscribers because it would decrease the cost to purchase a broader scope of Open-Close Report data from the Exchange by allowing Intra-Day subscribers to request End-of-Day data for no additional charge Specifically, the Exchange proposes to allow subscribers who purchase an Intra-Day monthly subscription to request an End-of-Day monthly subscription for no additional charge. Similarly, the Exchange proposes to also allow subscribers who purchase an Intra-Day Ad-hoc Request (historical data) to submit an End-of-Day Ad-hoc Request (historical data) for the same date or date range for no additional charge upon request. The Exchange proposes to codify these proposed changes under new footnotes a. and b. under Section 6 of its Fee Schedule.
The Open-Close Report remains a completely voluntary product. The Exchange is not required by any rule or regulation to make this data available and potential subscribers may purchase it only if they voluntarily choose to do so. The Exchange notes that other exchanges offer a similar data product.
The proposed changes are immediately effective.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. Particularly, the Open-Close Report further broadens the availability of U.S. option market data to investors consistent with the principles of Regulation NMS. The data product also promotes increased transparency through the dissemination of the Open-Close Report. Particularly, information regarding opening and closing activity across different option series during the trading day may indicate investor sentiment, which may allow market participants to make better informed trading decisions throughout the day. Subscribers to the data may also be able to enhance their ability to analyze option trade and volume data and create and test trading models and analytical strategies. The Exchange believes the Open-Close Report provides a valuable tool that subscribers can use to gain comprehensive insight into the trading activity in a particular series, but also emphasizes such data is not necessary for trading and completely optional. Moreover, other exchanges offer a similar data product.
The Exchange operates in a highly competitive environment. Indeed, there are currently 16 registered options exchanges that trade options. As of January 30, 2024, based on publicly available information, no single options exchange has more than approximately 14-15% of the equity options market share and currently the Exchange represents only approximately 5.40% of the equity options market share for the month of January 2024.
The Exchange believes its proposal proposes to amend fees for the Open-Close Report to allow subscribers who purchase Intra-Day Open Close data the ability to request End-of-Day Open-Close data for no additional charge promotes just and equitable principles of trade because it enables subscribers to request additional Open-Close data for no additional charge. The End-of-Day version is a volume summary of trading activity on the Exchange, and essentially contains the same data as is provided in the final Intra-Day version at the end of the trading day and it is, therefore, reasonable and equitable to provide that data to Intra-Day subscribers for no additional charge. The Exchange believes the proposal is reasonable as the Exchange is simply making additional Open-Close data available for no additional charge, and fees for the Open-Close Report continue to be both modest and similar to, or even lower than, the fees assessed by other exchanges that provide similar data products.
Lastly, the Exchange believes the proposal is not unfairly discriminatory as it would apply equally to all users who choose to purchase or receive such data.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange believes that the proposal will promote competition by permitting the Exchange to enhance the value of a data product that is similar to those offered by other competitor options exchanges.
Furthermore, the Exchange operates in a highly competitive environment, and its ability to price Open-Close Report data is constrained by competition among exchanges that offer Open-Close report data to their customers. The Exchange notes that there are currently a number of similar products available to market participants and investors. Multiple other U.S. options exchanges offer Open-Close report data, which the Exchange must consider in its pricing discipline in order to compete for the market data.
The Exchange also does not believe the proposal would cause any unnecessary or inappropriate burden on intermarket competition as other exchanges are free to introduce their own comparable data product and lower their prices for Open-Close Report data to better compete with the Exchange's offering. The Exchange does not believe the proposed rule change would cause any unnecessary or inappropriate burden on intramarket competition. Particularly, the proposal would apply uniformly to any market participant. The proposal allows any interested Member or non-Member to request Open-Close Report data based on their business needs.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend the MIAX Emerald Options Exchange Fee Schedule (the “Fee Schedule”) regarding the Open-Close Report to allow subscribers who purchase Intra-Day Open Close data the ability to request End-of-Day Open-Close data for no additional charge.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange offers a data product known as the Open-Close Report that is available for purchase by Exchange Members
By way of background, the Exchange offers two versions of the Open-Close Report, an end-of-day summary and intra-day report. The End-of-Day version is a volume summary of trading activity on the Exchange at the option level by origin (Priority Customer,
The Intra-Day Open-Close Report provides similar information to that of the End-of-Day version but is produced and updated every 10 minutes during the trading day. Data is captured in “snapshots” taken every 10 minutes throughout the trading day and is available to subscribers within five minutes of the conclusion of each 10-minute period. Each update represents the aggregate data captured from the current “snapshot” and all previous “snapshots.” The Intra-Day Open-Close data provides a volume summary of trading activity on the Exchange at the option level by origin (Priority Customer, Non-Priority Customer, Firm, Broker-Dealer, and Market Maker), side of the market (buy or sell), and transaction type (opening or closing). All volume is further broken down into trade size buckets (less than 100 contracts, 100-199 contracts, greater than 199 contracts).
The Exchange assesses a monthly fee of $600 per month for subscribing to the End-of-Day summary Open-Close Report and $2,000 per month for subscribing to the Intra-Day Open-Close Report. The Exchange also assesses a fee of $500 per request per month for ad-hoc requests for historical End-of-Day Open-Close data. An ad-hoc request for historical End-of-Day Open-Close data can be for any number of months beginning with June 2021 for which the data is available. The Exchange also assesses a fee of $1,000 per request per month for ad-hoc requests for historical Intra-Day Open-Close data. An ad-hoc request for historical Intra-Day Open-Close data can be for any number of months beginning with March 2019 for which the data is available.
The Exchange now proposes to amend fees for the Open-Close Report to allow subscribers who purchase Intra-Day Open Close data the ability to request End-of-Day Open-Close data for no additional charge. This proposal is akin to a fee break for subscribers because it would decrease the cost to purchase a broader scope of Open-Close Report data from the Exchange by allowing Intra-Day subscribers to request End-of-Day data for no additional charge. Specifically, the Exchange proposes to allow subscribers who purchase an Intra-Day monthly subscription to request an End-of-Day monthly subscription for no additional charge. Similarly, the Exchange proposes to also allow subscribers who purchase an Intra-Day Ad-hoc Request (historical data) to submit an End-of-Day Ad-hoc Request (historical data) for the same date or date range for no additional charge upon request. The Exchange proposes to codify these proposed changes under new footnotes a. and b. under Section 6 of its Fee Schedule.
The Open-Close Report remains a completely voluntary product. The Exchange is not required by any rule or regulation to make this data available and potential subscribers may purchase it only if they voluntarily choose to do so. The Exchange notes that other exchanges offer a similar data product.
The proposed changes are immediately effective.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. Particularly, the Open-Close Report further broadens the availability of U.S. option market data to investors consistent with the principles of Regulation NMS. The data product also promotes increased transparency through the dissemination of the Open-Close Report. Particularly, information regarding opening and closing activity across different option series during the trading day may indicate investor sentiment, which may allow market participants to make better informed trading decisions throughout the day. Subscribers to the data may also be able to enhance their ability to analyze option trade and volume data and create and test trading models and analytical strategies. The Exchange believes the Open-Close Report provides a valuable tool that subscribers can use to gain comprehensive insight into the trading activity in a particular series, but also emphasizes such data is not necessary for trading and completely optional. Moreover, other exchanges offer a similar data product.
The Exchange operates in a highly competitive environment. Indeed, there are currently 16 registered options exchanges that trade options. As of January 30, 2024, based on publicly available information, no single options exchange has more than approximately 14-15% of the equity options market share and currently the Exchange represents only approximately 3.59% of the equity options market share for the month of January 2024.
The Exchange believes its proposal proposes to amend fees for the Open-Close Report to allow subscribers who purchase Intra-Day Open Close data the ability to request End-of-Day Open-Close data for no additional charge promotes just and equitable principles of trade because it enables subscribers to request additional Open-Close data for no additional charge. The End-of-Day version is a volume summary of trading activity on the Exchange, and essentially contains the same data as is provided in the final Intra-Day version at the end of the trading day and it is, therefore, reasonable and equitable to provide that data to Intra-Day subscribers for no additional charge. The Exchange believes the proposal is reasonable as the Exchange is simply making additional Open-Close data available for no additional charge, and fees for the Open-Close Report continue to be both modest and similar to, or even lower than, the fees assessed by other exchanges that provide similar data products.
Lastly, the Exchange believes the proposal is not unfairly discriminatory as it would apply equally to all users who choose to purchase or receive such data.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange believes that the proposal will promote competition by permitting the
Furthermore, the Exchange operates in a highly competitive environment, and its ability to price Open-Close Report data is constrained by competition among exchanges that offer Open-Close report data to their customers. The Exchange notes that there are currently a number of similar products available to market participants and investors. Multiple other U.S. options exchanges offer Open-Close report data, which the Exchange must consider in its pricing discipline in order to compete for the market data.
The Exchange also does not believe the proposal would cause any unnecessary or inappropriate burden on intermarket competition as other exchanges are free to introduce their own comparable data product and lower their prices for Open-Close Report data to better compete with the Exchange's offering. The Exchange does not believe the proposed rule change would cause any unnecessary or inappropriate burden on intramarket competition. Particularly, the proposal would apply uniformly to any market participant. The proposal allows any interested Member or non-Member to request Open-Close Report data based on their business needs.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of California (FEMA-4758-DR), dated 02/19/2024.
Issued on 02/19/2024.
Alan Escobar, Office of Disaster Recovery & Resilience, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 02/19/2024, applications for disaster loans may be submitted online using the MySBA Loan Portal
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 201706 and for economic injury is 201710.
Notice.
This notice contains the text of the report required by the Global Magnitsky Human Rights Accountability Act, as submitted by the Secretary of State.
Andrew Self, Email:
On January 25, 2024, the Under Secretary of State for Political Affairs approved the following report pursuant to the Global Magnitsky Human Rights Accountability Act (Pub. L. 114-328, title XII, subtitle F) (“the Act”), which is implemented and built upon by Executive Order 13818 of December 20, 2017, “Executive Order Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption” (E.O. 13818). The text of the report follows:
Pursuant to section 1264 of the Act, and in accordance with E.O. 13818, the Secretary of State, in consultation with the Secretary of the Treasury, submits this report to detail the Administration's implementation of the Act in the 2023 reporting period.
In 2023, the United States took significant action under the Global Magnitsky sanctions program (“Global Magnitsky”), sanctioning 78 foreign persons over the course of the year. As of December 2023, the United States has sanctioned over 650 foreign persons (individuals and entities) pursuant to E.O. 13818 since 2017. This sanctions program, which targets those connected to serious human rights abuse, corrupt actors, and their enablers, represents the best of the United States' values and enduring commitment to promoting respect for human rights and combatting corruption around the world. Through Global Magnitsky, the United States has sought to disrupt and deter serious human rights abuse and corruption abroad; promote accountability for those who act with impunity; and maintain U.S. global leadership on anti-corruption and human rights promotion in coordination with U.S. partners, allies, and civil society where appropriate. The Administration can and will continue to utilize this tool to promote respect for human rights and the rule of law globally.
As the President outlined in the National Security Strategy (NSS), the United States will stand with our allies and partners to combat new threats confronting our democracies. The Administration will take special aim at countering corruption, which corrodes democracy from the inside, erodes government stability, impedes economic development, and is increasingly weaponized by authoritarian states to undermine democratic institutions. The United States also seeks to promote respect for human rights; address discrimination, inequity, and marginalization in all its forms; and stand up for democracy, the rule of law, and human dignity. On all these issues, the United States works to forge a common approach with likeminded countries. Through implementation of the Global Magnitsky sanctions program, the Administration is taking action to execute the President's vision as described in the NSS.
Global Magnitsky, paired with cooperation with likeminded international partners, directly addresses the objectives outlined in the 2021 United States Strategy on Countering Corruption (“the strategy”), which underscores the fight against corruption as a national security priority. The strategy directs U.S. government action to: strengthen efforts to hold accountable corrupt individuals and their facilitators, including by, where appropriate, identifying, freezing, and recovering stolen assets through sanctions or other authorities; bolster the capacity of domestic and international institutions and multilateral bodies focused on establishing global anti-corruption norms; and work with international partners to counteract strategic corruption by foreign leaders, foreign state-owned or affiliated enterprises, and other foreign actors and their domestic collaborators.
The strategy spotlights the Global Magnitsky sanctions program among the U.S. Government's foreign policy tools for promoting global accountability for serious human rights abuse and corruption through the imposition of financial sanctions on foreign persons.
Actions taken in 2023 continue to demonstrate the reach, flexibility, and broad scope of Global Magnitsky. The United States responded to serious human rights abuse and corruption
When considering financial sanctions under Global Magnitsky, the United States prioritizes actions that are expected to produce a tangible and significant impact on corrupt actors, serious human rights abusers, and their affiliates, and prompt changes in behavior or disrupt the activities of malign actors. Sanctions under Global Magnitsky aim to target systemic corruption and human rights abuse, including the networks that engage in, facilitate, or perpetuate sustained patterns of such illicit behavior. Persons sanctioned pursuant to this authority appear on the Office of Foreign Assets Control's (OFAC's) List of Specially Designated Nationals and Blocked Persons (SDN List). As a result of these actions, all property and interests in property of the sanctioned persons that are in the United States or in the possession or control of U.S. persons are blocked and must be reported to OFAC. Unless authorized by a general or specific license issued by OFAC or otherwise exempt, OFAC's regulations generally prohibit all transactions by U.S. persons or within (or transiting) the United States that involve any property or interests in property of designated or otherwise blocked persons. The prohibitions include the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any blocked person or the receipt of any contribution or provision of funds, goods, or services from any such person.
In 2023, the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General, imposed economic sanctions on the following 78 foreign persons (individuals and entities) pursuant to E.O. 13818:
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○ On December 11, 2023, 41 entities were designated for being owned or controlled by, or having acted or purported to act for or on behalf of, directly or indirectly, Ajmal Rahmani:
○ Additionally, the following two German companies were designated for being owned or controlled by, or for having acted or purported to act for or on behalf of, directly or indirectly, Ocean Properties GmbH: Ozean Development Real Estate GmbH & Co. KG and Ozean Real Estate GmbH & Co. KG.
○ The following Dutch company was designated for being owned or controlled by, or for having acted or purported to act for or on behalf of, directly or indirectly, RZ Group FZE: AlphaOne Pharmaceutical B.V.
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Persons designated pursuant to E.O. 13818 are subject to the entry restrictions articulated in section 2, unless an exception applies. Section 2 provides that the entry of persons designated under section 1 of the order is suspended pursuant to Presidential Proclamation 8693.
In 2023, the Department took steps to impose visa restrictions, when appropriate, on foreign persons involved in certain human rights violations and significant corruption pursuant to other authorities, including Presidential Proclamations 7750 and 8697, and Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act. The Department will continue to identify individuals subject to those authorities as appropriate, including but not limited to individuals designated under Global Magnitsky. In addition, the Department continues to implement all grounds of inadmissibility in the Immigration and Nationality Act (INA), including INA section 212(a)(3)(E) which renders applicants ineligible for visas if a consular officer has reason to believe that they participated in acts of genocide, torture, or extrajudicial killings.
The United States recognizes that our sanctions are most impactful when implemented in coordination with our foreign partners. In 2023, the Administration continued its successful outreach campaign to international partners regarding the expansion and use of domestic and multilateral anticorruption and human rights sanctions regimes. Over the course of the reporting period, the Administration coordinated with likeminded partners in pursuing coordinated actions against human rights abusers and corrupt actors, particularly in the run up to annual International Anti-Corruption Day and Human Rights Day. The United States took its Human Rights Day actions in concert with the United Kingdom and Canada, each of which took similar measures to deter human rights abuse globally. Of note, in coordination with partners on the United Nations Security Council, the United States co-sponsored the designation by the Security Council of four Haitian gang leaders, consistent with the Presidential Memorandum on Conflict-Related Sexual Violence and underscoring the Administration's commitment to recognizing abhorrent abuse and promoting accountability for serious human rights abusers.
Though not concurrent with U.S. actions, the United Kingdom, Canada, European Union (EU), and Australia all took action against individuals in Russia connected to serious human rights abuse, namely the arbitrary detention of Russian pro-democracy activist Vladimir Kara-Murza. Additionally, the United States designated Gary Bodeau in April 2023, an individual previously designated by Canada under its Special Economic Measure for Haiti authority in November 2022. On the same day that the United States announced a second round of corruption sanctions in Bulgaria, the United Kingdom, together with U.S. government officials in Sofia, announced its designation of three corrupt Bulgarian actors for serious corruption and abuse of public institution funds under its Global Anti-Corruption and Global Human Rights regimes. The UK designations reinforced prior U.S. designations of these individuals under Global Magnitsky on June 2, 2021: Vassil Kroumov Bojkov, Delyan Slavchev Peevski, and Ilko Dimitrov Zhelyazkov. Similarly, in May 2023, the EU designated seven Moldovan individuals for undermining or threatening the sovereignty of Moldova, including Vladimir Plahotniuc, who was previously designated by the United States in October 2022 and by the United Kingdom in December 2022. In May 2023, Canada designated seven individuals, including Plahotniuc. In October 2023, Canada imposed sanctions on nine additional individuals associated with Plahotniuc. On December 8, 2023, the United States designated two Afghan individuals, including Khalid Hanafi, the Taliban's so-called “Minister” for the so-called “Ministry for the Propagation of Virtue and Prevention of Vice” (MPVPV) for serious human rights abuse related to the repression of women and girls, including through the restriction of access to secondary education for women and girls in Afghanistan solely on the basis of gender. The EU took similar action under its Global Human Rights Sanctions Regime on July 20, 2023, imposing restrictive measures on two of the Taliban's so-called “acting Ministers”—including Hanafi—for their role in “depriving Afghan girls and women of their right to education, access to justice and equal treatment between men and women.”
The United States is closely following the potential development of an EU anti-corruption sanctions authority and stands ready to support EU efforts by sharing insights and offering technical support, including regarding evidence collection, addressing legal challenges, and evidentiary requirements. The Administration will continue to seek out additional allies and partners, including civil society, to leverage all tools at our disposal to deny access to the United States' and international financial systems and deny entry to the United States to all those who engage in serious human rights abuse and corruption.
Notice; withdrawal.
The Department of State published a document in the
Merideth Manella, (202) 286-5271,
Withdrawal.
In the
Notice of a meeting.
Delegates from the United States and Mexican governments, the states of New Mexico and Texas, and the Mexican states of Chihuahua, Coahuila, Nuevo Laredo, and Tamaulipas will participate in a regional meeting of the U.S.-Mexico Binational Bridges and Border Crossings Group. The purpose of this meeting is to discuss operational matters involving existing and proposed international bridges and border crossings and their related infrastructure and to exchange technical information as well as views on policy. This meeting will include a public session. This session will allow proponents of proposed bridges and border crossings and related projects to make presentations to the delegations and members of the public.
March 13, 2024 at 9 a.m. Public session from 9 a.m. to 1 p.m.
Mexico City, Mexico.
For further information on the meeting and to attend the public session, please contact Beney Lee, Border Affairs Officer, via email at
Wilmington Terminal Railroad, Limited Partnership (WTR), a Class III railroad, has filed a verified notice of exemption under 49 CFR 1150.42 to exempt from regulation WTR's entry into an amendment (Amendment) with the North Carolina State Ports Authority (NCSPA) to extend a 2002 Rail Operating Agreement (Original Agreement) between WTR and NCSPA relating to WTR's continued operations as a common carrier over approximately 18 miles of track in three segments (the Line).
According to the verified notice, WTR currently operates the Line and has owned a permanent and exclusive railroad operating easement for the Line since 2002. WTR states that it has entered into the Amendment with NCSPA to extend the term of the Original Agreement and amend other commercial terms related to WTR's operations over the Line. The verified notice states that the Amendment will be effective on the effective date of the exemption.
WTR certifies that neither the Original Agreement nor the Amendment include an interchange commitment. WTR also certifies that its projected annual revenue are not expected to exceed those that would qualify it as a Class III carrier and that its revenues currently exceed $5 million.
Pursuant to 49 CFR 1150.42(e), if a carrier's projected annual revenues will exceed $5 million, it must, at least 60 days before the exemption becomes effective, post a notice of its intent to undertake the proposed transaction at the workplace of the employees on the affected lines, serve a copy of the notice on the national offices of the labor unions with employees on the affected lines, and certify to the Board that it has done so. However, WTR has filed a request for waiver of the 60-day advance labor notice requirements to allow the transaction to become effective 30 days after WTR's notice of exemption was filed. WTR's waiver request will be addressed in a separate decision. The Board will establish the effective date of the exemption in its separate decision on the waiver request.
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than March 1, 2024.
All pleadings, referring to Docket No. FD 36753, must be filed with the
According to WTR, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic preservation reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Mai T. Dinh, Director, Office of Proceedings.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by September 5, 2023.
Please send written comments:
Kamruz Zaman by email at:
Notice and request for public comment.
The U.S. Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (PRA). Currently, the Community Development Financial Institutions Fund (CDFI Fund), U.S. Department of the Treasury, is soliciting comments concerning the New Markets Tax Credit Program (NMTC Program) Allocation Application, for the calendar year (CY) 2024-2026 funding rounds (hereafter, the Application or Applications). The CDFI Fund is required by law to make the Application publicly available for comment prior to submission for a new PRA number.
Written comments must be received on or before April 23, 2024 to be assured of consideration.
Direct all comments to Christopher Allison, NMTC Program Manager, CDFI Fund, at
Requests for additional information should be directed to Christopher Allison, NMTC Program Manager, CDFI Fund, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220, or by email to
The tax credit provided to the investor totals 39 percent of the amount of the investment and is claimed over a seven-year period. In each of the first three years, the investor receives a credit equal to five percent of the total amount paid for the stock or capital interest at the time of purchase. For the final four years, the value of the credit is six percent annually. Investors may not redeem their investments in CDEs prior to the conclusion of the seven-year period without forfeiting any credit amounts they have received.
The CDFI Fund is responsible for certifying organizations as CDEs and administering the competitive allocation of tax credit authority to CDEs, which it does through annual allocation rounds. As part of the award selection process, CDEs will be required to prepare and submit an Allocation Application, which consists of five sections: Business Strategy; Community Outcomes; Organization Capacity; Capitalization Strategy; and Previous Allocations and Awards.
Comments concerning the Application are invited on: (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of technology; (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services required to provide information; and (f) whether any additional questions or factors should be considered as part of the NMTC Application and/or review process with regards to the Business Strategy section.
Financial Crimes Enforcement Network (FinCEN), Treasury.
Notice and request for comments.
As part of its continuing effort to reduce paperwork and respondent burden, FinCEN invites comments on the proposed renewal, without change, of an existing information collection relating to records of certain domestic transactions. Specifically, if the Secretary of the Treasury finds that reasonable grounds exist for concluding that additional recordkeeping and/or reporting requirements are necessary to carry out the purposes of the Bank Secrecy Act, or to prevent evasions thereof, the Secretary may issue an order that imposes certain additional recordkeeping and reporting requirements on one or more domestic financial institutions or nonfinancial trades or businesses in a geographic area. These orders are commonly referred to as geographic targeting orders (GTOs). This request for comments is made pursuant to the Paperwork Reduction Act of 1995 (PRA).
Written comments are welcome and must be received on or before April 23, 2024.
Comments may be submitted by any of the following methods:
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Please submit comments by one method only. Comments will be reviewed consistent with the PRA and applicable OMB regulations and guidance. Comments will generally become a matter of public record. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. Given the nature of GTOs and their law enforcement purposes, any information that concerns confidential matters involving specific GTOs should be marked “confidential” and include the specific name of the GTO.
FinCEN's Regulatory Support Section at 1-800-767-2825, or electronically at
The legislative framework generally referred to as the Bank Secrecy Act (BSA) consists of the Currency and Foreign Transactions Reporting Act of 1970, as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107-56 (October 26, 2001), and other legislation, including the Anti-Money Laundering Act of 2020 (AML Act).
The BSA authorizes the Secretary of the Treasury (Secretary) to,
Congress amended the BSA in 1988 to give the Secretary the authority to issue GTOs requiring any domestic financial institution or group of domestic financial institutions in a geographic area to collect certain information regarding specified transactions, and to report that information in the manner and to the extent specified in the GTO.
Pursuant to 31 U.S.C. 5326(a), as amended, if the Secretary finds that reasonable grounds exist for concluding that additional recordkeeping and reporting are necessary to carry out the purpose of the BSA or to prevent evasions thereof, the Secretary may issue a GTO requiring any domestic financial institution or nonfinancial trade or business or group of domestic financial institutions or domestic nonfinancial trades or businesses in a geographic area to obtain information about certain transactions, as described in the GTO.
Generally, 31 U.S.C. 5326(a) requires entities that receive such a GTO to report, in the manner and to the extent specified in the GTO, information concerning any transaction in which such entity is involved for the payment, receipt, or transfer of funds (as described in the GTO). A GTO typically will include the following terms: (i) the dollar amount of transactions subject to the reporting requirement; (ii) the type of transactions subject to or exempt from the reporting requirement; (iii) the appropriate form for reporting and the method for form submission; (iv) the start and end dates by which the transactions specified in the GTO are to be reported; (v) a point of contact at for questions; (vi) the amount of time the reports and records of reports generated are required to be retained; and (vii) any other information deemed necessary to carry out the purpose of the GTO. Pursuant to 31 U.S.C. 5326(d), GTOs cannot prescribe a reporting period longer than 180 days, unless the GTO is renewed pursuant to 31 U.S.C. 5326(a).
Pursuant to 31 U.S.C. 5326(a)(2), as implemented by 31 CFR 1010.410(d), each entity that receives a GTO must retain the original or a copy of the information required to be reported in the GTO, for the period specified in the GTO, not to exceed five years.
Generally, the information required to be recorded and reported pursuant to a GTO is basic information that a domestic financial institution or domestic nonfinancial trade or business would have access to in the normal course of doing business, such as payment, receipt, or transfer of funds information. The information required to be reported pursuant to a GTO, generally, includes the following: (i) the dollar amount of the transaction; (ii) the type of transaction; (iii) information identifying a party to the transaction, such as name, address, date of birth, and tax identification number; (iv) the role of a party in the transaction (
As noted above, FinCEN will specify the form and method for reporting. Responses to GTOs generally are submitted to FinCEN electronically, such as through the BSA E-Filing System. FinCEN has on occasion directed filers to respond to GTOs by using existing BSA electronic forms (such as the forms used to file currency transaction reports, suspicious activity reports,
Because the information to be reported is readily available to a domestic financial institution or nonfinancial trade or business, in 2020 FinCEN estimated that reporting this information would take 20 minutes on average.
GTO information is filed electronically, which allows the filer to save an electronic version of the report and satisfy the recordkeeping requirement. Therefore, FinCEN estimates that the recordkeeping requirement will take five minutes on average. In total, FinCEN estimates the hourly burden of reporting and recordkeeping for each reportable transaction under a GTO to be 50
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Records required to be retained under the BSA must be retained for five years.
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 two individuals that have been placed on OFAC's Specially Designated Nationals and Blocked Persons 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 individuals are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See Supplementary Information section for effective date(s).
OFAC: Bradley T. 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 the Assistant Director for Compliance, tel.: 202-622-2490.
The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On February 20, 2024, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following individuals are blocked under the relevant sanctions authorities listed below.
Designated pursuant to section l(a)(ii)(D) of Executive Order 13694 of April 1, 2015, “Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities,” 80 FR 18077, 3 CFR, 2015 Comp., p. 297, as amended by Executive Order 13757 of December 28, 2016, “Taking Additional Steps to Address the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities,” 82 FR 1, 3 CFR, 2016 Comp., p. 659 (E.O. 13694, as amended) for being responsible for or complicit in, or having engaged in, directly or indirectly, an activity described in section 1(a)(ii) of E.O. 13694, as amended.
Designated pursuant to section l(a)(ii)(D) of E.O. 13694, as amended, for being responsible for or complicit in, or having engaged in, directly or indirectly, an activity described in section 1(a)(ii) of E.O. 13694, as amended.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning, IVES Request for Transcript of Tax Return.
Written comments should be received on or before April 23, 2024 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of this collection should be directed to Martha R. Brinson, at (202) 317-5753, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
• A second “signature box” (Signatory attest this is to request tax information for mortgage loans for residential or commercial real property (land and buildings) was added to the form.
• Information was added to the top of the form regarding “To request necessary tax information for mortgage loans specific to residential or commercial real property (land and buildings)”.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Departmental Offices, Department of the Treasury.
Notice of open meeting.
This notice announces that the U.S. Department of the Treasury's Federal Advisory Committee on Insurance (FACI) will meet in the Cash Room at the U.S. Department of the Treasury, 1500 Pennsylvania Ave. NW, Washington, DC, and also via videoconference on Wednesday, March 20, 2024, from 1:30 p.m.-4:30 p.m. Eastern Time. The meeting will be open to the public. The FACI provides non-binding recommendations and advice to the Federal Insurance Office (FIO) in the U.S. Department of the Treasury.
Wednesday, March 20, 2024, from 1:30 p.m.-4:30 p.m. Eastern Time.
The meeting will be held in the Cash Room, Department of the
John Gudgel, Senior Insurance Regulatory Policy Analyst, Federal Insurance Office, U.S. Department of the Treasury, 1500 Pennsylvania Ave. NW, Room 1410 MT, Washington, DC 20220, at (202) 622-1748 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the toll-free Federal Relay Service at (800) 877-8339.
Notice of this meeting is provided in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. 1009(a)(2), through implementing regulations at 41 CFR 102-3.150.
• Send electronic comments to
• Send paper statements in triplicate to the Federal Advisory Committee on Insurance, U.S. Department of the Treasury, 1500 Pennsylvania Ave. NW, Room 1410 MT, Washington, DC 20220.
Veterans Health Administration (VHA), Department of Veterans Affairs (VA).
Notice of a modified system of records.
Pursuant to the Privacy Act of 1974, notice is hereby given that the VA is modifying the system of records titled, “My Health
Comments on this amended system of records must be received no later than 30 days after date of publication in the
Comments may be submitted through
Stephania Griffin, VHA Chief Privacy Officer, 810 Vermont Avenue NW, Washington, DC 20420; telephone 704-245-2492 (Note: this is not a toll-free number).
VA is amending the system of records by revising the System Number; System Location; Purpose of the System; Records Source Categories; Categories of Individuals Covered by the System; Categories of Records in the System; Routine Uses of Records Maintained in the System; Policies and Practices for Retrieval of Records; Policies and Practices for Retention and Disposal of Records; Administrative, Technical and Physical Safeguards; Record Access Procedure; Contesting Records Procedures; and Notification Procedure. VA is republishing the system notice in its entirety.
The System Number is changed from 130VA10P2 to 130VA10 to reflect the current organizational alignment.
The System Location is being amended to remove the VA National Data Centers and the contracted data storage system located in Culpepper, Virginia. Replacing this section is, “VA Enterprise Cloud Data Centers/Amazon Web Services, 1915 Terry Avenue, Seattle, WA 98101, and the VA Health Data Repository, 1615 Woodward Street, Austin, TX 78741.”
The Purpose of the System is being amended to include, “administrative information may also be used for My Health
The Categories of Individuals Covered by the System number 3 is being amended to include “
The Categories of Records in the System section is being amended to remove mother's maiden name. This section is being updated to reflect the following language: “These records include the following information for My Health
The My Health
In the Records Source Categories section, number 2 is being updated to include delegates; number 3 will be updated to include administrative staff; number 4 is being updated to include developers and testers; number 5 is being updated to include MPI. Number 6 is being removed, “VA researchers fulfilling VA required authorization procedures in VHA Directive 1200.01(1)”.
Routine use number 10 is being added to state, “To another Federal agency or Federal entity, when VA determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (a) responding to a suspected or confirmed breach or (b) preventing, minimizing or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.”
Routine use number 11 is being added to state, “VHA may disclose a My Health
Routine use number 12 is being added to state, “To officials of labor organizations recognized under 5 U.S.C. chapter 71 provided that the disclosure is limited to information identified in 5 U.S.C. 7114(b)(4) that is relevant and necessary to their duties of exclusive representation concerning personnel policies, practices and matters affecting working conditions.”
Policies and Practices for Retrieval of Records is being updated to include “electronic data interchange personal identifier.”
Policies and Practices for Retention and Disposal of Records is being updated to remove, “Records from this system that are needed for audit purposes will be retained for at least six (6) years after a user's account becomes inactive. Routine records will be disposed of when the agency determines they are no longer needed for administrative, legal, audit, research, or other operational purposes, but no less than six (6) years from date of last account activity.” This section is also being amended to include the Record Control Schedule (RCS) and Item Number(s).
Administrative, Technical and Physical Safeguards is being updated to include number 5, “VA Enterprise Cloud data storage conforms to security protocols as stipulated in VA Directives 6500 and 6517. Access control standards are stipulated in specific agreements with cloud vendors to restrict and monitor access.”
Record Access Procedures is being amended to state, “Individuals seeking information on the existence and content of records in this system pertaining to them should contact the system manager in writing as indicated above, or may write or visit the VA facility location where they normally receive their care. A request for access to records must contain the requester's full name, address, telephone number, be signed by the requester, and describe the records sought in sufficient detail to enable VA personnel to locate them with a reasonable amount of effort.”
Contesting Record Procedures is being amended to state, “Individuals seeking to contest or amend records in this system pertaining to them should contact the system manager in writing as indicated above, or may write or visit the VA facility location where they normally receive their care. A request to contest or amend records must state clearly and concisely what record is being contested, the reasons for contesting it, and the proposed amendment to the record.”
Notification Procedure is being amended to state, “Generalized notice is provided by the publication of this notice. For specific notice, see Record Access Procedure, above.”
The Report of Intent to Amend a System of Records Notice and an advance copy of the system notice have been sent to the appropriate Congressional committees and to the Director of the Office of Management and Budget (OMB) as required by 5 U.S.C. 552al (Privacy Act) and guidelines issued by OMB (65 FR 77677), December 12, 2000.
The Senior Agency Official for Privacy, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Kurt D. DelBene, Assistant Secretary for Information and Technology and Chief Information Officer, approved this document on January 18, 2024 for publication.
“My Health
Unclassified.
Records are maintained at Veterans Health Administration (VHA) facilities, Department of Veterans Affairs (VA) Enterprise Cloud Data Centers/Amazon Web Services, 1915 Terry Avenue, Seattle, WA 98101, and the VA Health Data Repository, 1615 Woodward Street, Austin, TX 78741. Address locations for VHA facilities are listed in VA Appendix 1 of the biennial publications of the VA system of records.
Official responsible for policies and procedures: Director of Veterans and Consumers Health Informatics Office, 8455 Colesville Road, Suite 1200, Silver Spring, Maryland 20910. Officials maintaining this system of record: VHA facilities (address locations for VHA facilities are listed in VA Appendix 1 of the biennial publications of the VA system of records) and the My Health
38 U.S.C. 501.
The purpose of this system of records is to administer the My Health
Individuals covered by this system encompass: (1) All individuals who successfully register for a My Health
These records include the following information for My Health
The My Health
Record sources include the individuals covered by this notice and an additional contributor, as listed below:
(1) All individuals who successfully register for a My Health
(2) Representatives of the above individuals who have been provided access to the private health space by the Veteran user, including but not limited to, POA, or VA, non-VA health care providers, and delegates;
(3) VA health care providers and administrative staff;
(4) VA OIT staff and/or their contractors and subcontractors, developers and testers who may need to enter information into the system to initiate, support and maintain My Health
(5) Veterans Health Information Systems and Technology Architecture (VistA), MPI and other VA Information Technology systems.
To the extent that records contained in the system include information protected by the HIPAA Privacy Rule and 38 U.S.C. 7332, that information cannot be disclosed under a routine use unless there is also specific statutory authority in both provisions.
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(a) VA or any component thereof;
(b) Any VA employee in his or her official capacity;
(c) Any VA employee in his or her individual capacity where DoJ has agreed to represent the employee; or
(d) The United States, where VA determines that litigation is likely to affect the agency or any of its components is a party to such proceedings or has an interest in such proceedings, and VA determines that use of such records is relevant and necessary to the proceedings.
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Records are maintained on paper and electronic media, including hard drive disks, which are backed up to tape at regular intervals.
Records may be retrieved by an individual's name, user identification, date of registration for My Health
Records in this system are retained and disposed of in accordance with the schedule approved by the Archivist of the United States, General Records Schedule 3.2 Item 031.
1. Access to and use of the My Health
2. Physical access to computer rooms housing the My Health
3. Data transmissions between operational systems and My Health
4. Copies of back-up computer files are maintained at secure off-site locations.
5. VA Enterprise Cloud data storage conforms to security protocols as stipulated in VA Directives 6500 and 6517. Access control standards are stipulated in specific agreements with cloud vendors to restrict and monitor access.
Individuals seeking information on the existence and content of records in this system pertaining to them should contact the system manager in writing as indicated above or write or visit the VA facility location where they normally receive their care. A request for access to records must contain the requester's full name, address, telephone number, be signed by the requester, and describe the records sought in sufficient detail to enable VA personnel to locate them with a reasonable amount of effort.
Individuals seeking to contest or amend records in this system pertaining to them should contact the system manager in writing as indicated above or inquire in person at the VA health care facility they normally receive their care. A request to contest or amend records must state clearly and concisely what record is being contested, the reasons for contesting it, and the proposed amendment to the record.
Generalized notice is provided by the publication of this notice. For specific notice, see Record Access Procedure, above.
None.
75 FR 70365 (November 17, 2010); 81 FR 58005 (August 24, 2016).
National Cemetery Administration (NCA), Department of Veterans Affairs (VA).
Notice of a modified system of records.
Pursuant to the Privacy Act of 1974, notice is hereby given that the Department of Veterans Affairs (VA) is updating the system of records in its inventory entitled, “Veterans and Dependents National Cemetery Gravesite Reservation Records-VA” (41VA41). This system contains information related to Veterans and their dependents who have made gravesite reservations with the National Cemetery Administration (NCA). VA is updating the contact and location information. VA is republishing the system notice in its entirety.
Comments on this modified system of records must be received no later than 30 days after date of publication in the
Comments may be submitted through
Cindy Merritt, National Cemetery Administration (NCA) Privacy Officer (43E), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420,
The System Location and System Manager were incorrectly listed in the System Location and System Manager sections of the January 27, 2023, publication. Those sections are being modified.
The System Location is being amended to reflect “Records are maintained at the National Cemetery Administration (41), VA Central Office, Washington DC 20420.”
The System Manager is being amended to reflect “Lisa Pozzebon, Executive Director of Cemetery Operations (41A), National Cemetery Administration, VA Central Office, 810 Vermont Avenue NW, Washington, DC 20420, telephone (202) 461-0265,
The Senior Agency Official for Privacy, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Kurt D. DelBene, Assistant Secretary for Information and Technology and Chief Information Officer, approved this document on January 18, 2024 for publication.
Veterans and Dependents National Cemetery Gravesite Reservation Records-VA (41VA41).
Unclassified.
Records are maintained at the National Cemetery Administration (41), VA Central Office, Washington, DC 20420.
Lisa Pozzebon, Executive Director of Cemetery Operations (41A), National Cemetery Administration, VA Central Office, 810 Vermont Avenue NW, Washington, DC 20420, telephone (202) 461-0265,
38 U.S.C. 2402.
The purpose for which the records are used will include, but will not be limited to, the: provision of VA burial and memorial benefits; provision of information about VA burial and memorial benefits, including specific claims; determination of eligibility for burial in a VA national cemetery; disclosure of military service information upon request from VA-funded State and Tribal Veterans cemeteries; coordination of committal services and interment upon request of families, funeral homes, and others of eligible decedents at VA national cemeteries; investigation of potential bars to benefits for an otherwise eligible individual.
The records contain information on: Veterans, dependents and family members of Veterans; Members of the Armed Forces (Service members), family members of Service members, Reservists and Retirees (Active Duty; Reserves; or National Guard); other VA customers (
Records may include information submitted to VA by means of paper or online forms that respondents can mail or electronically transmit by fax or email for storage and retrieval in VA's secure filing and information technology systems. Records may contain information, such as demographics and personal identifiers (
Records may also include supporting documentation submitted to identify individuals submitting pre-need applications on behalf of claimants. Supporting documentation may include, but is not limited to the following items: VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), VA Form 21-22a (Appointment of Individual as Claimant's Representative) for an Authorized Attorney, or Agent; proof of prior written authorization, such as a durable power of attorney, or an affidavit establishing a caregiver relationship to the claimant (spousal, parent, other relative); and documentation showing the individual as the court-appointed representative authorized to act on behalf of as the claimant.
Information in this system of records is provided by Veterans; Veteran beneficiaries; Veteran dependents; members of the Armed Forces of the United States, including Reserves and National Guard and their beneficiaries; other individuals (such as funeral home directors, coroners, medical examiners) submitting eligibility determinations on behalf of claimants; VA employees; other VA authorized users (
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(a) VA or any component thereof;
(b) Any VA employee in his or her official capacity;
(c) Any VA employee in his or her individual capacity where DoJ has agreed to represent the employee; or
(d) The United States, where VA determines that litigation is likely to affect the agency or any of its components is a party to such proceedings or has an interest in such proceedings, and VA determines that use of such records is relevant and necessary to the proceedings.
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Records in this system are maintained in paper and electronic formats in IT systems and on electronic storage media including magnetic tape, disk, microfilm, and laser optical media.
Records are retrieved by name only; name and one or more numbers (military service or social security); name and one or more criteria (
Records in this system are retained in accordance with records retention standards approved by the Archivist of the United States, National Cemetery Records, NC1-015-85-14. Permanent
Information in the system is protected from unauthorized access through administrative, physical, and technical safeguards. Access to the hard copy and computerized information is restricted to authorized VA employees and VA contractors by means of PIV card and PIN, and/or passwords. Information security officers and system data stewards review and authorize data access requests. VA regulates data access with security software that authenticates users and requires individually unique codes and passwords. VA requires information security training for all staff and instructs staff on the responsibility each person has for safeguarding data confidentiality. Hard copy records are maintained in offices or designated storage areas and locked after duty hours.
Individuals seeking information on the existence and content of records in this system pertaining to them should contact the system manager in writing as indicated above. A request for access to records must contain the requester's full name, address, telephone number, be signed by the requester, and describe the records sought in sufficient detail to enable VA personnel to locate them with a reasonable amount of effort.
Individuals seeking to contest or amend records in this system pertaining to them should contact the system manager in writing as indicated above. A request to contest or amend records must state clearly and concisely what record is being contested, the reasons for contesting it, and the proposed amendment to the record.
Generalized notice is provided by the publication of this notice. For specific notice, see Record Access Procedure, above.
None.
88 FR 5435 (Jan. 27, 2023).
Office of Career, Technical, and Adult Education (OCTAE), Rehabilitation Services Administration (RSA), Department of Education; Employment and Training Administration (ETA), Department of Labor.
Joint final rule.
The Workforce Innovation and Opportunity Act (WIOA) establishes six primary indicators of performance and defines five of those performance indicators. With this final rule, the U.S. Departments of Labor and Education (Departments) define the sixth performance indicator—effectiveness in serving employers—as Retention with the Same Employer and require it be reported by one WIOA core program on behalf of all six WIOA core programs within each State. This final rule incorporates two changes from the notice of proposed rulemaking (NPRM): the final rule does not limit the type of wage information that must be used, thereby permitting the use of supplemental wage information in the definition of the effectiveness in serving employers performance indicator, and it specifies that the definition is measuring retention in unsubsidized employment.
This final rule is effective March 25, 2024.
For persons with a hearing or speech disability who need assistance to use the telephone system, please dial 711 to access telecommunications relay services.
In the final rule implementing WIOA,
On July 22, 2014, President Barack Obama signed into law WIOA, which superseded titles I and II of the Workforce Investment Act of 1998 and amended the Wagner-Peyser Act and the Rehabilitation Act of 1973 (Rehabilitation Act). In WIOA sec. 503(f), Congress directed the Departments to issue regulations implementing statutory requirements to ensure that the public workforce system operates as a comprehensive, integrated, and streamlined system to provide pathways to prosperity and continuously improve the quality and performance of its services to job seekers and employers. The Secretaries of Labor and Education are also authorized to promulgate regulations governing the WIOA-authorized programs, the Wagner-Peyser Act programs, and the Vocational Rehabilitation (VR) program. Specifically, WIOA sec. 189(a) permits the Secretary of Labor to prescribe rules and regulations to carry out title I of WIOA. Similarly, section 12 of the Wagner-Peyser Act permits the Secretary of Labor to promulgate rules to administer the Wagner-Peyser Act programs. Section 410 of the General Education Provisions Act authorizes the Secretary of Education to promulgate regulations governing the programs the U.S. Department of Education (ED) administers, including title II of WIOA—the Adult Education and Family Literacy Act (AEFLA)—and the VR program. Section 414 of the Department of Education Organization Act also authorizes the Secretary of Education to prescribe rules and regulations necessary or appropriate to administer and manage the function of ED.
WIOA sec. 116 establishes the performance indicators
In the 2016 Joint WIOA Final Rule, the Departments initiated a phased approach to defining the effectiveness in serving employers performance indicator. Currently, 20 CFR 677.155(a)(1)(vi) and 34 CFR 361.155(a)(1)(vi) and 463.155(a)(1)(vi) implement the effectiveness in serving employers performance indicator as described in WIOA sec. 116(b)(2)(A)(i)(VI), subject to WIOA sec. 116(b)(2)(A)(iv), which requires the Secretaries of Labor and Education to jointly develop and establish the performance indicator, after consultation with representatives of State and local governments, business and industry, and other interested parties. To that end, in developing the Joint WIOA Final Rule, the Departments consulted with stakeholders and considered public comments on three proposed approaches to defining the performance indicator, and in the Joint WIOA Final Rule, the Departments stated they would work to implement a pilot program, the details of which would be further delineated in joint Departmental guidance (81 FR 55792, 55846).
The pilot tested all three approaches described by the Departments in the Joint WIOA NPRM
Because of the narrow scope of the regulation, the Departments encouraged commenters to submit only comments regarding the definition of the effectiveness in serving employers performance indicator and the indicator's use in determining whether sanctions are necessary for failure to achieve adjusted levels of performance as set forth herein. The proposed amendments in the Joint WIOA Effectiveness in Serving Employers NPRM were on a limited number of provisions in the performance accountability regulations at 20 CFR part 677 and 34 CFR parts 361 and 463. Therefore, the Departments determined comments received on other provisions and aspects of the WIOA regulations that were not covered in this final rule, whether promulgated jointly by the Departments or independently by each agency, to be outside the scope of this rulemaking and, thus, did not consider those comments when developing this final rule.
The Joint WIOA Effectiveness in Serving Employers NPRM invited written comments from the public concerning this rulemaking through November 14, 2022. No commenters requested an extension of the comment period. The comments received may be viewed by entering docket number ETA-2022-0006 at
The Departments received 47 comments in the docket for this rulemaking, and the docket for the
This section of the final rule provides a general overview of the comments received. Section II (Section-by-Section Analysis of this Final Rule), which follows this section, describes the comments in more detail and provides the Departments' responses to them.
A commenter expressed general support for the proposed rule because, in their view, it would benefit the workforce and promote cost savings for employers in the long term. Many commenters addressed the pilot program in a myriad of ways, including discussing the advantages and disadvantages of the piloted approaches for measuring effectiveness in serving employers, making alternative recommendations, requesting flexibilities, and seeking an extension of certain aspects of the pilot.
The Departments' proposal to use Retention with the Same Employer as the indicator for measuring effectiveness in serving employers received mixed reviews, with a few agreeing that it is the preferred approach while others expressed concerns that it would not measure the right things.
A few commenters asked the Departments for clarification about how the proposed indicator will be calculated and implemented, with some describing potential issues in data collection or recommending different approaches to calculating the indicator. Other commenters recommended that the Departments allow the use of supplemental wage information in the definition of effectiveness in serving employers. Responding to a request for comment in the proposed rule, some commenters offered recommendations about ways the Departments could mitigate potential unintended consequences and downsides of the Retention with the Same Employer measure.
Several commenters provided feedback on the Departments' proposal that the overall State indicator score for effectiveness in serving employers be a shared outcome reported by one core program on behalf of all six core programs in the State, with some opposing that approach and others supporting it. A few commenters focused on concerns about the administration and implementation of a shared outcome, requesting clarification about local level implementation of the effectiveness in serving employers performance indicator, and provided recommendations to the Departments with regard to certain aspects of implementation. A few commenters provided input on the administrative burden proposed in the Regulatory Impact Analysis (RIA) of the Joint WIOA Effectiveness in Serving Employers NPRM.
Additionally, a few commenters provided feedback on topics not within the scope of the rulemaking, including earnings data collected by workforce development boards and types of measurable skill gains under WIOA. The Departments appreciate the thoughtfulness of these comments and will address those germane to this final rule in the section-by-section analysis below. However, as explained in the Joint WIOA Effectiveness in Serving Employers NPRM and above, the scope of this rulemaking is limited to amendments to the definition of the effectiveness in serving employers performance indicator and the indicator's use in determining whether sanctions are necessary for failure to achieve adjusted levels of performance as set forth in the proposed rule. Because these comments pertain to other provisions and aspects of the WIOA regulations, they are considered outside the scope of this rulemaking and are not addressed in the section-by-section analysis below.
The final rule implements Retention with the Same Employer as the definition for the effectiveness in serving employers indicator, as proposed in the NPRM, with two changes. First, this final rule removes the requirement that wage records be used to document a participant's employment status for purposes of the effectiveness in serving employers performance indicator, thereby allowing for the use of supplemental wage information as States are permitted to collect and report for purposes of the three employment performance indicators defined by WIOA sec. 116. Second, the final rule definition for effectiveness in serving employers now uses the term “unsubsidized employment” to better align with WIOA statutory language used in WIOA sec. 116 with respect to other performance indicators, specifically referring to unsubsidized employment in the second and fourth quarters after exit, which are key inputs to the definition of Retention with the Same Employer.
Regarding commenters' concerns and requests for clarification about local level implementation, as detailed below, the Departments have determined that WIOA sec. 116(c)(1)(A)(i) requires that all of the primary indicators of performance, including the effectiveness in serving employers performance indicator, must be applied at the local level for the WIOA title I programs (Adult, Dislocated Worker, and Youth).
In the discussion of the regulatory text changes below, the heading references the DOL CFR part and section number. However, ED has identical provisions at 34 CFR part 361, subpart E (under its State VR program regulations) and at 34 CFR part 463, subpart I (under its AEFLA regulations). For purposes of
Section II of the final rule provides the Departments' responses to comments and explains the two changes in the language of the final rule from the proposed rulemaking. Section II.A provides greater background detail on the pilot for effectiveness in serving employers, comments regarding the pilot, commenters' suggestions for other approaches to measuring effectiveness in serving employers that were not part of the pilot, and the Departments' rationale for choosing Retention with the Same Employer as the definition of the effectiveness in serving employer performance indicator. Section II.B discusses comments received on the proposal to modify § 677.155 to adopt Retention with the Same Employer as the definition for the effectiveness in serving employers performance indicator and explains the Departments' decision to finalize the measure with two changes from the NPRM, as suggested by multiple commenters. Section II.C discusses comments on proposed modifications to § 677.190 where the effectiveness in serving employers performance indicator is incorporated into adjusted levels of performance.
This section provides background detail on the pilot for effectiveness in serving employers, comments regarding the pilot, commenters' suggestions for other approaches to measuring effectiveness in serving employers that were not part of the pilot, and the Departments' rationale for choosing Retention with the Same Employer as the definition of the effectiveness in serving employer performance indicator.
In developing the Joint WIOA Effectiveness in Serving Employers NPRM, the Departments reviewed annual report data
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During the pilot,
For PY 2021—the most recent data available at the time the Departments made their decisions for this final rulemaking—the piloted approaches for the effectiveness in serving employers performance indicator provided the following performance results:
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Exhibit 1 summarizes this information and provides further detail about the calculation methodology used to determine the outcome rate for the three approaches.
Throughout the pilot period, only one State reported on a State-specific approach to the effectiveness in serving employers performance indicator.
The Departments assessed the pilot through a DOL contract that resulted in a final report titled
The Departments received several comments regarding the pilot, findings from the Final Pilot Study Report, and alternatives to measuring the effectiveness in serving employers performance indicator. These comments and the Departments' responses are discussed below.
A commenter stated that the Final Pilot Study Report noted the benefit of using multiple measures to understand the WIOA system's effectiveness in serving employers. According to the commenter, the Final Pilot Study Report asserted that because the system uses multiple measures to understand the system's effectiveness in serving workers, it would make sense to use
Over the pilot period and through stakeholder engagements, the Departments heard from employers about the burden of surveys and the preference for a measure that did not rely on survey responses. Because a survey would be too burdensome, the Departments decline to accept the suggestion to use surveys to assess effectiveness in serving employers.
Other commenters voiced support for different approaches, such as tracking work-based learning services, using employer satisfaction surveys, and tracking a suite of data points: number of job orders posted and number of candidates referred per posting; use of incumbent worker training (by percentage of WIOA funds used and number of businesses served); number, array, and availability of business services offered by a workforce development board or American Job Center (AJC); funding passed from workforce development boards or AJCs through to local businesses; or number of businesses engaged with Registered Apprenticeship opportunities through workforce development boards or AJCs.
A different commenter suggested Employer Penetration could be improved by measuring the increase in businesses served rather than the actual penetration rate, using a recording period longer than a quarter, and using penetration figures determined by 3-digit North American Industry Classification System (NAICS) sectors.
The suggested alternative approaches mentioned in the comments, such as Employer Penetration and Repeat Business Customer, were ultimately not selected as indicators of employer satisfaction due to (1) the nature of a very low employer penetration rate compared to all businesses within a State, leading to difficulties in improving the measure over time; and (2) the fact that a satisfied business may not need to partner with the State workforce system again. Additionally, these alternative measures are not based on existing standardized reporting mechanisms, would be impractical to apply to all grantees across core programs, and would not fully track satisfied employers based on measuring only outputs of services provided.
In the Joint WIOA Effectiveness in Serving Employers NPRM, the Departments explained their rationale for proposing the Retention with the Same Employer measure and not proposing either Employer Penetration or Repeat Business Customer as the definition for the effectiveness in serving employers performance indicator. Specifically, the Departments noted in the Joint WIOA Effectiveness in Serving Employers NPRM that Employer Penetration, which reports the percentage of employers using services out of all employers in the State, would have required counts of services provided to employers requiring States and local areas to report unique counts of employer establishments receiving services through the WIOA core programs. While the Employer Penetration definition would have the benefit of capturing the extent to which employers within a State are engaged with WIOA core programs and would provide those programs an incentive to work with additional employers, it would require a more data-intensive analysis than the Retention with the Same Employer approach. Additionally, in the Final Pilot Study Report, the Department found significant weaknesses in this pilot approach including: (1) emphasis on quantity rather than quality or intensity of the employer service provided; (2) reliability issues associated with data entry and the process to count unique establishments; (3) measurement of program output rather than outcome; (4) potential for creation of perverse incentives to prioritize program breadth rather than depth in services; and (5) lack of sensitivity to industry sectors targeted by State and local workforce agencies.
The Repeat Business Customer definition, which reports the percentage of employers receiving services in a year who also received services within the previous 3 years requires a more data-intensive analysis than the Retention with the Same Employer. In the Final Pilot Study Report, the Department also found significant weaknesses in this pilot approach including that it: (1) may provide a disincentive to reach out to new employers; (2) is subject to variation in industry and sector economic conditions; and (3) may require a statistical adjustment model to mitigate the weaknesses and improve implementation and interpretation.
As we summarized in the introduction to Section II.A., comments received in response to the NPRM, the
Regarding employer satisfaction surveys, the Departments note that employer satisfaction surveys introduce a higher level of burden and potentially inconsistent results because of the subjective nature of such surveys and the respondents completing them compared to the quantifiable and verifiable employment data collected and reported for the Retention with the Same Employer metric. Furthermore, during previous webinars and town halls with State workforce agencies, members of the employer community, and other stakeholders that the Departments held in September and October 2014 to inform the development of the Joint WIOA NPRM (80 FR 20609) and the Joint WIOA Final Rule (81 FR 55792, 55848),
The Departments appreciate the commenters' ideas for additional data points to be collected and encourage States to do so where it aids in guiding service delivery policies. Specifically, commenters recommended including collecting and reporting data on: the number of job orders posted and number of candidates referred per posting; use of incumbent worker training (by percentage of WIOA funds used and number of businesses served); number, array, and availability of business services offered by a workforce development board or AJC; funding passed from workforce development boards or AJCs through to local businesses; or number of businesses engaged with Registered Apprenticeship opportunities through workforce development boards or AJCs. The Departments decline to use these additional data points in defining the effectiveness in serving employers indicator because they are not applicable to all of the programs, and in cases where the metric is a count of services they would merely measure the quantity of services provided to employers rather than the effectiveness of those services. The Departments believe these suggestions would measure outputs compared to an outcome. In most cases, an output like the number of services provided may not correlate to the ultimate goal, placing and retaining quality employees in this case, and therefore is not ideal for measuring effectiveness in serving employers.
After careful consideration of public comment opportunities, ongoing State stakeholder engagement efforts,
A commenter recommended that the Departments allow additional time for States to identify and test different ways of measuring participant career progression instead of only employee retention.
After careful consideration of the information gained from the States' reports on using the three piloted approaches, the Final Pilot Study Report's findings, and the comments on the pilot and other potential approaches to defining effectiveness in serving employers, the Departments are finalizing the proposed definition of the effectiveness in serving employers performance indicator as Retention with the Same Employer on a statewide level. As discussed in further detail below in Section II.B, this final rule implements the proposed changes to 20 CFR 677.155(a)(1)(vi) and (c)(6), with one modification.
WIOA sec. 116(b)(2)(A)(i)(VI) applies the same effectiveness in serving employers performance indicator to four non-core programs DOL administers under WIOA title I.
Section 677.155 sets forth the primary indicators of performance that the Departments use to evaluate the performance of WIOA's six core programs, as required by WIOA sec. 116(b)(2)(A)(i). These primary performance indicators apply to the six WIOA core programs (
In this final rulemaking, for the reasons discussed in the NPRM and in Section II.A. above, the Departments have decided to revise § 677.155(a)(1)(vi) to establish Retention with the Same Employer as the standard definition for measuring effectiveness in serving employers, the sixth performance indicator for all WIOA core programs. The final rulemaking removes the general title of “effectiveness in serving employers”;
For the reasons discussed below, in response to multiple comments received to allow for the use of supplemental wage information in the definition of measuring effectiveness in serving employers, this final rulemaking removes references to wage records in § 677.155 that had been proposed in the Joint WIOA Effectiveness in Serving Employers NPRM. This change clarifies that the sources of wage data are not limited, meaning they could be wage records or supplemental wage information. As noted above, the Departments also want to make clear the final rule uses the term “unsubsidized employment” to align the effectiveness in serving employers performance indicator to WIOA statutory language, specifically referring to unsubsidized employment in the second and fourth quarters after exit, which are key inputs to this indicator's definition of Retention with the Same Employer.
Several commenters agreed with the Departments' conclusion that Retention with the Same Employer would be the least burdensome definition of the three piloted measures. Similarly, another commenter agreed that this definition would be the least burdensome approach because States already collect wage records for other WIOA-related reporting and because States would be able to coordinate data aggregation for the six core programs more easily with this measure than with the other two piloted measures. Another echoed this sentiment, adding that the measure would be based on data that is objective, already collected by many States, and that can be standardized across States and territories.
Other commenters shared these concerns, asserting that programs should not be punished if participants' employment growth is with a different employer from the one with which the individual is initially placed and that WIOA participants should not be trapped in a job for the sake of WIOA programs' performance indicators.
Similarly, one commenter expressed concern that by incentivizing placing individuals in positions with limited mobility, the measure could serve to perpetuate or worsen racial and economic inequities or lead to worker exploitation, as well as further disadvantage job seekers with criminal records, undocumented immigrants, and individuals receiving income supplements conditioned on engaging in work activities.
Another commenter reasoned that while retention indicates some level of employer satisfaction, it may not be the desired outcome for the job seeker, who may be in a low-wage position or need to work multiple jobs to earn a living wage.
Another broad theme of opposition to the proposed measure is that Retention with the Same Employer primarily measures the success of a job seeker. A commenter asserted that success according to the proposed measure requires ongoing support of job seekers, not employers, which WIOA programs often provide, but that the employer inputs, such as wages, working conditions, and workplace culture, are not related to WIOA services. Similarly, another commenter asserted that the indicator would not measure or identify when an employer receives a service, stating that it would primarily reflect intervention with a client.
Several commenters asserted that using the proposed definition could disincentivize employers to support and train employees in such a way that enhances employees' ability to advance into a better job with another employer. Other commenters asserted that a performance indicator that prioritizes Retention with the Same Employer would be particularly misaligned with the current economy, in which employers are offering bonuses, higher salaries, and other benefits to attract talent. Another commenter remarked that high costs of living have forced many employees to move from expensive metropolitan areas to less expensive rural areas, thus leaving their jobs.
Several commenters raised concerns that Retention with the Same Employer is not a good fit for newer and smaller employers, younger workers, and certain sectors of the economy. One commenter said that while it considered the proposed definition to be the best of the three piloted definitions, measuring effectiveness in serving employers through Retention with the Same Employer would disincentivize programs from working with new or small employers because their employee retention history may be unknown and, thus, they may be seen as a risky partner.
A couple of commenters asserted that the proposed definition would not be the best measure of effectiveness in serving employers for younger generations, who are increasingly populating the workforce, place a high value on work/life balance, and will readily leave a position for a better opportunity, or for gig-economy workers, who change jobs frequently in search of better opportunities.
One commenter expressed concern that the proposed measure could negatively capture seasonal employment noting that some employers require seasonal employment so retention in the second and fourth quarters is not assessing the effectiveness of services provided to these employers. Similarly, another commenter noted that the metric does not recognize instances in which rapid replacements or temporary positions are necessary for fulfillment. The commenter noted that for those employers, skills training and WIOA services have little influence over retention rates. Similarly, another commenter asserted that the proposed measure would reflect negatively on WIOA programs in States where much of the workforce is transient.
The Departments acknowledge that individuals may leave for higher wages with a new employer, but States can seek to address these concerns in a variety of ways that are beneficial to both the employer and the participant, such as striving to find quality job placements or working with employers to develop career pathways and good jobs that more effectively incentivize participants they have hired to maintain their employment with the same employer. Despite these concerns and as discussed more fully in Section II.A., the Departments are adopting the Retention with the Same Employer definition of the indicator for multiple reasons, specifically because it: is the least burdensome since it uses data elements reported by States for other performance indicators; has a stable data collection mechanism in that the requisite data are already reported via an OMB-approved information collection request; aligns with other employment performance indicators in that it uses similar terminology and data elements; and demonstrates maintained relationships between employers and employees, thereby demonstrating that the services provided by the WIOA core programs not only meet the long-term needs of the participants but also the needs of employers in each State.
Another example is WIOA sec. 134(c)(3)(E), which requires that priority be given to recipients of public assistance, low-income individuals, and individuals who are basic skills deficient (including English language learners) when individualized career services and training services are provided using funds allocated to a local area for the WIOA title I Adult program. This priority of service requirement applies when providing these services under the title I Adult program at all times, regardless of the amount of funds available to provide services in the local area. WIOA requires States to develop criteria, policies, and procedures for applying this priority for purposes of the title I Adult program, including monitoring local areas' compliance with this priority (
Effectiveness in serving employers is one of six indicators of performance under WIOA; it is the only shared
The Departments acknowledge that individuals may leave for higher wages with a new employer, but there are a variety of ways in which States can seek to address these concerns in ways that are beneficial to both the employer and the participant, such as striving to find quality job placements or working with employers to develop career pathways and good jobs that more effectively incentivize participants they have hired to maintain their employment with the same employer. The Departments encourage provision of WIOA services to new and small employers to enhance employee retention. Examples of such services include, but are not limited to, the provision of labor market information to demonstrate what constitutes competitive wages and benefits in their industry, working with employers to develop career pathways for employees to pursue and advance in employment, providing technical assistance on the hiring of individuals with disabilities (including the requirements of the Americans with Disabilities Act), and sharing other research on the factors that increase retention rates. The Departments note that there is no restriction on working with new and small employers and expect that Retention with the Same Employer will lead to better services.
Another broad theme that commenters raised in opposition to the proposed measure was that it would not measure all of the aspects of effectiveness in serving employers. Their primary assertions were that outcomes may be skewed due to the inclusion or exclusion of specific populations, wage sources, or employers in the calculation.
Commenters provided feedback regarding the pools of individuals and employers being measured in the proposed Retention with the Same Employer approach. They suggested that only employers that received a direct WIOA service be measured, that only targeted industries be included, that businesses that issue Worker Adjustment and Retraining Notification (WARN) Act notices be exempted, that participants employed by companies impacted by a qualified plant closing or mass layoff identified through the WARN Act Notification process if they lose or change employment locations be excluded, that employers that close or conduct layoffs during the reporting period be excluded from the measure's calculations, that the metric not include changes in employer caused by firms going bankrupt or downsizing, or that the measure extend beyond WIOA-funded programs.
Another comment mentioned that the proposed rule will solely focus on dislocated workers and that the greater public workforce system will suffer as this rulemaking will not encourage collaboration where dislocated workers are not present.
Some commenters noted that employers may have received no services. One commenter argued that while retention indicates some level of employer satisfaction, it does not speak to what business service an employer received. Similarly, a few commenters asserted that the performance indicated by the measure might not be a result of employers receiving a direct service from the workforce development system. Another commenter stated that the measure would say little about actual interactions between employers and their local workforce development board.
One commenter asserted that the proposed measure would not reflect the effectiveness of direct employer interaction, because placement of participants at a specific employer is not the result of employer service delivery but of credential skills obtained through tuition assistance, and that the employers reflected in the measure may not have sought or received a service but simply had a job opening filled by a program participant. Several commenters asserted that the proposed measure has no mechanism for linking the retention of a particular employee with instances of employer services being provided, therefore only indirectly reflecting effectiveness in
The commenters further stated that the measure can be calculated without any employer services data. Other commenters stated that Retention with the Same Employer does not capture all services to an employer. A commenter critical of the proposed measure asserted that there are too many services provided to employers that are unrelated to a program-funded job seeker, and furthermore that employment status at program exit is unknown to local program operators. The commenter also asserted that the measure would not truly capture effectiveness because it is limited to program-funded job seekers and would not evaluate all employer services and is instead primarily a retention metric for WIOA-funded job seekers.
Similarly, one commenter expressed opposition to the proposed measure, arguing that because AJCs and workforce development boards refer a universal pool of candidates for job openings, it would be inappropriate to only measure success for WIOA-enrolled customers. Other commenters similarly criticized the proposed indicator because, while workforce systems will provide services to any job seeker, the only employers that would be captured are those that a WIOA-funded job seeker exits a program to be employed by. Another commenter noted that Retention with the Same Employer does not speak to acuity of placement (for example, how difficult the position was to fill, how in demand the position is, whether the role was seasonal specific and not intended to maintain retention, rarity of skill set, or time to hire). A different commenter relatedly suggested that combining Retention with the Same Employer with some measure of acuity (such as skill/education level of the position or time to placement) and the ability to filter for those employers who received a business service would improve the measure.
Regarding the pool of participants measured in this indicator, one commenter mentioned that this metric only utilizes dislocated workers, but that is incorrect. The indicator will include all WIOA core program participants, regardless of employment status at time of participation or program enrollment.
Regarding whether the proposed indicator measures all aspects of effectiveness in serving employers, the Departments believe there are many aspects to employer effectiveness, some of which are very difficult to quantify and report. Therefore, the Departments chose one aspect of effectiveness that employers stated would be beneficial and can be measured across programs and States with minimal burden to employers—employee retention.
The Retention with the Same Employer calculation of effectiveness in serving employers is not restricted to employers who received a direct employer service through a WIOA core program. However, the services delivered by core programs, whether to participants or to the employers themselves, routinely benefit the broader employer community by increasing basic skills of the candidate pool, enhancing free job posting and search tools, and preparing workplaces and job seekers with disabilities for successful employment.
The Departments disagree with the suggestion that the metric should exclude cases where the participants are employed with employers that have a mass layoff or issue WARN notices. We did not exclude these employers because it is not practical to exclude them from the measure calculation. This is due to the limitations of the information that is currently available in State wage records, which will be the typical source for States to collect the required inputs for this metric. To the extent that States are concerned that this could impact results, the Departments anticipate the statistical adjustment model
With regard to the concern that the definition of Retention with the Same Employer only indirectly reflects the effectiveness in serving employers and is not useful in informing strategic action to improve performance, the Departments note that this metric does not prevent States from including the information they feel is necessary in their strategic plans. States should incorporate labor market information, such as which occupations and industries are in demand, in their strategic plans. The Departments believe that information such as whether WIOA participants retain employment is important data to consider when States strategically plan outreach, business services, and participant service delivery design. Therefore, in terms of strategic planning at the State or local level, this metric will indicate the types of jobs participants are entering and retaining employment with, which may provide some indication of job quality. If a State's outcome results for the Retention with the Same Employer metric are below target, strategic policies can be made to ensure participants are entering long-term sustainable unsubsidized employment at a higher rate.
With regard to concerns that the Retention with the Same Employer indicator does not measure acuity of the WIOA participant's job placement, the Departments continue to acknowledge that this metric is one of many aspects of assessing effectiveness in serving employers. As noted above, States are encouraged to measure effectiveness in serving employers in other methods that are not required to be submitted to the Departments for performance accountability.
One commenter expressed opposition to the proposed definition, asserting that it will be impacted by variables outside the control of State workforce agencies, such as “talent migration.” Similarly, another commenter asserted that many reasons that an employee might choose to leave a position within two quarters have little to do with how effectively the employer was served by the system.
One commenter asserted that the proposed measure is not a good indicator of WIOA program performance because it is significantly impacted by employers' choices as to wages, working conditions, and workplace culture, over which WIOA programs have little control. Another commenter expressed similar concerns, asserting that retention depends on employers and employees learning to communicate effectively and employees getting along, adapting to company culture, acquiring new skills, and being satisfied with their job, which AJCs cannot control. A third commenter echoed these concerns, adding that factors such as labor shortages likely encourage employees to switch employers.
One commenter stated that long-term employee retention is not solely about initial placement after exiting a program, asserting that commitment is required by both the employee and employer, and concluding that as a measure of effectiveness in serving employers, Retention with the Same Employer would not be able to prove or disprove the success of a program.
Another commenter asserted that the proposed measure could deter local workforce development board and one-stop center staff from taking a customer-based approach to career services and thus skew the results of the statistical adjustment model.
The Departments acknowledge the challenges related to developing an indicator that reflects the efforts of multiple programs, avoids additional collection and reporting burden, and results in stable data that can be assessed across programs. The Departments note that Retention with the Same Employer has the benefit of aligning with two of the three employment-related performance indicators, specifically the employment in the second and fourth quarters after exit indicators that measure the employment outcomes of program participants. As such, it promotes the statutory purpose of WIOA to “support the alignment of workforce investment . . . in support of a comprehensive, accessible, and high-quality workforce development system in the United States.” WIOA sec. 2(2). The alignment of definitions, data elements, and performance indicators with one another, as the Departments have done with the Retention with the Same Employer metric for measuring the effectiveness in serving employers indicator, improves the comprehensiveness of the workforce development system in each State and nationwide. Information such as whether WIOA participants are retained in job placement is important data to
Commenters also said that Retention with the Same Employer was not the best indicator of a program's success in serving employers. Retention with the Same Employer is a measure of the workforce system's alignment with employer needs and is measured during the second and fourth quarters after a participant exits WIOA programs. The Departments acknowledge that individuals may leave for higher wages with a new employer, but there are a variety of ways in which States can seek to address these concerns that are beneficial to both the employer and the participant, such as striving to find quality job placements or working with employers to develop career pathways and good jobs that more effectively incentivize participants they have hired to maintain their employment with the same employer.
The Departments acknowledge that the limitations for Retention with the Same Employer could include the unintended consequence that this approach may be at odds with an employee seeking a higher paying job or employment benefits. It is possible that a significant percentage of participants will not be counted in the numerator for this indicator. However, many of those participants who have left their current employer for another will contribute toward improved performance on employment-based indicators, such as median earnings. Moreover, as discussed above, the Departments believe that Retention with the Same Employer accomplishes the goals of WIOA with the least burden on the States.
Regarding the comment that service delivery approaches taken by local workforce development boards and one-stop staff to assist employers will skew the statistical adjustment model outcomes, the Departments disagree and note that the model does in fact account for results of these employer engagements.
Effectiveness in serving employers is one of six indicators of performance under WIOA; it is the only shared indicator across core programs, and the only indicator that is not designed to measure job seeker outcomes. Local workforce development boards and one-stop center staff delivering services solely focused on the effectiveness in serving employers indicator without regard to job seeker needs would be at risk of failing to meet other areas of program performance. The statistical adjustment model will account for economic factors affecting the Retention with the Same Employer indicator in the State and local areas. Therefore, the Departments have concluded that States will still focus on providing quality services to job seekers.
Some commenters were concerned that local providers do not know the status of a participant's employment at exit. A few commenters stated that workforce programs may not receive hiring outcome information and may be unable to report information for Wagner-Peyser Act participants.
Another commenter asked how common exit would apply to this measure and which programs' exit date will be used to determine this measure when an individual participant is co-enrolled in more than one core partner program.
One commenter recommended that the Departments explore methods of capturing data that demonstrate employment success for self-employed individuals and individuals employed by the Federal Government. Relatedly, another commenter recommended not limiting the performance indicator to individuals with wage records but rather expanding it to include participants whose employment can be verified by other means, specifically the same supplemental data sources as are permitted for the other primary performance indicators, such as information provided to case managers. Other commenters cautioned that wage records are not readily available for Federal, military, and self-employment, asserting that this would lead to negative performance results in States with high proportions of individuals seeking these types of employment or necessitate statistical adjustments. Similarly, another commenter questioned if Federal agencies would provide additional wage data sources on individuals employed by the military, Postal Service, or Federal Government.
Some commenters discussed whether State Wage Interchange System (SWIS) data could be used to collect and report on the proposed measure, given that SWIS data show how many employees work across State lines, a figure that becomes increasingly important in the post-pandemic shift to remote work. Another commenter expressed concerns about being able to match employers consistently in wage data and noted that during the pilot period their concerns over the Retention with the Same Employer measure caused them to choose the Repeat Business Customer and Employer Penetration rates for reporting. The commenter noted that the approach had the lowest adoption rate (per the Joint WIOA Effectiveness in Serving Employers NPRM) of the three pilot measures, suggesting that other States may have shared the commenter's concerns about choosing it.
Regarding the commenter's observation that the fewest number of States selected Retention with the Same Employer measure for the pilot and the commenter's interpretation that this lowest adoption rate indicates that States did not think it was a useful measure, the Departments did not inquire why States chose certain measures during the pilot period, and note that there is no evidence that a lower adoption rate correlates with a lack of usefulness in measuring effectiveness in serving employers in the State. The Departments note that Retention with the Same Employer was the easiest measure to implement based on it being calculated from existing PIRL elements. Therefore, it is plausible that fewer States chose to pilot this measure because they already knew how to calculate this measure and would not have needed to test how to implement it in their State. They may have wanted to assess how the two other pilot measures would work. The Departments cannot determine if this was the case, but it seems reasonable that this possibility could have led to the lower adoption rate for the Retention with the Same Employer measure.
However, the Departments acknowledge that certain categories of employment, such as entrepreneurial employment, Federal employment, employment with the U.S. Postal Service and the military, and farmwork, are not reflected in State UI wage record databases. Additionally, participants are not required to provide Social Security numbers, which are needed to use wage records, to obtain services and some participants may be reluctant to share this information. WIOA's regulations and implementing guidance authorize the use of supplemental wage information for the calculation of the median earnings indicator. See TEGL No. 26-16.
To ensure that effectiveness in serving these additional employers is assessed, the Departments concur with commenters that the Retention with the Same Employer measure should be expanded to include the number of participants with wage records or supplemental wage information who exit during the reporting period and were employed by the same employer during the second quarter after exit and the fourth quarter after exit DIVIDED by the number of participants with wage records or supplemental wage information who exit and were employed during the second quarter after exit. Organizations collecting supplemental wage information for the purposes of calculating Retention with the Same Employer must be able to ascertain that the participant's wage information reflects the same establishment (which may include tax documents, payroll records, employer records, and follow-up surveys from program participants) in both the second and fourth quarters after exit.
Regarding the commenter's question about common exit, the implementation of this definition for the effectiveness in serving employers performance indicator will not alter existing policy around common exit dates. The Departments will release future guidance regarding implementation of the common exit date for participants enrolled in multiple core programs.
Another commenter was concerned that retention of employees may vary based on “right-to-work” rules, working conditions, pay and benefits, production volumes, or any number of business factors that occur well after interaction with the workforce system. Commenters also voiced concerns that variations in economic conditions would impact States' ability to meet targets for the effectiveness in serving employers indicator because of downturns in the local economy and specific industries that were in-demand and used by the system are suddenly experiencing layoffs.
The Departments recognize that there are numerous factors in a participant's ability and willingness to remain employed with the same employer, including those mentioned by the commenter, such as pay/benefits, work volumes, temporary jobs, industry and economic variations, and unexpected layoffs. Because of this, it is very likely a State's suggested target from the statistical adjustment model will never be 100 percent, just like the other five indicators of performance.
As noted earlier, there are a variety of ways in which States can seek to address these concerns that are beneficial to both the employer and the participant, such as striving to find quality job placements or working with employers to develop career pathways and good jobs that more effectively incentivize participants they have hired to maintain their employment with the same employer.
Regarding the comments on the effects of economic conditions, the Departments agree that many circumstances affect an employer's retention of employees, some of which may be outside the purview of WIOA services, including the general economy and business landscape of an area. The Departments acknowledge that different States experience different economic conditions. As noted above, the statistical adjustment model will account for economic factors impacting Retention with the Same Employer outcomes for WIOA core programs, so that no State is unfairly impacted by its economic conditions.
Another commenter recommended that the Departments consider labor market trends or other relevant information in a State or region when negotiating performance for individuals who leave a position for a higher wage or better benefits. Several commenters similarly recommended adjusting the performance indicator to count individuals who leave positions and achieve higher wages, better benefits, or better working conditions as successes.
One commenter raised cautions “that [the Retention with the Same Employer measure] is subject to variation in industry and sector economic conditions, and that it may have a negative impact on sensitivity to industry sectors targeted by State and local workforce agencies.” Another commenter stated that the proposed measure could lead to employers “cherry-picking” employees who they believe could lead to higher retention rates. The commenter suggested that to mitigate this potential effect, the Departments could require States to submit reports on the demographics of WIOA participants to ensure there are no negative changes by race, ethnicity, or gender among workers between reporting periods that do not correspond to similar changes in the local labor market.
To avoid disincentivizing the use of WIOA funding for transitional jobs, a commenter recommended excluding such jobs from the performance indicator. The commenter cited studies showing that transitional job programs have significant positive impacts for workers, families, communities, and employers, such as reducing poverty rates substantially, particularly for Black and Hispanic workers.
Another commenter recommended increasing access to and sharing of information between workforce partners, to enable agencies to track employer retention information, and developing best practices and a unified reporting structure among WIOA agencies.
Additionally, as discussed throughout this document, the Departments note that effectiveness in serving employers is oriented to the employer experience rather than the participant experience. The proposed metric may encourage promotional opportunities from within the original employer.
For these reasons, the Departments believe the established time frames are appropriate to demonstrate Retention with the Same Employer.
Regarding commenters' concerns about labor market trends, including variations in industry and sector economic conditions, the Departments are aware of external factors that influence the outcome of this measure. The Departments will adjust for those external factors in the statistical adjustment model, and those adjustments will play a key role when the Departments determine they have sufficient data to produce reliable results for assessing performance of the effectiveness of serving employers indicator.
The Departments appreciate comments regarding participants who leave positions for higher paying job opportunities. While this is a benefit to
The Departments considered the alternative definition of Retention with the Same Employer commenters suggested—including as a success the individuals who have higher wages in the fourth quarter after exit even though they are working at a different employer. However, the Departments decided not to adopt this definition because in these situations, an employer still has a need to fill an open vacancy. The Departments recognize that while this is a benefit to participants, it is not assessing how the workforce system served employers. Therefore, the Departments determined this is not an appropriate method of assessing the effectiveness in serving employers.
Effectiveness in serving employers is measured after the participants exit a program. Regarding potential exclusion of participants placed in transitional jobs, the Departments note that transitional jobs are a participant level service that would prevent a participant from exiting, and therefore are not included in the calculation of the measure. Therefore, this definition of the indicator does not disincentivize use of transitional jobs as a service strategy.
Regarding other potential exclusions for the measure, consistent with the Departments' rationale in Section II.A. above, the Departments believe that simplicity in the measure calculation is important, both in terms of collecting data that reflect the real world of employment, and consistency with the other participant employment and earnings indicators of performance. Therefore, the measure calculation will not include exclusions other than those mentioned for existing WIOA indicators of performance. Additionally, the commenter mentioned benefits to the participant, but not to the employer who experiences turnover and needs to re-fill a position. The Retention with the Same Employer measure advocated for by business customers and employers in stakeholder engagements, alignment with the other WIOA participant employer performance measures/indicators, and support due to strengths over weaknesses of the measures assessed in the Final Pilot Study Report can best meet the system's goals for assessing and ensuring the effectiveness in servicing employers, the workforce system's dual or equal customer served by the workforce system.
Regarding analysis of this metric by race, ethnicity, or gender, the Departments currently collect these data elements and will report outcomes by each of these. The existing WIOA indicators of performance are already reported by these data elements in the Departments' respective annual reports.
After consideration of the comments, as discussed above the Departments have decided to revise the definition of Retention with the Same Employer in this final rule to remove reference to wage records, thereby permitting States to include individuals in the metric who may not have wage records but who are still employed with the same employer in the second and fourth quarters after exit. This revision allows States to use supplemental wage information to capture these individuals.
Final § 677.155(a)(1)(vi) and (c)(6) implement the changes as outlined in the proposed rule with one modification to remove the term “wage records,” thereby allowing for the use of supplemental wage information, and adds a clarification that participants tracked by this performance measure are those in unsubsidized employment during the second quarter who exit from the program. While the nature of wage records would have limited this indicator to unsubsidized employment without explicitly stating the requirement, the removal of the wage record requirement, thereby enabling States to use supplemental wage information for reporting purposes, necessitates the addition of language limiting the indicator to those in unsubsidized employment in order to align this indicator with the other employment-based indicators, all of which track the percentage of participants in unsubsidized employment at either the second or fourth quarter after exiting from a program. In so doing, the Departments ensure that the employment reported, for purposes of assessing the effectiveness in serving employers, is that which is consistent with the purpose of WIOA sec. 2 (
Currently, 20 CFR 677.190 details the circumstances under which sanctions are applied when WIOA core programs fail to achieve adjusted levels of performance. Paragraph (c) sets forth criteria the Departments use to determine which States have met adjusted levels of performance: (1) the overall State program score (§ 677.190(c)(1)); (2) the overall State indicator score (§ 677.190(c)(3)); and (3) the individual indicator score (§ 677.190(c)(5)).
In this final rulemaking the Departments revise § 677.190 to include the effectiveness in serving employers performance indicator in the criteria for determining if a State has failed to meet adjusted levels of performance as part of the overall State indicator score. Final § 677.190 establishes conforming language regarding the assessment of effectiveness in serving employers as a statewide performance indicator, as expressed in the Joint WIOA Final Rule, and the definition for effectiveness in serving employers proposed in § 677.155(a)(1)(vi) and (c)(6). Final § 677.190(c)(1) excludes the effectiveness in serving employers performance indicator from the calculation of an overall State program score, which compares a program's results regarding the other primary indicators of performance with the adjusted levels of performance for that program. This final rulemaking adds two paragraphs to § 677.190(c)(3) to ensure the effectiveness in serving employers performance indicator's sole use as a shared statewide indicator. Final § 677.190(c)(3)(i) specifies that the overall State indicator score is the average of the percentages achieved of the adjusted levels of performance by all the core programs on the performance indicator and would exclude the effectiveness in serving employers performance indicator from this calculation. Final § 677.190(c)(3)(ii) adopts in regulations the recommendation in the joint guidance that one core program report performance data for the effectiveness in serving employers performance indicator on behalf of all six core programs. Final § 677.190(c)(3)(ii) also establishes that the indicator would be assessed only as an overall State indicator score, the State indicator score for effectiveness in serving employers is calculated as the statewide percentage
The Departments received no comments on the proposed exclusion of effectiveness in serving employers from the overall State program score in § 677.190(c)(1) and the proposed exclusion of effectiveness in serving employers when calculating individual indicator scores in § 677.190(c)(5). The Departments received several comments regarding provisions for the statewide nature of the effectiveness in serving employers performance indicator in § 677.190(c)(3)(ii), application of this indicator at the local level, performance level negotiation and the statistical adjustment model, and inclusion of the effectiveness in serving employers indicator in sanctions determinations. These comments are discussed below. No changes are made to proposed § 677.190; the final rule implements § 677.190 as proposed.
Additionally, since this is an annual measure, with alignment of performance accountability reporting to consolidate reporting across WIOA core programs and alleviate variation in deadlines for common reporting, the Departments do not consider individual program reporting deadlines to be an issue. Finally, the Departments note that all reporting is due to the agencies on the same date so that there should not be issues with reporting deadline differences.
The Departments note that there will be challenges in developing a statistical adjustment model for any definition of this measure and there is no reason to believe the development would be any less challenging if the Departments were to select an alternative definition for this indicator or to assess this indicator by program.
States are not required to collect this information using an SLDS. States are
With regard to concerns about reporting by title II programs for a single, statewide outcome for all WIOA core programs on the Retention with the Same Employer measure, the State's title II program would be expected to provide the data it has collected for title II participants who were employed in the second and fourth quarters to the State agency responsible for reporting on the effectiveness in serving employers indicator. If the State's title II program does not have access to the information required to determine Retention with the Same Employer through a data match, the State agency responsible for reporting on the indicator would use the data provided by the State's title II program to determine Retention with the Same Employer.
The Departments note that sanctions only occur after 2 consecutive years of performance failures for the same score. Furthermore, the implementation of performance assessments requires a minimum of 2 years of data before the Departments would use a statistical adjustment model in the negotiations process, and any potential implementation of performance assessments would be conditional upon having sufficient data to produce an objective statistical adjustment model. The metric uses existing data collected in the PIRL; States have been required to collect this information since the inception of the jointly administered performance accountability system established in WIOA sec. 116. The Departments believe there is sufficient time built into the implementation process and are not extending the implementation time frame currently.
One commenter stated that the proposed measure would require additional statistical adjustments, that it would be subject to variations based on sector and economic conditions, and that it would not reflect current workforce trends like increases in self-employment. Another commenter expressed similar concerns about the measure's ability to accurately capture effectiveness in serving employers given particular economic conditions and differences across industries. A third commenter likewise asserted that the indicator would be subject to fluctuating economic conditions.
One commenter recommended that the Departments consider additional factors in the final rule, including: factors that can affect the median tenure of workers, which is lower for younger people; difficulty in accounting for differences among regions, such as areas with relatively greater or fewer employment opportunities; inconsistencies among reporting platforms; differences in tracking timelines and reporting requirements among workforce partners; and the possibility that employer retention rates can increase or decrease without changes in levels of employer services being provided.
The Departments made no changes to proposed § 677.190; the final rule implements § 677.190 as proposed.
Under Executive Order (E.O.) 12866, the Office of Information and Regulatory Affairs (OIRA) determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB.
E.O. 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 qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
Section III.A.2 provides a summary of the results of the RIA. Section III.A.3 describes the need for the final rule, and Section III.A.4 describes the process used to estimate the costs and cost savings of the final rule and the general inputs used, such as wages and number of affected entities. Section III.A.5 explains how the provisions of the final rule will result in quantified costs and cost savings and presents the calculations the Departments used to estimate them. In addition, Section III.A.5 describes the qualitative benefits of the final rule. Section III.A.6 summarizes the estimated first-year and 10-year total and annualized costs, cost savings, and net costs of the final rule. Finally, Section III.A.7 describes the regulatory alternatives considered when developing the final rule.
The Departments estimate that the final rule will result in costs and cost savings. As shown in Exhibit 2, the final rule is expected to have an annualized quantified cost of $44,208 and a total 10-year quantifiable cost of $310,497 at a discount rate of 7 percent.
The cost of the final rule is associated with rule familiarization and the requirement to calculate and report Retention with the Same Employer for the effectiveness in serving employers performance indicator for 57 States and 78 VR agencies.
The Departments cannot quantify the benefits of the final rule; therefore, Section III.A.5 (Subject-by-Subject Analysis) describes the benefits qualitatively.
Comments that the Departments received regarding the RIA set forth in the proposed rule are summarized and responded to below.
In the Joint WIOA Final Rule, the Departments described a phased approach, which included a pilot study, to defining in regulation the sixth statutory performance indicator—effectiveness in serving employers—required by WIOA. This final rulemaking is necessary to complete implementation of the performance accountability requirements as discussed in the Joint WIOA Final Rule and required by statute. Specifically, States, under the Departments' joint guidance, piloted the following definitions for the effectiveness in serving employers performance indicator:
• Retention with the Same Employer: Percentage of participants with wage records who exit from WIOA core programs and were employed by the same employer in the second and fourth quarters after exit.
• Repeat Business Customer: Percentage of employers who have used WIOA core program services more than once during the last three reporting periods.
• Employer Penetration: Percentage of employers using WIOA core program services out of all employers in the State.
The Departments are establishing Retention with the Same Employer as the standard definition of the effectiveness in serving employers performance indicator to complete implementation of the WIOA performance accountability requirements to assess the effectiveness of States and local areas in achieving positive outcomes.
The Departments estimated the costs and cost savings of the final rule relative to the existing baseline (
The baseline consists of the combination of piloted approaches for effectiveness in serving employers that States collected in 2021 and would be expected to continue to report in the absence of this final rule. The baseline uses DOL historical data on the number of States that report each combination of the three piloted approaches for the effectiveness in serving employers performance indicator. Exhibit 3 displays DOL data from 2017 through 2021 on the existing effectiveness in serving employers approach combinations. The Departments used the most recent year of State data reported for PY 2021 to define the existing baseline of States reporting combinations of approaches to the effectiveness in serving employers performance indicator.
In accordance with the RIA guidance articulated in OMB's Circular A-4 and consistent with the Departments' practices in previous rulemakings, this RIA focuses on the likely consequences of the final rule (
Exhibit 4 presents the number of entities that are expected to be affected by the final rule. The Departments provide these estimates and use them throughout this analysis to estimate the costs and cost savings of the final rule.
In Section III.A.5
The Departments' analysis below covers the estimated costs and cost savings of the final rule.
The following sections describe the costs of the final rule.
State- and local-level DOL programs, State- and local-level AEFLA programs, and State VR agencies will need to familiarize themselves with the new regulations. Consequently, this will impose a one-time cost in the first year.
To estimate the first-year cost of rule familiarization at the State level, the Departments multiplied the estimated number of management analysts (1) by the time required to read and review the rule (1 hour), and by the applicable hourly compensation rate ($63.20/hour). We multiplied this result by the sum of the number of States (57) for the DOL programs, the number of States (57) for the AEFLA programs, and the number of VR agencies (78). This calculation yields $12,135 in one-time labor costs, which is equal to an average annual cost of $1,214 over the 10-year analysis period.
At the local level for the DOL programs, the Departments multiplied the estimated number of management analysts (1) by the time required to read and review the rule (1 hour), by the applicable hourly compensation rate ($78.06/hour), and by the number of local WDBs (580). This calculation yields $45,276 in one-time labor costs, which is equal to an average annual cost of $4,528 over the 10-year analysis period.
At the local level for the AEFLA programs, the Departments multiplied the estimated number of management analysts (1) by the time required to read and review the rule (1 hour), by the applicable hourly compensation rate ($78.06/hour), and by the number of local AEFLA providers (1,719). This calculation yields $134,188 in one-time labor costs, which is equal to an average annual cost of $13,419 over the 10-year analysis period.
The sum of these costs yields a total one-time labor cost of $191,600 for State- and local-level DOL programs, State- and local-level AEFLA programs, and State VR agencies to read and review the new rule. Over the 10-year period of analysis, these estimated one-time costs result in an average annual cost of $19,160 undiscounted, or $22,461 and $27,279 at discount rates of 3 and 7 percent, respectively. Exhibit 6 summarizes the above calculations.
WIOA sec. 116(b)(2)(A)(i)(VI) provides that the sixth primary indicator of performance will be an indicator that measures program effectiveness in serving employers, which WIOA sec. 116(b)(2)(A)(iv) directs the Departments to establish. Currently, under the Departments' joint guidance, States must report at least two of the following three approaches to measuring effectiveness in serving employers: Retention with the Same Employer, Employer Penetration, and Repeat Business Customer. All States will be required to adopt the same approach to measure effectiveness in serving employers: Retention with the Same Employer. Seventeen States do not currently report the Retention with the Same Employer approach to the effectiveness in serving employers performance indicator.
At the Federal level for the DOL core programs, the Departments estimate the one-time labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance development (8 hours) and by the hourly compensation rate ($93.82/hour). This calculation results in a one-time labor cost of $751.
The Departments estimated DOL's annual labor costs for calculating and reporting Retention with the Same Employer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($93.82/hour). This calculation results in an annual labor cost of $375.
At the State level for the DOL core programs, the Departments estimated the one-time labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of management analysts (one) by the time required for programming (6 hours) and by the hourly compensation rate ($63.20/hour). We multiplied the labor cost ($379) by the number of States (57) to estimate this one-time cost at $21,616.
The Departments estimated the State-level DOL core programs' annual labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of management analysts (one) by the time required for Federal reporting (4 hours) and by the hourly compensation rate ($63.20/hour). We multiplied the labor cost ($253) by the number of States (57) to estimate this annual cost at $14,411.
At the Federal level for the AEFLA program, the Departments estimated the one-time labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance development (8 hours) and by the hourly compensation rate ($93.82/hour). This calculation results in a one-time labor cost of $751.
The Departments estimated AEFLA's annual labor cost for calculating and reporting Retention with the Same Employer at the Federal level by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($93.82/hour). This calculation results in an annual labor cost of $375.
At the State level for the AEFLA program, the Departments estimated the one-time labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of management analysts (one) by the time required for programming and data collection (6 hours) and by the hourly compensation rate ($63.20). We multiplied the labor cost ($379) by the number of States (57) to estimate this one-time cost at $21,616.
The Departments estimated the State-level AEFLA program's annual labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of management analysts (one) by the time required for Federal reporting (4 hours) and by the hourly compensation rate ($63.20/hour). We multiplied the labor cost ($53) by the number of States (57) to estimate this annual cost at $14,411.
At the Federal level for the VR program, the Departments estimated the one-time labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance development (8 hours) and by the hourly compensation rate ($93.82/hour). This calculation results in a one-time labor cost of $751.
The Departments estimated the annual labor costs associated with calculating and reporting Retention with the Same Employer at the Federal level for the VR program by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($93.82/hour). This calculation results in an annual labor cost of $375.
At the State level for the VR program, the Departments estimated the one-time labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of management analysts (one) by the time required for programming (6 hours) and by the hourly compensation rate ($63.20/hour). We multiplied the labor cost ($379) by the number of VR agencies (78) to estimate this one-time cost at $29,580.
The Departments estimated the State-level VR program's annual labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of management analysts (one) by the time required for Federal reporting (4 hours) and by the hourly compensation rate ($63.20/hour). We multiplied the labor cost ($253) by the number of VR agencies (78) to estimate this annual cost of $19,720.
The sum of these one-time costs of the retention measure yields $75,064 for individuals from the Federal- and State-level DOL core programs, AEFLA program, and VR program. In addition, the sum of the annual costs associated with calculating and reporting Retention with the Same Employer for these entities yields $49,667 per year. Exhibits 7a and 7b summarize the above calculations.
The costs in Exhibits 7a and 7b represent the costs for all 57 States to report the Retention with the Same Employer approach to the effectiveness in serving employers performance indicator. Currently, 40 States already report Retention with the Same Employer. The remaining 17 States will face costs with having to start reporting Retention with the Same Employer. We therefore multiply the total one-time costs ($75,064) and annual costs ($49,667) by the 29.8 percent of States not currently reporting the retention measure (17 out of 57) yielding $22,387 in one-time costs and an additional $14,813 in annual costs to increase the number of States reporting the retention measure from 40 to all 57.
The estimated total cost from requiring all States to report Retention with the Same Employer over the 10-year period is $155,704 undiscounted, or $137,723 and $118,898 at discount rates of 3 and 7 percent, respectively, with an annualized cost over the 10-year period of $16,145 and $16,928 at discount rates of 3 and 7 percent, respectively.
The following sections describe the cost savings of the final rule.
The pilot program announced in the 2016 Joint WIOA Final Rule required States to report two of the three approaches for measuring effectiveness in serving employers. Under this final rule States will no longer face costs associated with collecting the information required to calculate the Employer Penetration or Repeat Business Customer approaches to the effectiveness in serving employers performance indicator. To estimate the cost savings, we first update the costs associated with collecting each of these pilot approaches following the assumptions used to estimate the cost of the Retention with the Same Employer pilot approach in the 2016 Joint WIOA Final Rule. We then estimate the cost savings under the final rule associated with the proportion of States that will no longer report the various combinations of the pilot approaches that States report in the baseline.
Currently, 15 States report Retention with the Same Employer and Employer Penetration, 9 States report Retention with the Same Employer and Repeat Business Customer, 22 States report Employer Penetration and Repeat Business Customer, and 16 States report all 3 approaches to defining the effectiveness in serving employers performance indicator. To estimate cost savings, we first estimate the annual cost of all 57 States collecting data for, calculating, and reporting the percentage of employers using services out of all employers in the State (Employer Penetration) and the percentage of repeat employers using services within the previous 3 years (Repeat Business Customer). We then multiply the annual cost by the percentage of States currently using the pilot approach to estimate the cost savings. Below, we present the updated costs associated with all 57 States reporting each pilot approach, and then present the cost savings associated with the proportion of States no longer reporting them.
Under the pilot program, States must use two of three specified approaches to measure effectiveness in serving employers. The final rule will only require States to collect data for, calculate, and report the first approach (Retention with the Same Employer). This section calculates the cost for all 57 States to collect data, calculate, and report Employer Penetration and then uses these costs to estimate cost savings for the proportion of States that will no longer report Employer Penetration under the final rule.
At the Federal level for the DOL core programs, the Departments estimated the annual labor cost associated with Employer Penetration by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($93.82/hour). This calculation results in an annual labor cost of $375.
At the State level for the DOL core programs, the Departments estimated Employer Penetration's annual labor cost by multiplying the estimated number of management analysts (one) by the sum of time required for data collection (4 hours), providing training and technical assistance to Local WDBs (3 hours), and Federal reporting (4 hours) and by the hourly compensation rate ($63.20/hour). We multiplied the labor cost ($695) by the number of States (57) to estimate this annual cost at $39,629.
For local-level DOL core programs, the Departments estimated the annual labor cost for Employer Penetration by multiplying the estimated number of management analysts (one) by the time required for data collection (4 hours) and by the hourly compensation rate ($78.06/hour). We multiplied the labor cost ($312) by the number of Local WDBs (580) to estimate this annual cost at $181,104.
At the Federal level for the AEFLA program, the Departments estimated the annual labor cost associated with Employer Penetration by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($93.82/hour). This calculation results in an annual labor cost of $375.
At the State level for the AEFLA program, the Departments estimated Employer Penetration's annual labor cost by multiplying the estimated number of management analysts (one) by the sum of time required for data collection (4 hours), providing training and technical assistance to local AEFLA providers (3 hours), and Federal reporting (4 hours) and by the hourly compensation rate ($63.20/hour). We multiplied the labor cost ($695) by the number of States (57) to estimate this annual cost at $39,629.
For the local-level AEFLA program, the Departments estimated the annual labor cost for Employer Penetration by multiplying the estimated number of management analysts (one) by the time required for data collection (4 hours) and by the hourly compensation rate ($78.06/hour). We multiplied the labor cost ($312) by the number of local AEFLA providers (1,719) to estimate this annual cost at $536,754.
At the Federal level for the VR program, the Departments estimated the annual labor cost associated with Employer Penetration by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($93.82/hour). This calculation results in an annual labor cost of $375.
At the State level for the VR program, the Departments estimated Employer Penetration's annual labor cost by multiplying the estimated number of management analysts (one) by the time required for Federal reporting (4 hours) and by the hourly compensation rate ($63.20/hour). In addition, we added the estimated number of rehabilitation counselors (62 assistants) by the time required for data collection (1 hour each) and by the hourly compensation rate ($48.88/hour). We summed the labor cost for both categories and multiplied it ($3,284) by the number of VR agencies (78) to estimate this annual cost at $256,127.
Summing these annual costs for all 57 States to calculate and report Employer Penetration yields $1,054,369 per year for the Federal-, State-, and local-level DOL core programs and AEFLA programs and the State-level VR programs. The Departments used the updated costs in Exhibit 8 to estimate the cost savings for States that will no longer report this pilot approach.
This section calculates the cost for all 57 States to collect data, calculate, and report the Repeat Business Customer approach to the effectiveness in serving employers performance indicator. The Departments use these costs to estimate cost savings for the proportion of States that will no longer report this pilot approach under the final rule.
At the Federal level for the DOL core programs, the Departments estimated the annual labor cost associated with Repeat Business Customer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($93.82/hour). This calculation results in an annual labor cost of $375.
At the State level for the DOL core programs, the Departments estimated Repeat Business Customer's annual labor cost by multiplying the estimated number of management analysts (one) by the sum of time required for data collection (4 hours), providing training and technical assistance to Local WDBs (3 hours), and Federal reporting (4 hours) and by the hourly compensation rate ($63.20/hour). We multiplied the labor cost ($695) by the number of States (57) to estimate this annual cost at $39,629.
For the local-level DOL core programs, the Departments estimated the annual labor cost for Repeat Business Customer by multiplying the estimated number of management analysts (one) by the time required for data collection (6 hours) and by the hourly compensation rate ($78.06/hour). We multiplied the labor cost ($468) by the number of Local WDBs (580) to estimate this annual cost at $271,655.
At the Federal level for the AEFLA program, the Departments estimated the annual labor cost associated with Repeat Business Customer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($93.82/hour). This calculation results in an annual labor cost of $375.
At the State level for the AEFLA program, the Departments estimated Repeat Business Customer's annual labor cost by multiplying the estimated number of management analysts (one) by the sum of time required for data collection (4 hours), providing training and technical assistance to local AEFLA providers (3 hours), and Federal reporting (4 hours) and by the hourly compensation rate ($63.20/hour). We multiplied the labor cost ($695) by the number of States (57) to estimate this annual cost at $39,629.
For the local-level AEFLA program, the Departments estimated the annual labor cost for Repeat Business Customer by multiplying the estimated number of management analysts (one) by the time required for data collection (6 hours) and by the hourly compensation rate ($78.06/hour). We multiplied the labor cost ($468) by the number of local AEFLA providers (1,719) to estimate this annual cost at $805,130.
At the Federal level for the VR program, the Departments estimated the annual labor cost associated with Repeat Business Customer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($93.82/hour). This calculation results in an annual labor cost of $375.
At the State level for the VR program, the Departments estimated Repeat Business Customer's annual labor cost by multiplying the estimated number of management analysts (one) by the time required for Federal reporting (4 hours) and by the hourly compensation rate ($63.20/hour). In addition, we added the estimated number of rehabilitation counselors (62 counselors) by the time required for data collection (1 hour each) and by the hourly compensation rate ($48.88/hour). We summed the labor cost for both categories ($3,284) and multiplied it by the number of VR agencies (78) to estimate this annual cost of $256,127.
Summing these annual costs for all States to calculate and report Repeat Business Customer yields $1,413,298 per year for the Federal-, State-, and local-level DOL core programs and AEFLA programs and the State-level VR programs. The Departments used the updated costs in Exhibit 9 to estimate the cost savings for States to no longer report this pilot approach.
Under the final rule, the 15 States that currently report only the Retention with the Same Employer and Employer Penetration pilot approaches will have cost savings from no longer having to collect data for, calculate, and report Employer Penetration. Multiplying the annual cost for all 57 States to collect data for, calculate, and report Employer Penetration ($1,054,369) by the 26.3 percent of States reporting these two pilot approaches only (15 out of 57) yields annual cost savings of $277,466.
The 9 States currently reporting only the Retention with the Same Employer and Repeat Business Customer pilot approaches will have cost savings from no longer collecting data for, calculating, and reporting Repeat Business Customer. Multiplying the annual cost for all 57 States to collect data for, calculate, and report Repeat Business Customer ($1,413,298) by the 15.8 percent of States reporting these two pilot approaches only (9 out of 57) yields annual cost savings of $223,152.
The 22 States currently reporting only Employer Penetration and Repeat Business Customer and the 16 States currently reporting all three pilot approaches to the effectiveness in serving employers performance indicator will have cost savings from no longer collecting data for, calculating, and reporting both Employer Penetration and Repeat Business Customer. Multiplying the sum of annual costs for all 57 States to collect data for, calculate, and report both Employer Penetration and Repeat Business Customer ($2,467,667) by the 38.6 percent of States reporting Employer Penetration and Repeat Business Customer only and by the 28.1 percent of States reporting all three approaches yields annual cost savings of $952,433 and $692,679, respectively.
Summing these annual cost savings yields total annual cost savings for all 57 States of $2,145,729 from the final rule. The Departments estimate total cost savings over the 10-year period at $21,457,293 undiscounted, or $18,852,612 and $16,125,654 at discount rates of 3 and 7 percent, respectively. At discount rates of 3 and 7 percent, the 10-year period results in annualized cost savings of $2,210,101 and $2,295,930, respectively.
The Departments cannot quantify the final rule's benefits associated with improving the WIOA core programs' effectiveness in serving employers. Measuring effectiveness in serving employers allows the DOL, AEFLA, and VR programs to set goals, monitor, and learn how to serve employers more effectively.
The Departments cannot quantify these estimated benefits because we do not have quantitative data on how the effectiveness in serving employers performance measure has influenced program implementation and how much it will influence future policies.
Requiring all States to calculate and report Retention with the Same Employer as the effectiveness in serving employers performance indicator will make it easier to compare WIOA core programs' effectiveness in serving employers performance across States and ensure all States have an indicator of job turnover and match quality between workers exiting WIOA core programs and employers. Retention with the Same Employer demonstrates a continued relationship between the employer and participants who have exited WIOA core programs. While many circumstances can have an impact on an employer's retention of employees, an indication that an employee is still working for the same employer in both the second and fourth quarters after exiting from a WIOA program demonstrates a level of success for both parties, as retention of an employee reduces the costs to the employer associated with employee turnover and retraining. Thus, reporting Retention with the Same Employer can help inform design and implementation of program services to reduce job turnover and improve employer-employee match quality. Improved matching and reduced turnover allow employees and employers to operate closer to their productive potential and can make it more worthwhile for employers to invest in training their employees and for employees to invest in learning employer-specific skills.
Exhibit 10 summarizes the estimated total costs and cost savings of the final rule over the 10-year analysis period. Discontinuing reporting of Employer Penetration and Repeat Business Customer has the largest effect as a cost savings. The Departments estimate the total net cost savings of the final rule at $16,125,654 at a discount rate of 7 percent.
The Departments estimate the annualized costs of the final rule at $44,208 and the annualized cost savings at $2,295,930, at a discount rate of 7 percent. The Departments estimate the final rule will result in an annualized net quantifiable cost savings of $2,251,723 and a total 10-year net cost savings of $15,815,157, both at a
The Departments considered two alternatives to the proposed definition of the effectiveness in serving employers performance indicator. First, the Departments considered requiring use of the Employer Penetration pilot approach, which reports the percentage of employers using services out of all employers in the State. This approach would have required counts of services provided to employers, requiring States and local areas to report unique counts of individual employers receiving services through WIOA's programs. Employer Penetration would require a more data-intensive analysis than the proposed approach of Retention with the Same Employer. Employer Penetration would have the benefit of capturing the extent to which employers within a State are engaged with WIOA-funded services and would provide State programs an incentive to work with additional employers. As discussed earlier in Section II.A (Pilot Programs for WIOA Core Programs), on behalf of the Departments, DOL commissioned an examination of State experiences with the various approaches through a third-party contractor (the Final Pilot Study Report discussed elsewhere in this final rule), which found weaknesses in this pilot approach, including (1) an emphasis on quantity rather than quality or intensity of the employer service provided; (2) reliability issues associated with data entry and the process to count unique establishments; (3) measurement of program output rather than outcome; (4) potential for creation of perverse incentives to prioritize program breadth rather than depth in service and delivery; and (5) a lack of sensitivity to industry sectors targeted by State and local workforce agencies.
Costs include calculating and reporting Employer Penetration and rule familiarization for WIOA core programs. The Departments estimate the total cost of the first alternative over the 10-year period at $876,059 undiscounted, or $786,242 and $692,209 at discount rates of 3 and 7 percent, respectively, and an annualized cost of the 10-year period at $92,172 and $98,555 with discount rates of 3 and 7 percent, respectively.
To calculate cost savings the Departments used the estimated cost of collecting data for, calculating, and reporting the two other effectiveness in serving employers approaches (Retention with the Same Employer and
The Departments estimated the total cost savings associated with the first alternative over the 10-year period at $12,002,050 undiscounted, or $10,545,132 and $9,019,820 at discount rates of 3 and 7 percent, respectively, with an annualized cost savings associated with the first alternative over the 10-year period at $1,236,211 and $1,284,219 with discount rates of 3 and 7 percent, respectively.
We estimate the first regulatory alternative to result in total net cost savings over the 10-year period of $11,125,992 undiscounted, or $9,758,890 and $8,327,611 at discount rates of 3 and 7 percent, respectively, with an annualized net cost savings of the 10-year period at $1,144,040 and $1,185,664 with discount rates of 3 and 7 percent, respectively.
The Departments considered a second regulatory alternative that would require the use of the Repeat Business Customer approach to the effectiveness in serving employers performance indicator, which reports the percentage of employers receiving services in a year who also received services within the previous 3 years. This approach to the effectiveness in serving employers measure requires counts of services provided to employers through WIOA's core programs. Repeat Business Customer requires a more data-intensive analysis than the proposed approach of Retention with the Same Employer. Repeat Business Customer captures the extent to which employers within a State can find workers and the employer's level of satisfaction with the public workforce system services. The Departments, in the Final Pilot Study Report, found weaknesses in this pilot approach, including that it (1) may provide a disincentive to reach out to new employers; (2) is subject to variation in industry and sector economic conditions; and (3) may require a statistical adjustment model to mitigate the weaknesses and improve implementation and interpretation.
Costs include the cost of calculating and reporting Repeat Business Customer and the cost of rule familiarization for WIOA core programs. The Departments estimated the total cost of the second alternative over the 10-year period at $2,468,844 undiscounted, or $2,167,864 and $1,852,753 at discount rates of 3 and 7 percent, respectively, with an annualized cost of the 10-year period at $254,140 and $263,790 with discount rates of 3 and 7 percent, respectively.
To calculate cost savings, the Departments used the estimated cost of collecting data for, calculating, and reporting the two other effectiveness in serving employers approaches (Retention with the Same Employer and Employer Penetration), and then estimated the cost savings for the proportion of States that would transition from their existing reporting combination of two or three effectiveness in serving employers approaches to the single Repeat Business Customer approach to the performance indicator. Exhibit 15 summarizes these calculations below.
The Departments estimated total cost savings associated with the second alternative over the 10-year period is $10,152,326 undiscounted, or $8,919,944 and $7,729,709 at discount rates of 3 and 7 percent, respectively with an annualized cost savings associated with the second alternative over the 10-year period is $1,045,690 and $1,086,299 with discount rates of 3 and 7 percent, respectively.
The Departments estimate the second regulatory alternative to result in total net cost savings over the 10-year period of $7,683,482 undiscounted, or $6,752,081 and $5,776,955 at discount rates of 3 and 7 percent, respectively, with an annualized net cost savings of the 10-year period at $791,550 and $822,508 with discount rates of 3 and 7 percent, respectively.
Exhibit 16 summarizes the estimated net cost savings associated with the three considered approaches to the effectiveness in serving employers performance indicator (
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601
The Departments determined that the final rule will not have a significant economic impact on a substantial number of small entities because any impacted small entities are already receiving financial assistance under the WIOA program and likely would continue to do so. The Departments have certified this to the Chief Counsel for Advocacy, Small Business Administration, pursuant to the RFA. 5 U.S.C. 605.
The WIOA title I adult, dislocated worker, and youth program grantees, the WIOA title II State-level AEFLA grantees, Wagner-Peyser Act grantees (under the Wagner-Peyser Act as amended by WIOA title III), and VR program grantees (under the Rehabilitation Act as amended by WIOA title IV), are State government agencies and, therefore, are not considered small entities. However, the final rule could have a minimal impact on a variety of AEFLA local providers, some of which are small entities by U.S. Small Business Administration (SBA) size standards:
The final rule definition of the effectiveness in serving employers performance indicator will have a minimal impact on AEFLA local providers. Each local AEFLA provider is expected to incur a $78.06 cost to review the rule. The $78.06 cost to review the rule is a
Local AEFLA providers are not estimated to incur any new costs, beyond the cost to review the rule, to report Retention with the Same Employer. Some local AEFLA providers may incur net cost savings if they currently report Employer Penetration or Repeat Business Customer. Local AEFLA providers that currently report Employer Penetration will incur cost savings of $312 and local AEFLA providers that currently report Repeat Business Customer will incur cost savings of $468. Therefore, some local AEFLA providers would have net cost savings of between $233.94 (= $312−$78.06) and $389.94 (= $468−$78.06) depending on the measure they currently report. For these local AEFLA providers the net cost savings would still be less than 1% of revenue (0.40% and 0.67% respectively for the smallest categories of entities in NAICS 813410 and NAICS 519120).
The purposes of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
As part of their continuing efforts to reduce paperwork and respondent burden, the Departments conduct a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the PRA.
A Federal agency may not conduct or sponsor a collection of information unless it is approved by OMB under the PRA and displays a currently valid OMB control number. The public also is not required to respond to a collection of information unless it displays a currently valid OMB control number. In addition, notwithstanding any other provisions of law, no person will be subject to penalty for failing to comply with a collection of information if the collection of information does not display a currently valid OMB control number.
The final rule revises ETA 9169, WIOA Statewide and Local Performance Report Template approved under OMB Control Number 1205-0526. The revision requires “Retention with the Same Employer” as the only definition of the effectiveness in serving employers performance indicator in the WIOA Common Performance Reporting ICR by an entity that reports to the Departments on behalf of the State. Data elements for the collection and calculation for the two other piloted definitions of the effectiveness in serving employers performance indicator—Repeat Business Customer and Employer Penetration—are removed from the ICR, along with the corresponding breakouts of the employer services that comprise them. No other changes were proposed for this ICR in the Joint WIOA Effectiveness in Serving Employers NPRM. In accordance with the PRA, the Departments submitted the associated ICR to OMB in concert with the publishing of the proposed rule, and provided the public with a 60-day opportunity to submit comments on the ICR, either directly to the Departments or to OMB, which began with the submission of the ICR to OMB. The Departments and OMB received no comments on the proposed changes.
E.O. 13132 aims to guarantee the division of governmental responsibilities between the Federal Government and the States and to further the policies of the Unfunded Mandates Reform Act of 1995 (UMRA). Accordingly, E.O. 13132 requires executive departments and agencies to ensure that the principles of federalism guide them in the formulation and implementation of policies. Further, agencies must adhere to constitutional principles, examine the constitutional and statutory authority supporting a regulation that would limit the policymaking discretion of the States, and assess the need for such a regulation. To the extent practicable, agencies must consult State and local officials before implementing any such regulation.
E.O. 13132 further provides that agencies must implement a regulation that limits the policymaking discretion of the States only where there is constitutional and statutory authority for the regulation, and it addresses a problem of national significance. For a regulation administered by the States, the Federal Government must grant the States the maximum administrative discretion possible to avoid intrusive Federal oversight of State administration, and agencies must adhere to special requirements for a regulation that pre-empts State law. E.O. 13132 also sets forth the procedures agencies must follow for certain regulations with federalism implications, such as preparation of a summary impact statement.
Accordingly, the Departments reviewed this WIOA-required final rule for federalism implications and have concluded that none exist in this rulemaking. This joint final rule does not contain any substantial direct effects on States, on the relationships between the States, or on the distribution of power and responsibilities among the various levels of government as described by E.O. 13132. Therefore, the Departments concluded that this final rule does not have a sufficient federalism implication to warrant the preparation of a summary impact statement.
UMRA directs agencies to assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector. A Federal mandate is any provision in a regulation that imposes an enforceable duty upon State, local, or Tribal governments, or imposes a duty upon the private sector.
Following the consideration of the above factors, the Departments concluded this joint final rule contains no unfunded Federal mandates, as defined in 2 U.S.C. 658(6) to include either a “Federal intergovernmental mandate” or a “Federal private sector mandate.” Reporting Retention with the Same Employer as the effectiveness in serving employers performance indicator as proposed does not place any additional burdens on State, local, and Tribal governments because the WIOA core programs already collect and report the necessary information. Furthermore, Federal program funding triggers the reporting requirement; therefore, the Departments provide funding for any associated reporting mandate. Private training entities participate as a provider under a WIOA core program on a purely voluntary basis, and voluntarily assume the information collection.
The Departments reviewed this final rule under the terms of E.O. 13175 and DOL's Tribal Consultation Policy and have determined that it would have Tribal implications, because the proposed regulations would have substantial direct effects on: one or more Indian Tribes; the relationship between the Federal Government and Indian Tribes; or the distribution of power and responsibilities between the Federal Government and Indian Tribes. Therefore, DOL has prepared a Tribal summary impact statement. Because the Tribal implications of this final rule relate only to DOL Indian and Native American (INA) program grantees, DOL has printed the requisite Tribal summary impact statement in the DOL-specific effectiveness in serving employers final rule published elsewhere in this issue of the
Employment, Grant programs—labor.
Administrative practice and procedure, Grant programs—education, Grant programs—social programs, Reporting and recordkeeping requirements, Vocational rehabilitation.
Adult education, Grant programs—education.
For the reasons discussed in the preamble, the Employment and Training Administration amends 20 CFR part 677 as follows:
Secs. 116, 189, and 503 of Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
(a) * * *
(1) * * *
(vi) The percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth
(c) * * *
(6) The percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth quarters after exit. For the six core programs, this indicator is a statewide indicator reported by one core program on behalf of all six core programs in the State, as described in guidance.
(c) Whether a State has failed to meet adjusted levels of performance will be determined using the following criteria:
(1) The overall State program score, which is expressed as the percent achieved, compares the actual results achieved by a core program on the primary indicators of performance, except for the effectiveness in serving employers indicator described in § 677.155(a)(1)(vi), to the adjusted levels of performance for that core program. The average of the percentages achieved of the adjusted level of performance for each of the primary indicators, except for the effectiveness in serving employers indicator described in § 677.155(a)(1)(vi), by a core program will constitute the overall State program score.
(2) However, until all indicators for the core program have at least 2 years of complete data, the overall State program score will be based on a comparison of the actual results achieved to the adjusted level of performance for each of the primary indicators that have at least 2 years of complete data for that program.
(3) The overall State indicator score, which is expressed as the percent achieved, compares the actual results achieved on a primary indicator of performance by all core programs in a State to the adjusted levels of performance for that primary indicator.
(i) The average of the percentages achieved of the adjusted level of performance by all of the core programs on that indicator will constitute the overall State indicator score, except for the effectiveness in serving employers indicator described in § 677.155(a)(1)(vi).
(ii) The overall State indicator score for effectiveness in serving employers, as reported by one core program on behalf of all six core programs in the State, as described in guidance, is a statewide indicator that reflects the performance for all core programs. It is calculated as the statewide percentage achieved of the statewide adjusted level of performance.
(4) However, until all indicators for the State have at least 2 years of complete data, the overall State indicator score will be based on a comparison of the actual results achieved to the adjusted level of performance for each of the primary indicators that have at least 2 years of complete data in a State.
(5) The individual indicator score, which is expressed as the percent achieved, compares the actual results achieved by each core program on each of the individual primary indicators to the adjusted levels of performance for each of the program's primary indicators of performance, except for the effectiveness in serving employers indicator described in § 677.155(a)(1)(vi).
For the reasons stated in the preamble, the Department of Education amends 34 CFR parts 361 and 463 as follows:
Secs. 116, 189, and 503 of Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
(a) * * *
(1) * * *
(vi) The percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth quarters after exit. For the six core programs, this indicator is a statewide indicator reported by one core program on behalf of all six core programs in the State, as described in guidance.
(c) * * *
(6) The percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth quarters after exit. For the six core programs, this indicator is a statewide indicator reported by one core program on behalf of all six core programs in the State, as described in guidance.
(c) Whether a State has failed to meet adjusted levels of performance will be determined using the following criteria:
(1) The overall State program score, which is expressed as the percent achieved, compares the actual results achieved by a core program on the primary indicators of performance, except for the effectiveness in serving employers indicator described in § 361.155(a)(1)(vi), to the adjusted levels of performance for that core program. The average of the percentages achieved of the adjusted level of performance for each of the primary indicators, except for the effectiveness in serving employers indicator described in § 361.155(a)(1)(vi), by a core program will constitute the overall State program score.
(2) However, until all indicators for the core program have at least 2 years of complete data, the overall State program score will be based on a comparison of the actual results achieved to the adjusted level of performance for each of the primary indicators that have at least 2 years of complete data for that program.
(3) The overall State indicator score, which is expressed as the percent achieved, compares the actual results achieved on a primary indicator of performance by all core programs in a State to the adjusted levels of performance for that primary indicator.
(i) The average of the percentages achieved of the adjusted level of performance by all of the core programs on that indicator will constitute the overall State indicator score, except for the effectiveness in serving employers indicator described in § 361.155(a)(1)(vi).
(ii) The overall State indicator score for effectiveness in serving employers, as reported by one core program on
(4) However, until all indicators for the State have at least 2 years of complete data, the overall State indicator score will be based on a comparison of the actual results achieved to the adjusted level of performance for each of the primary indicators that have at least 2 years of complete data in a State.
(5) The individual indicator score, which is expressed as the percent achieved, compares the actual results achieved by each core program on each of the individual primary indicators to the adjusted levels of performance for each of the program's primary indicators of performance, except for the effectiveness in serving employers indicator described in § 361.155(a)(1)(vi).
Secs. 116, 189, and 503 of Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
(a) * * *
(1) * * *
(vi) The percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth quarters after exit. For the six core programs, this indicator is a statewide indicator reported by one core program on behalf of all six core programs in the State, as described in guidance.
(c) * * *
(6) The percentage of participants in unsubsidized employment during the second quarter after exit from the program who were employed by the same employer in the second and fourth quarters after exit. For the six core programs, this indicator is a statewide indicator reported by one core program on behalf of all six core programs in the State, as described in guidance.
(c) Whether a State has failed to meet adjusted levels of performance will be determined using the following criteria:
(1) The overall State program score, which is expressed as the percent achieved, compares the actual results achieved by a core program on the primary indicators of performance, except for the effectiveness in serving employers indicator described in § 463.155(a)(1)(vi), to the adjusted levels of performance for that core program. The average of the percentages achieved of the adjusted level of performance for each of the primary indicators, except for the effectiveness in serving employers indicator described in § 463.155(a)(1)(vi), by a core program will constitute the overall State program score.
(2) However, until all indicators for the core program have at least 2 years of complete data, the overall State program score will be based on a comparison of the actual results achieved to the adjusted level of performance for each of the primary indicators that have at least 2 years of complete data for that program.
(3) The overall State indicator score, which is expressed as the percent achieved, compares the actual results achieved on a primary indicator of performance by all core programs in a State to the adjusted levels of performance for that primary indicator.
(i) The average of the percentages achieved of the adjusted level of performance by all of the core programs on that indicator will constitute the overall State indicator score, except for the effectiveness in serving employers indicator described in § 463.155(a)(1)(vi).
(ii) The overall State indicator score for effectiveness in serving employers, as reported by one core program on behalf of all six core programs in the State, as described in guidance, is a statewide indicator that reflects the performance for all core programs. It is calculated as the statewide percentage achieved of the statewide adjusted level of performance.
(4) However, until all indicators for the State have at least 2 years of complete data, the overall State indicator score will be based on a comparison of the actual results achieved to the adjusted level of performance for each of the primary indicators that have at least 2 years of complete data in a State.
(5) The individual indicator score, which is expressed as the percent achieved, compares the actual results achieved by each core program on each of the individual primary indicators to the adjusted levels of performance for each of the program's primary indicators of performance, except for the effectiveness in serving employers indicator described in § 463.155(a)(1)(vi).
Consumer Financial Protection Bureau.
Proposed rule; request for public comment.
The Consumer Financial Protection Bureau (CFPB) proposes to amend Regulations E and Z to update regulatory exceptions for overdraft credit provided by very large financial institutions, thereby ensuring that extensions of overdraft credit adhere to consumer protections required of similarly situated products, unless the overdraft fee is a small amount that only recovers applicable costs and losses. The proposal would allow consumers to better comparison shop across credit products and provide substantive protections that apply to other consumer credit.
Comments must be received on or before April 1, 2024.
You may submit comments, identified by Docket No. CFPB-2024-0002 or RIN 3170-AA42, by any of the following methods:
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All submissions, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Proprietary information or sensitive personal information, such as account numbers or Social Security numbers, or names of other individuals, should not be included. Submissions will not be edited to remove any identifying or contact information.
Anna Boadwee, Attorney-Advisor; Joseph Baressi, Pedro De Oliveira, Thomas Dowell, Brandy Hood, Kristin McPartland, or Mark Morelli, Senior Counsels, Office of Regulations, at 202-435-7700 or
This proposed rule would update non-statutory exceptions in Regulations Z and E that have allowed very large financial institutions to avoid statutory requirements when extending certain overdraft credit.
Consumer credit is subject to Regulation Z if the creditor imposes a finance charge, which generally includes any charge payable directly or indirectly by the consumer and imposed directly or indirectly by the creditor as an incident to or a condition of the extension of credit.
This exception was evidently intended to allow banks to continue providing limited overdraft services, as a courtesy to consumers who inadvertently overdrew their account, without the banks complying with Regulation Z. In the early years of the regulation, decisions to pay an item that
Over the last 30 years, in conjunction with widespread financial institution adoption of information technology systems as well as the expansion of debit card transactions that can overdraw an account, overdraft credit products provided under the exception have morphed from an occasional courtesy provided to consumers into frequently used and promoted products that increase costs to consumers (in certain instances) and generate a substantial portion of the direct fee revenue that financial institutions make from checking accounts (and much of the total revenue that financial institutions make from low-balance accounts). The volume of overdrawing transactions rose drastically over the years, including on transactions where the consumer may have suffered no negative consequences if the transaction were declined. Since the CFPB focused substantial enforcement and supervision attention on overdraft fees in 2021, overdraft fee revenue has contracted somewhat. However, it is still a source of billions of dollars in profits every year, and most very large financial institutions continue to charge $35 today. Financial institutions today generally make pay/no-pay decisions in advance—for example, by setting overdraft limits that the consumer may not be aware of and using information technology systems to make automated pay/no-pay decisions. They sometimes calibrate these systems with the goal of generating fee revenue. Because of these market changes, which increase the risk that a consumer will unwittingly incur high overdraft fees, helping consumers make informed decisions about overdraft credit has become a much more serious concern.
Given these changes over the past 30 years and consistent with TILA's purpose of promoting the informed use of credit, the CFPB is proposing to update several non-statutory exceptions in Regulation Z to extend consumer credit protections that generally apply to other forms of consumer credit to certain overdraft credit provided by very large financial institutions. These changes would allow consumers to better compare certain overdraft credit to other types of credit and would provide consumers with several substantive protections that already apply to other consumer credit.
These amendments would apply only to very large financial institutions—
Under this proposal, Regulation Z would generally apply to overdraft credit provided by very large institutions unless it is provided at or below costs and losses as a true courtesy to consumers. The proposed rule would accomplish this result by updating two regulatory exceptions from the statutory definition of finance charge. First, the proposal would update an exception that currently provides that a charge for overdraft is not a finance charge if the financial institution has not previously agreed in writing to pay items that overdraw an account
If the proposal is finalized, above breakeven overdraft credit that is not currently subject to Regulation Z would become subject to Regulation Z, including provisions in subpart B that govern open-end credit (
The proposal would also require covered overdraft credit offered by very large financial institutions to be put in a credit account separate from the asset account, and it would update exceptions relating to credit cards. Among other changes, it would apply the portions of Regulation Z that implement the Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act) to covered overdraft credit that can be accessed by a hybrid debit-credit card, such as a debit card or other single credit device (including certain account numbers) that a consumer may use from time to time to obtain covered overdraft credit from a very large financial institution. Provisions of the CARD Act that would apply to such overdraft credit include, but are not limited to, ability-to-pay underwriting requirements, limitations on penalty fees including certain fees on
The proposal would also prohibit compulsory use of preauthorized electronic fund transfers (EFTs) for repayment of covered overdraft credit provided by very large financial institutions, which would ensure that consumers using those products have a choice of at least one alternative method of repayment. As a result of this change, covered overdraft credit offered by very large financial institutions could not be conditioned on consumers agreeing to automatic debits from their checking account. Consumers could still opt into automatic payments on a periodic basis if offered by their financial institution, but they would have the right to repay this overdraft credit manually if they prefer.
The CFPB proposes that the final rule, if adopted, would take effect on the October 1 which follows by at least six months the date it is published in the
The CFPB invites comment on all aspects of this notice of proposed rulemaking and on the specific issues on which it solicits comment elsewhere herein, including on any appropriate modifications or exceptions to the Proposed Rule.
An overdraft occurs when consumers do not have a sufficient balance in their asset account to pay a transaction, but the financial institution pays the transaction anyway. Typically, the financial institution pays an overdraft transaction by either transferring the consumer's own funds from another asset account held by the financial institution, such as a savings account, or by extending overdraft credit (
Currently, not all overdraft credit is subject to Regulation Z. For example, when the Board first adopted Regulation Z in 1969,
Some overdraft credit is previously agreed upon in writing and is currently covered by Regulation Z. Such covered overdraft credit enables consumers to link a checking account to a credit account, like an overdraft line of credit or a credit card, from which funds are transferred automatically to pay transactions when the checking account balance is insufficient to pay them. Some financial institutions charge a fee, often referred to as an overdraft protection transfer fee, for these transfers.
Financial institutions may also pay overdrafts through currently non-covered overdraft credit, where the financial institution typically pays overdrafts up to certain limits but does not agree in advance to pay the overdrawn transactions, reserving discretion to decline any given overdraft transaction. This type of overdraft credit is currently non-covered overdraft credit because it is currently not subject to Regulation Z. This proposal may also refer to currently non-covered overdraft credit as an overdraft service, overdraft services, or an overdraft program. With certain exceptions provided for by internal policies, the financial institution typically assesses a flat fee for each overdraft transaction the financial institution pays. In addition, some financial institutions charge an additional fee or fees, known as extended or sustained overdraft fees, if the consumer does not bring the account back to a positive balance within a specified period. To collect repayment of the funds advanced to cover overdraft transactions as well as payment of the fees assessed, the financial institution typically deducts those amounts as a lump sum from the consumer's next incoming deposit(s), usually within three days after the account became overdrawn.
Financial institutions typically provide non-covered overdraft credit for certain transaction types—primarily checks, automated clearinghouse (ACH) transactions, and recurring debit card transactions—as a default, up to certain coverage limits. For one-time (non-recurring) debit card and ATM transactions, financial institutions may not assess overdraft fees for paying such transactions without first obtaining the consumer's opt-in following the process required by Regulation E 12 CFR 1005.17(b).
Financial institutions employ a number of different practices and policies when making pay/return decisions in connection with non-covered overdraft.
Historically, financial institutions have charged an NSF fee when they reject, rather than pay, transactions initiated by check or ACH or other electronic payments; in contrast, financial institutions have rarely if ever charged an NSF fee when declining a one-time debit card purchase or an ATM withdrawal. Financial institutions typically have charged the same amount for an NSF fee as for a non-covered overdraft fee.
Non-covered overdraft credit started as a courtesy that financial institutions provided when they would decide on a manual, ad hoc basis to pay particular check transactions into overdraft rather than returning those checks unpaid.
As a result of these market shifts and operational changes, fee revenue from non-covered overdraft credit began to significantly influence the overall business model for many asset accounts. Financial institutions became less likely to charge consumers upfront monthly checking account fees, which consumers could more easily compare across the market, and instead began to rely heavily overdraft fees.
Marketwide overdraft revenue declined following the 2010 implementation of the Board's “opt-in” rule under Regulation E to an estimated $12 billion in 2011 before beginning to increase again.
Beginning in late 2021, a number of large banks began announcing and implementing changes to their overdraft policies.
Despite these changes, the vast majority of banks and credit unions with over $10 billion in assets continue to charge between $30 and $37 per overdraft fee, and more than half charge $35.
As cumulative overdraft fee revenue for financial institutions increased, so did the cumulative burden of overdraft fees on consumers. CFPB research found that 79 percent of combined overdraft and NSF fees were paid by 9 percent of consumers who paid more than 10 such fees per year, incurring a median of $380 in these fees in a year.
High overdraft fees can make it more difficult for consumers to return their account to a positive balance, contributing to account charge-offs, involuntary account closures, and consumers blocked out of the banking system. The CFPB found that the banks with the highest share of accounts with frequent overdrafts tended to have the highest rates of involuntary account closure; conversely, those with the lowest share of accounts with frequent overdrafts tended to have the lowest rates of involuntary closure.
Consumers can face significant uncertainty about whether they will incur overdraft fees. Though financial institutions may provide disclosures related to their transaction processing, deposit availability, and overdraft assessment policies, these policies can be extraordinarily complex.
In response to the CFPB's 2022 request for information regarding fees that are not subject to competitive processes that ensure fair pricing, which received over 80,000 responses,
The CFPB has also studied how consumers who are opted-in to overdraft services on one-time debit card and ATM transactions—and thus subject to overdraft fees on those transactions—fare compared to those who are not opted-in. In total, opted-in accounts incurred more than seven times as many overdraft fees as accounts that were not opted-in.
Consumers whose accounts are frequently overdrawn are typically more financially insecure than those who do not overdraw or who do so infrequently.
As financial institutions began to evolve provision of non-covered overdraft away from the historical
More recently, in October 2022, the CFPB issued a policy statement stating that the assessment of overdraft fees that consumers would not reasonably anticipate, including overdraft fees on debit card or ATM transactions that are authorized when the consumer's available balance is sufficient to cover the transaction but that later settle against a negative balance due to intervening transactions or complex processes (“authorize positive, settle negative” or “APSN” transactions), likely violates the Consumer Financial Protection Act of 2010 (CFPA)'s statutory prohibition against unfair practices.
The CFPB has previously established rules governing overdraft credit on prepaid accounts. In 2016, the CFPB amended Regulation Z to provide that prepaid accounts that offer credit features are generally covered under Regulation Z's credit card rules.
In applying Regulation Z to overdraft credit features on prepaid accounts, the CFPB noted that the term “credit” in TILA includes “the right to . . . incur debt and defer its payment”
As a result of the evolution of the overdraft market over the last few decades, the overdraft-related exception to the definition of finance charge in Regulation Z no longer serves its original purpose. The CFPB is proposing to update the exception, and several others that allow financial institutions to follow different rules for overdraft credit than for other forms of consumer credit, to ensure that overdraft credit offered by very large financial institutions is generally treated no differently than any other form of consumer credit, except in the narrow cases where it is provided as a courtesy to consumers. Preserving a limited exception from Regulation Z may encourage the availability of overdraft coverage, which can benefit consumers, especially given that much overdraft
The CFPB has engaged in outreach and research related to overdraft fees since soon after the CFPB's inception. In 2012, the CFPB initiated a broad inquiry into overdraft programs for consumer checking accounts.
In 2021, the CFPB examined financial institutions' reliance on overdraft/NSF fees from 2015 to 2019, finding that it was persistent.
Consistent with the CARD Act, the CFPB consulted with the following agencies regarding rules that implement TILA section 149: (1) the Office of the Comptroller of the Currency; (2) the Board of Directors of the Federal Deposit Insurance Corporation; and (3) the National Credit Union Administration Board. The CFPB also consulted with the Board and several other Federal agencies, as discussed in [part VIII].
The CFPB is issuing this proposal pursuant to its authority under TILA, EFTA, and the CFPA. This part includes a general discussion of the provisions on which the CFPB relies in this rulemaking.
For the reasons discussed in this notice, the CFPB is proposing amendments to Regulation Z with respect to overdraft credit to carry out TILA's purposes. The CFPB at this time is proposing to retain additional requirements, adjustments, and exceptions as, in the CFPB's judgment, are necessary and proper to carry out the purposes of TILA, prevent
EFTA section 902 establishes that the purpose of the statute is to provide a basic framework establishing the rights, liabilities, and responsibilities of participants in EFT and remittance transfer systems but that its primary objective is the provision of individual consumer rights.
EFTA section 904(a) authorizes the CFPB to prescribe regulations to carry out the purposes of EFTA.
EFTA section 904(c) also provides that the “CFPB shall by regulation modify the requirements imposed by this subchapter on small financial institutions if the CFPB determines that such modifications are necessary to alleviate any undue compliance burden on small financial institutions and such modifications are consistent with the purpose and objective of this subchapter.”
As discussed in part V below, the CFPB is adopting amendments to Regulation E, including with respect to compulsory use of preauthorized repayment and the definition of overdraft services, pursuant to the CFPB's authority under, as applicable, EFTA section 904(a) and (c). The CFPB is proposing to retain existing rules for financial institutions with less than $10 billion in assets because the CFPB has determined that such exceptions will alleviate undue compliance burdens as the CFPB continues to examine the market for smaller financial institutions.
Among other statutes, TILA, EFTA, and the CFPA are Federal consumer financial laws.
This proposed rule would expand protections to consumers of overdraft credit at financial institutions with more than $10 billion in assets. This proposal would not change the regulatory framework for overdraft credit offered by financial institutions with $10 billion or less in assets.
To limit the proposed rule to overdraft credit offered by financial institutions with assets of more than $10 billion, the proposed rule would define in proposed § 1026.62(b)(8) the term “very large financial institution” as an insured depository institution or an insured credit union with total assets of more than $10 billion and any affiliate thereof. A financial institution may determine whether it has total assets of more than $10 billion using the same determination that is used to determine whether such institutions are subject to the CFPB's supervisory authority under 12 U.S.C. 5515(a). The CFPB currently publishes a list of such institutions at
The CFPB has preliminarily determined that overdraft services offered by financial institutions with more than $10 billion in assets should be subject to this rule. As noted above, in the supervisory context, Congress adopted in 12 U.S.C. 5515(a) a $10 billion threshold to define the “very large banks, savings associations, and credit unions” that would be subject to the CFPB's primary supervision authority. The CFPB has preliminarily determined that a $10 billion threshold similarly should be used to define “very large financial institution” for limiting the scope of overdraft credit that would be covered by the proposed rule.
The CFPB has preliminarily determined that consumers would benefit from the CFPB's proceeding with a rule that would apply to very large financial institutions—
In light of the different circumstances smaller financial institutions may face in adapting to the proposed regulatory framework, the CFPB is proposing not to extend the new rule to those institutions with $10 billion or less in assets. While the CFPB is not proposing any changes to the regulatory requirements for smaller financial institutions, the CFPB will continue to monitor the market in coordination with State and Federal supervisors.
The CFPB seeks comment on its preliminary determination to apply the proposed rule only to very large financial institutions and on whether $10 billion is an appropriate threshold for defining very large financial institutions.
The CFPB proposes to add § 1026.62(a) and (b) to define the scope of transactions and accounts that would be covered under the proposed rule. The proposed rule would introduce new terms and amend several existing Regulation Z definitions and their commentary to state that overdraft credit is credit and assist with ease of reference to various types of overdraft credit. First, the proposal would define overdraft credit in proposed § 1026.62(a)(2), and proposed comment 2(a)(14)-4 would provide a brief example to illustrate that overdraft credit is credit under TILA and Regulation Z.
The CFPB's proposed rule would add commentary to the definition of open-end credit in § 1026.2(a)(20) to confirm that overdraft credit that is subject to a finance charge is generally open-end credit and is therefore subject to the Regulation Z provisions that apply to open-end credit. The proposed definitions of covered overdraft credit and non-covered overdraft credit in new § 1026.62(b) would assist with referencing overdraft credit that would be or not be credit subject to Regulation Z under this proposal. Covered overdraft credit under this proposal would be overdraft credit that is subject to a finance charge or is payable by written agreement in more than four installments, and would be subject to Regulation Z. Non-covered overdraft credit under this proposal would be overdraft credit that is neither subject to a finance charge nor payable by written agreement in more than four installments, and would not be subject to Regulation Z. Additionally, the CFPB proposes to add a new definition of covered overdraft credit account to facilitate ease of reference to credit accounts through which the financial institutions extend or can extend covered overdraft credit.
TILA defines “credit” to mean the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment.
The CFPB is proposing to update several exceptions in Regulation Z, increasing consumer protections that apply to overdraft credit offered by very large financial institutions. To that end, the CFPB would add a definition of “overdraft credit” in proposed § 1026.62(a) to help clarify the scope of transactions covered by the proposed rule. Proposed § 1026.62(a) would define “overdraft credit” as any consumer credit extended by a financial institution to pay a transaction from a checking or other transaction account (other than a prepaid account as defined in § 1026.61) held at the financial institution when the consumer has insufficient or unavailable funds in that account. Proposed § 1026.62(a) would provide non-exhaustive examples, such as consumer credit extended through a transfer from a credit card account or overdraft line of credit.
The proposed definition of “overdraft credit” would not cover credit features with respect to a prepaid account as defined in § 1026.61. The CFPB has preliminarily determined that it would be unnecessary and unduly burdensome to include prepaid accounts within the scope of this proposed rule. The CFPB's Prepaid Accounts Rule already provides comprehensive consumer protections tailored to prepaid accounts.
Proposed § 1026.62(a) would also clarify that the term “overdraft credit” does not include credit exempt from Regulation Z pursuant to existing § 1026.3. For example, consistent with TILA section 104(2),
The term “open-end credit” is defined in § 1026.2(a)(20) as (1) consumer “credit,” (2) that is extended under a “plan,” (3) where the person extending the credit may impose a “finance charge” from time to time on an outstanding unpaid balance, (4) the person extending the credit is a “creditor,” (5) the person extending the credit reasonably contemplates repeated transactions, and (6) the amount of credit that may be extended to the consumer during the term of the plan (up to any limit set by the creditor) is generally made available to the extent that any outstanding balance is repaid.
For the reasons discussed below, the CFPB has preliminarily determined that virtually all overdraft credit that financial institutions provide today, such as through negative balances on checking accounts, would meet the Regulation Z definition of open-end credit, but for Regulation Z excepting overdraft fees from the definition of finance charge. Specifically, but for those exceptions, the typical $35 overdraft fee plainly constitutes a finance charge and a financial institution that regularly assesses such a finance charge is a creditor.
The CFPB has preliminarily determined that overdraft credit that is typical in the market today would become covered overdraft credit under the proposed rule and would meet the six elements of open-end credit under Regulation Z. For clarity and to facilitate compliance, the CFPB is proposing additional commentary regarding two terms used in the definition of open-end credit: “plan” and “finance charge.” The following discusses each of the six elements in turn.
The CFPB has preliminarily determined that the reservation of such discretion in connection with covered overdraft credit does not connote the absence of an open-end credit plan. The CFPB understands that financial institutions offering automated overdraft services include in their agreements provisions about how the overdraft service will operate and information about overdraft fees. These terms-and-conditions documents typically stipulate that consumers using overdraft programs must and do agree to repay the debt created by an overdraft and the related fee, indicating that a contractual arrangement between the creditor and the consumer exists. Although these agreements typically state that the financial institution retains discretion to authorize or decline any particular overdraft, as a practical matter, financial institutions operating automated overdraft programs exercise limited if any discretion in authorizing particular transactions so long as the overdraft transaction is within the overdraft coverage limit that the institution internally established. The CFPB notes that credit card issuers similarly reserve the right to reject individual transactions in their contractual agreements, yet credit card programs are treated as open-end credit plans under TILA and Regulation Z. Treating the provision of automated overdraft credit in a comparable way would promote consistency. Therefore, the CFPB has preliminarily determined that a checking account agreement offered in connection with overdraft credit is a plan notwithstanding that the person offering the agreement reserves the right to not extend credit on individual transactions.
While the proposed definition of covered overdraft credit includes overdraft credit that is subject to a finance charge as well as overdraft credit payable by a written agreement in more than four installments, the CFPB anticipates that most overdraft credit would meet the definition of covered overdraft credit because it is subject to a finance charge rather than because it is payable in more than four installments.
Proposed comment 2(a)(20)-4.iii would clarify that these are charges “imposed from time to time on an outstanding unpaid balance” as long as there is no specific amount financed for the plan for which the finance charge, total of payments, and payment schedule can be calculated. The CFPB does not anticipate that there will be a specific amount financed for overdraft credit at the time the credit plan is established because the CFPB anticipates that the credit lines on these credit plans generally will be replenishing (discussed under
The CFPB proposes to define “covered overdraft credit” as overdraft credit that is subject to a finance charge or is payable by written agreement in more than four installments and “non-covered overdraft credit” as overdraft credit that is not subject to a finance charge and is not payable by written agreement in more than four installments. The purpose of the proposed definitions is to assist with ease of reference to overdraft credit that is subject to, or covered by, Regulation Z. As discussed in more detail in part V.C, some charges imposed in connection with overdraft credit are not considered finance charges. Thus, use of the proposed definitions will also help a person extending overdraft credit to readily ascertain whether they are subject to the requirements of the regulation.
The proposed definition of “overdraft credit” is limited to consumer credit, but, even with that qualification, not all overdraft credit would be subject to Regulation Z if the definition is finalized as proposed. Many provisions of Regulation Z apply to a “creditor,” which generally is defined at § 1026.2(a)(17)(i) as “[a] person who regularly extends consumer credit that is subject to a finance charge or is payable by written agreement in more than four installments.” Thus, a financial institution must offer overdraft credit that is subject to a finance charge or is payable by written agreement in more than four installments (
Section 1026.2(a)(7) defines “card issuer” as a person that issues a credit card or that person's agent with respect to the card. Unlike other creditors, card issuers are subject to Regulation Z even if they extend credit that is not subject to a finance charge and is not payable by written agreement in more than four installments.
For these reasons, the CFPB has preliminarily determined that a new definition of “covered overdraft credit” that parallels the general definition of creditor will assist with ease of reference to overdraft credit that is subject to Regulation Z. Additionally, the CFPB has preliminarily determined that a new definition of “non-covered overdraft credit” will assist with ease of reference to overdraft credit that is not subject to, or covered by, Regulation Z, particularly in the proposed rule's costs and losses calculation in § 1026.62(d).
The CFPB proposes to define “covered overdraft credit account” as a credit account through which a financial institution extends or can extend covered overdraft credit. The term includes any line of credit, credit card account, credit feature, credit line, credit plan, or credit subaccount through which the financial institution extends or can extend covered overdraft credit. Proposed § 1026.62(c) would require very large financial institutions to structure covered overdraft credit as a separate credit account. Therefore, the term “covered overdraft credit account” would assist in ease of reference to these separate credit accounts and in distinguishing them from tied checking or other transaction accounts.
Under Regulation Z, the term “finance charge” generally is defined in § 1026.4(a) to mean “the cost of consumer credit as a dollar amount.” It includes any charge payable directly or indirectly by the consumer and imposed directly or indirectly by the creditor as an incident to or a condition of the extension of credit. It does not include any charge of a type payable in a comparable cash transaction.
Regulation Z currently excludes certain fees or charges imposed by a financial institution for paying items that overdraw an account from the definition of “finance charge” unless “the payment of such items and the imposition of the charge were previously agreed upon in writing.”
The proposal would amend the definition of “finance charge” in § 1026.4 in three ways. First, it would modify the partial exception provided in § 1026.4(b)(2) for certain charges imposed on checking and other transaction accounts so that the partial exception would no longer apply to “covered asset accounts” as defined in proposed § 1026.62. Second, it would add proposed § 1026.4(b)(12) that would provide examples of charges imposed in connection with covered overdraft credit that are finance charges. Third, it would amend the exception provided in § 1026.4(c)(3) so that the exception would no longer apply to “above breakeven overdraft credit” as defined
Under TILA section 106(a) (15 U.S.C. 1605(a)), the term “finance charge” generally provides that “the amount of the finance charge in connection with any consumer credit transaction shall be determined as the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit.”
The current official interpretations address comparable cash transactions by stating that charges imposed uniformly in cash and credit transactions are not finance charges and by instructing that, to determine whether a transaction is a finance charge, the creditor should compare the credit transaction to a similar cash transaction.
Section 1026.4(b) lists examples of the types of charges that generally are finance charges. In particular, § 1026.4(b)(2) provides that the finance charge includes “[s]ervice, transaction, activity, and carrying charges, including any charge imposed on a checking or other transaction account (except a prepaid account as defined in § 1026.61) to the extent that the charge exceeds the charge for a similar account without a credit feature.”
The historical roots of § 1026.4(b)(2) trace back to the first version of Regulation Z, published by the Board in 1969. In that version, § 226.4(a)(2) indicated that the finance charge included service, transaction, activity, or carrying charges. The 1969 version of § 226.4(a)(2) also included a footnote stating that the charges listed in § 226.4(a)(2) included “any charges imposed by the creditor in connection with a checking account to the extent that such charges exceed any charges the customer is required to pay in connection with such account when it is not being used to extend credit.”
As part of its 1981 amendments to Regulation Z, the Board moved the text of § 226.4(a)(2) to its current location in § 1026.4(b)(2) and incorporated the language from the accompanying footnote into the main regulation text.
The CFPA generally granted rulemaking authority under the TILA and transferred primary oversight of Regulation Z to the CFPB. Subsequently, the CFPB renumbered § 226.4 to § 1026.4.
The proposal would revise § 1026.4(b)(2) and comment 4(b)(2)-1 to provide that § 1026.4(b)(2) does not apply to “covered asset accounts” as defined in § 1026.62. This proposed exception would mirror the exception created by the CFPB's Prepaid Rule.
The proposal also would add a paragraph at § 1026.4(b)(12). Proposed § 1026.4(b)(12) would add examples of finance charges with regard to covered asset accounts, as defined in proposed § 1026.62(b)(2). These proposed changes would broaden the definition of
Proposed § 1026.4(b)(12)(i) would specify that any service, transaction, activity, or carrying charge imposed on the separate credit account required by § 1026.62(c) is a finance charge. That is, the fees described in proposed § 1026.4(b)(12)(i) would be finance charges without regard to a comparison to fees for a comparable cash transaction.
Under § 1026.62(c), the required credit account exists for the purpose of providing credit. Therefore, service, transaction, activity, or carrying charges on this separate credit account are, per the finance charge definition in § 1026.4(a), generally imposed as an incident to or a condition of the extension of credit, separate and distinct from any such fees applied to a separate checking or other transaction account. Because of the nature of the credit account, it would be difficult or impossible to determine which, if any, charge applied to a checking or other asset account is a charge for a similar or comparable cash transaction for the purpose of § 1026.4(a). As with the Board's analysis in the 2009 amendment regarding credit card fee transactions, there is not necessarily a single or standard checking account to use for fee comparison. For example, there may be different fees applied to a checking account with a low balance minimum versus another type of checking account. Thus, it would be difficult in many cases to say which checking account provides the appropriate fee for comparison. Even assuming a comparable transaction could be identified, the disclosure a consumer might receive would depend on whether the creditor provides other asset accounts and imposes service, transaction, activity, or carrying charges on those accounts and whether the fees applied to those accounts exceed the fees for those on the separate credit account. As with the distinctions analyzed by the Board in the 2009 amendment, it is not clear that these distinctions are meaningful to consumers.
Proposed § 1026.4(b)(12)(ii) would specify that any service, transaction, activity, or carrying charge imposed on the covered asset account is a finance charge to the extent that the charge exceeds a comparable charge imposed on a checking or other transaction account that does not have covered overdraft credit tied to it. That is, any such charge is a finance charge to the extent that it exceeds a comparable charge imposed on a checking or other transaction account that is not a covered asset account. This provision would largely mirror existing § 1026.4(b)(2) but with adjustments for covered asset accounts.
Proposed § 1026.4(b)(12)(iii) would describe certain charges on a checking or other transaction account that does not have covered overdraft credit tied to it that are not comparable to charges imposed on a covered asset account, which, by definition, does have covered overdraft credit tied to it. These charges would therefore not be permitted to be subtracted from charges applied to the covered asset account for the purpose of determining whether or not a charge on the covered asset account is a finance charge.
Proposed § 1026.4(b)(12)(iii)(A) would exclude from the determination of a finance charge comparison of a charge for authorizing or paying a transaction that overdraws the checking or other transaction account that does not have covered overdraft credit. Proposed § 1026.4(b)(12)(iii)(B) would exclude from the determination of a finance charge comparison of a charge for declining to authorize or pay a transaction, and proposed § 1026.4(b)(12)(iii)(C) would exclude from the determination of a finance charge comparison of a charge for returning a transaction unpaid.
The CFPB has made the preliminary determination to exclude from the determination of a finance charge these categories of charges for two reasons.
Proposed § 1026.4(b)(12)(iii)(D) would exclude, for purposes of determining whether the fee is a finance charge, comparison of a charge for transferring funds from any credit account into a checking or other transaction account that does not have covered overdraft credit. Proposed § 1026.4(b)(12)(iii)(E) would exclude, for purposes of determining whether the fee is a finance charge, comparison of a charge for transferring funds from any other asset account, such as a savings account, into a checking or other transaction account that does not have covered overdraft credit. Thus, under proposed § 1026.4(b)(12)(iii)(D) and (E), a very large financial institution may impose a service fee on a covered asset account when the institution transfers funds into the account from a covered overdraft credit account to cover a transaction that would otherwise overdraw the covered asset account. The institution may also impose a fee to transfer funds into the checking or other transaction account (
The exclusion in proposed § 1026.4(b)(12)(iii)(D) addresses charges in connection with an extension of credit that is regulated as credit, albeit not overdraft credit. Because these are charges payable in a credit transaction, the CFPB has preliminarily determined that these are not charges payable in a comparable cash transaction and should not be used for comparison in the determination of a finance charge.
The exclusion in proposed § 1026.4(b)(12)(iii)(E) addresses charges to transfer funds into a checking or other transaction account that is not a covered asset account from any other asset account to cover a transaction that would otherwise overdraw the checking or other transaction account. This is because the CFPB is concerned about the possibility for evasion from the requirements of Regulation Z if comparison of the charges described in § 1026.4(b)(12)(iii)(E) were to be permitted.
The majority of combined overdraft and NSF fees are paid by a small subset of consumers. CFPB research found that 79 percent of combined overdraft and NSF fees were paid by 9 percent of consumers who paid more than 10 such fees per year, incurring a median of $380 in these fees in a year.
Consumers whose accounts are frequently overdrawn are typically more financially insecure than those who do not overdraw or who do so infrequently.
If such a comparison were permitted, a bank could potentially avoid the definition of “finance charge” by charging a substantial fee for transferring funds into a checking or other transaction account that is not a covered asset account from any other asset account and then charge that same substantial amount for any service, transaction, activity, or carrying charge imposed on the covered asset account. By comparing the two substantial fees to each other, the amount of the charge on the covered asset account would not be considered a finance charge. For the subset of consumers who pay the majority of overdraft and NSF fees, however, this comparison of fees would be a comparison between a product that such consumers can readily access (
Historically, whenever a consumer bounced a check written against a deposit account that lacked a credit feature, the consumer's financial institution typically returned the check unpaid and assessed the consumer an NSF fee. In addition, the payee on the check might have taken various actions against the consumer, such as assessing the consumer a late fee or returned item fee, reporting the consumer's payment as late to a credit bureau, or bringing legal action against the consumer for writing a bad check.
Although Congress did not exempt any category of overdraft credit from TILA,
In 1981, the Board amended Regulation Z to, among other things, make “a few minor editorial changes” to the § 226.4(d) exception.
The language from the Board's 1981 version of § 226.4(c)(3) remains in effect unchanged at § 1026.4(c)(3) in the CFPB's current version of Regulation Z.
It is the CFPB's preliminary view that the § 1026.4(c)(3) exception is overbroad for purposes of the current non-covered overdraft market. To address the issue, the CFPB proposes to add a new sentence to the end of § 1026.4(c)(3) that would provide that the paragraph no longer applies to “above breakeven overdraft credit” as that term is defined in proposed § 1026.62. As discussed in part V.A, the CFPB proposes to apply its proposed § 1026.4(c)(3) amendment only to very large financial institutions.
The CFPB proposes to define the term “above breakeven overdraft credit” at § 1026.62(b)(1) to mean overdraft credit extended by a very large financial institution to pay a transaction on which, as an incident to or a condition of the overdraft credit, the very large financial institution imposes a charge or combination of charges exceeding the average of its costs and charge-off losses for providing non-covered overdraft credit as described in § 1026.62(d). The CFPB proposes to establish above breakeven overdraft credit by reference to the average of a very large financial institution's cost and charge off losses for providing non-covered overdraft credit rather than the cost and estimated charge-off losses for providing non-covered overdraft credit for each separate transaction because the CFPB has preliminarily determined, based on its supervisory experience, that many financial institutions currently do not track their costs and charge-off losses at the transaction level, but generally can calculate their average costs and charge-off losses at the product level. Further, the CFPB expects that an institution-wide calculation would be easier for very large financial institutions to administer.
The CFPB is proposing these changes for several independent reasons.
First, the market for non-covered overdraft credit has changed in important ways—many financial institutions have automated their non-covered overdraft programs and expanded them to cover non-check transactions, while also adjusting their account pricing structure to more heavily emphasize overdraft fees.
Unlike in 1969, when checks made up the lion's share of overdraft transactions,
This shift away from check transactions is significant because, as financial institutions have automated their non-covered overdraft programs and expanded them to cover non-check transactions, the sheer volume of overdraft transactions and associated fees has increased.
The proposed changes described in this section would return the exception to its original conception—excepting overdraft services from Regulation Z when offered as a courtesy or accommodation to customers—while adapting it to fit within the modern payments system. The concept of a courtesy or an accommodation is the provision of a service primarily for the convenience of a customer. A credit product that produces large amounts of revenue and profit, and is provided to many people who may not want the service, is not consistent with the concept of providing an additional service as a courtesy. The CFPB preliminarily finds that, where a financial institution sets its overdraft fees at or below its breakeven point, it provides a courtesy service to consumers who overdraw their accounts. Conversely, where a financial institution sets its overdraft fees above its breakeven point, and profits from those fees, it cannot be said to be providing a courtesy. The CFPB has preliminarily determined that the § 1026.4(c)(3) exception should continue to apply to overdraft fees set at or below the breakeven point, so that very large financial institutions have the option to recover their costs and losses associated with providing non-covered overdraft credit to consumers (without having to comply with Regulation Z), and thus, are not disincentivized from providing non-covered overdraft to consumers as a convenience.
In addition to returning the § 1026.4(c)(3) exception to its original courtesy conception, an independent justification for the proposed amendments to § 1026.4(c)(3) is that they would further TILA's purposes of promoting the informed use of credit and comparison shopping across credit products. Currently, most non-covered overdraft credit is subject to Regulations DD and E. Although Regulation DD and Regulation E require certain disclosures for overdraft services, neither regulation requires that such non-covered overdraft credit be disclosed as a credit product. Instead, both regulations use terms like overdraft fees, overdraft practices, or overdraft services that tend to obscure the fact that financial institutions are providing consumers a credit product. Applying the Regulation Z regulatory framework would benefit consumers by ensuring that above breakeven overdraft credit is disclosed as a credit product and treated like other credit products. Treating above breakeven overdraft credit like other credit would benefit consumers by helping them understand that they are entering into a contract for a credit product provided by a creditor. Unlike the disclosures required under Regulation DD and Regulation E, the disclosures required by Regulation Z are designed to set forth contractual terms for credit products clearly. Providing such disclosures will help promote the informed use of credit. In addition, treating above breakeven overdraft credit like other credit would benefit consumers by aligning the disclosures for such credit with other credit types and by applying Regulation Z's substantive credit protections consistently across similar credit products.
Further, disclosing above breakeven overdraft credit under the Regulation Z regulatory framework would make it easier for consumers to compare the cost of such credit with the cost of other credit products, such as linked credit cards, because financial institutions would present the credit terms for above breakeven overdraft credit in the same form that creditors present the credit terms of other credit products. In its November 2009 rulemaking finalizing the current Regulation E opt-in rule, the Board acknowledged that, based on its own consumer testing, consumers are interested in receiving more information about alternatives to non-covered overdraft credit services on ATM and one-time debit card transactions prior to deciding whether or not to opt in to such services.
Moreover, the CFPB expects that applying the Regulation Z regulatory framework to above breakeven overdraft credit services would benefit consumers by applying the regulation's existing substantive protections to such credit services. For example, the CFPB's proposal, as discussed in additional detail in this notice, would apply the due date requirement in 1026.7(b)(11)(i)(A), the offset prohibitions in § 1026.12(d)(1), and the ability to pay provisions in § 1026.51 to covered overdraft credit accounts (including credit that currently is non-covered above breakeven overdraft credit) that can be accessed by a hybrid debit-credit card. Therefore, applying Regulation Z to above breakeven overdraft credit would prohibit very large financial institutions from immediately taking funds from any incoming deposit in repayment of the consumer's overdraft balance, would require very large financial institutions to establish due dates on the same day of each billing cycle, and would require very large financial institutions to assess the consumer's ability to pay for such credit—all protections that the current Regulation DD and Regulation E regulatory frameworks do not provide.
The CFPB acknowledges that the current § 1026.4(c)(3) exclusion has existed in its present form for decades and that very large financial institutions have undertaken efforts to ensure that their non-covered overdraft credit services comply with Regulations DD and E. The CFPB also recognizes that some consumers have come to rely on the availability of non-covered overdraft credit. The CFPB's proposal reflects, in part, an effort to balance these reliance interests against the other considerations discussed above in this section. The proposed changes to § 1026.4(c)(3) would require very large financial institutions to comply with Regulation Z when providing above breakeven overdraft credit services, but would allow them to continue to comply with Regulations DD and E when providing non-covered overdraft credit services at or below breakeven pricing. Thus, a very large financial institution that has invested in compliance with Regulations DD and E could maintain its current processes for providing consumers with non-covered overdraft credit so long as it priced such credit at or below breakeven pricing.
During the development of its proposal, the CFPB considered alternatives to its proposed amendment to § 1026.4(c)(3) including (1) striking § 1026.4(c)(3) from Regulation Z in its entirety and (2) updating the opt-in disclosure requirements at § 1005.17 of Regulation E in a manner that would better disclose the costs associated with authorizing non-covered overdraft protection for ATM and debit card transactions.
With respect to the first alternative, the CFPB has preliminarily determined that it should not eliminate all non-covered overdraft credit. The CFPB believes that the proposed amendment to § 1026.4(c)(3) is preferable because it would address the CFPB's concerns relating to consumers' informed use of above breakeven overdraft credit, including a consumer's ability to compare competing credit offers, and apply other substantive protections, including ability to pay requirements and offset restrictions, while allowing very large financial institutions to still offer non-covered overdraft credit as a courtesy if they chose to do so.
With respect to the second alternative, the CFPB preliminarily determined that Regulation E opt-in disclosures would not communicate the cost of above breakeven overdraft credit as effectively as Regulation Z disclosures. As discussed above, applying Regulation Z will ensure that above breakeven overdraft credit is disclosed as a credit product and treated like other credit products. In addition, Regulation E disclosures distinguish between overdraft transactions completed via electronic fund transfers and overdraft transactions completed via other funds transfer methods (such as checks), whereas Regulation Z disclosures would apply identically to above breakeven overdraft transactions regardless of fund transfer method. Modifying the opt-in disclosure requirements at § 1005.17 of Regulation E also would not provide other substantive protections available through Regulation Z, such as the ability to pay requirements and the offset prohibition discussed above. These substantive protections are important. For example, by requiring financial institutions to assess consumers' ability to pay, the proposed rule would ensure that financial institutions confirm that consumers could make the required minimum periodic payments under the terms of their account based on their income or assets and their current obligations. As another example, by prohibiting offset and requiring the due date to be on the same day each month for covered overdraft credit accessible by a hybrid debit-credit card, the proposed rule would give consumers more time to repay overdraft credit and greater control over how to structure those repayments. Therefore, the CFPB preliminarily believes that its proposal better protects consumers than an approach that merely updates the opt-in disclosure requirements at § 1005.17 of Regulation E.
To clarify the circumstances under which overdraft credit offered by a very large financial institution is “above breakeven overdraft credit” for purposes of proposed § 1026.62(b)(1), the CFPB also proposes to add a paragraph at § 1026.62(d).
Proposed § 1026.62(d)(1) would clarify that overdraft credit offered by a very large financial institution is “above breakeven overdraft credit” for purposes of proposed § 1026.62(b)(1) if the charge or combination of charges for such credit exceeds the greater of (1) the pro rata share of the very large financial institution's annual total direct costs and charge-off losses for providing non-covered overdraft credit calculated in accordance with § 1026.62(d)(2); or (2) an estimate published by the CFPB.
For purposes of proposed § 1026.62(d)(1), a “combination of charges” would include all revenue received in connection with an overdraft transaction when determining whether the charges for that transaction exceed its average costs and charge-off losses for providing non-covered overdraft credit, including any extended or sustained overdraft fees, any interest charges on outstanding overdraft balances, and any other payments the very large financial institution receives in connection with an overdraft transaction or transactions.
The approach outlined in proposed § 1026.62(d)(1) would provide a very large financial institution with two methods for determining whether its current charge for an overdraft transaction exceeds the average of its costs and charge-off losses for providing non-covered overdraft credit—the breakeven standard described at proposed § 1026.62(d)(1)(i) and the benchmark fee described at proposed
To employ the breakeven standard described at proposed § 1026.62(d)(1)(i), a very large financial institution would determine its total direct costs and charge-off losses for providing non-covered overdraft credit to all accounts open at any point during the previous 12 months and then divide that figure by the total number of non-covered overdraft transactions attributable to those accounts occurring the previous 12 months. The CFPB proposes to use figures from the prior 12 months because (1) reviewing annualized data would even out any seasonal variations that could occur with a shorter review period; (2) very large financial institutions likely already collect annualized cost and loss data; and (3) reviewing annualized data would require very large financial institutions to make average cost and loss calculations only once per year. When determining the total number of non-covered overdraft transactions occurring the previous 12 months, the financial institution may account for non-covered overdraft transactions that do not incur fees, including those that do not incur fees consistent with fee waiver policies, by excluding from its transaction total any non-covered overdraft transaction for which the financial institution either refunded or did not assess any fee or charge. The CFPB believes that allowing very large financial institutions to adjust their transaction totals to account for overdraft transactions that do not incur fees would give financial institutions flexibility to maintain or to implement fee waiver policies.
Under the proposal, when a very large financial institution applies the breakeven standard either for the first time or after transitioning from the benchmark fee described at proposed § 1026.62(d)(1)(ii), it may include direct costs and charge-off losses from any transaction that was a non-covered overdraft transaction during the prior 12-months even if, applying the breakeven standard, it would have been considered above breakeven overdraft credit during that period. When determining the total number of non-covered overdraft transactions occurring the previous 12 months, a very large financial institution applying the breakeven standard either for the first time or after transitioning from the benchmark fee described at proposed § 1026.62(d)(1)(ii) also may exclude from its transaction total any non-covered overdraft transaction for which the financial institution either refunded or did not assess any fee or charge.
To provide additional guidance regarding the types of costs and charge-off losses a very large financial institution could consider when calculating the breakeven standard, the CFPB also proposes to add a paragraph at § 1026.62(d)(2). Proposed § 1026.62(d)(2) would provide that, when calculating the breakeven standard, a very large financial institution could consider costs and charge-off losses that are specifically traceable to its provision of non-covered overdraft credit in the previous year. The CFPB proposes to allow very large financial institutions to consider only costs and charge-off losses that are specifically traceable to their provision of non-covered overdraft credit to prevent very large financial institutions from employing the breakeven standard in a manner that would circumvent § 1026.62(b)(1). For example, without the specifically traceable restriction, very large financial institutions might include in their average cost and loss calculations costs and charge-off losses that are more appropriately attributable either to other segments of their deposit business or to their deposit business overhead.
Based on its previous experience collecting overdraft cost data from financial institutions, the CFPB has preliminarily determined that specifically traceable costs and charge-off losses would include a very large financial institution's cost of funds for providing non-covered overdraft credit, its charge-off losses for non-covered overdraft credit, and any operational costs that are directly attributable to its non-covered overdraft program. For example, if a very large financial institution uses issue tagging in its call center to reasonably and accurately gauge the number of customer service calls it receives relating to non-covered overdraft credit, direct costs relating to those customer service calls would be specifically traceable and the very large financial institution could include the direct costs relating to those calls in its calculation of costs under the breakeven standard. Conversely, the CFPB preliminarily believes that both general overhead costs and charge-off losses resulting from unauthorized use, EFT errors, billing errors, returned deposit items, or rescinded provisional credit are not specifically traceable to a very large financial institution's provision of non-covered overdraft credit and must not be included in its calculation of costs under the breakeven standard. For example, if a very large financial institution purchases office equipment to support its depository business generally, such costs would not be specifically traceable to its provision of overdraft services and the very large financial institution could not include the cost of such office equipment in its calculation of costs under the breakeven standard.
Under the benchmark fee approach outlined at proposed § 1026.62(d)(1)(ii), a very large financial institution may presume that any charge or combination of charges it imposes for paying a transaction that overdraws an account does not exceed its costs and charge-off losses for providing non-covered overdraft credit if the charge or combination of charges is less than or equal to any benchmark fee established by the CFPB. The CFPB is considering four alternatives for this benchmark fee—$3, $6, $7, and $14. The CFPB views each of these options as potentially viable because, as discussed in additional detail in the following paragraphs, they each apply the calculation method proposed by the breakeven standard to alternative data sets and/or alternative approaches for calculating the total number of non-covered overdraft transactions. (As highlighted at the end of this section, the CFPB seeks comment on each of these alternatives.)
The CFPB requested data, information, and documents from eight financial institutions relating to, among other things, their costs and charge-off losses for providing non-covered overdraft credit in the 2022 calendar year.
The CFPB used the same general formula to calculate all four of the proposed alternative benchmark fees but relied on different datapoints to derive each fee amount. To calculate each benchmark fee, the CFPB first determined the total charge-off losses (excluding losses attributable to unauthorized use, billing errors, rescinded provisional credit, returned deposit items, and other sources not attributable to overdraft transactions) for the financial institutions included in its estimate calculation and then divided that figure by the total number of non-covered overdraft transactions (
To calculate the $3 benchmark fee figure, the CFPB first added together the charge-off losses for the five financial institutions in its sample that produced sufficient data to analyze. Next, the CFPB calculated a charge-off loss per transaction figure by dividing the total charge-off loss figure by the total number of non-covered overdraft transactions paid by those five financial institutions. When tallying the total number of non-covered overdraft transactions for the charge-off loss per transaction figure, the CFPB counted both non-covered overdraft transactions that resulted in an overdraft fee and non-covered overdraft transactions that did not result in an overdraft fee. This approach yielded a charge-off loss per transaction figure of $2 per transaction after rounding to the nearest dollar. The CFPB then added $1 per transaction to this figure to account for the CFPB's estimate of a financial institution's cost of funds and operational costs.
To calculate the $6 benchmark fee figure, the CFPB used the same approach it used to calculate the $3 benchmark fee figure, but changed how it tallied the total number of non-covered overdraft transactions for the charge-off loss per transaction figure. Instead of counting both non-covered overdraft transactions that resulted in an overdraft fee and non-covered overdraft transactions that did not result in an overdraft fee, the CFPB counted only non-covered overdraft transactions that resulted in an overdraft fee. This change increased the charge-off loss per transaction figure to $5 per transaction after rounding to the nearest dollar. The CFPB then added $1 dollar per transaction to this figure to account for the CFPB's estimate of a financial institution's cost of funds and operational costs.
To calculate the $7 benchmark fee figure, the CFPB first identified the financial institution in its sample with the highest charge-off losses. Next, the CFPB calculated a charge-off loss per transaction figure by dividing total charge-off losses by the total number of non-covered overdraft transactions paid by the financial institution. When tallying the total number of non-covered overdraft transactions for the charge-off loss per transaction figure, the CFPB counted both non-covered overdraft transactions that resulted in an overdraft fee and non-covered overdraft transactions that did not result in an overdraft fee. This approach yielded a charge-off loss per transaction figure of $6 per transaction after rounding to the nearest dollar. The CFPB then added $1 dollar per transaction to this figure to account for the CFPB's estimate of a financial institution's cost of funds and operational costs.
To calculate the $14 benchmark fee figure, the CFPB used the same approach it used to calculate the $7 benchmark fee figure (
In addition to amending § 1026.4(c)(3), the proposed rule also would revise the commentary to § 1026.4(c)(3) by adding proposed comment 4(c)(3)-3. Proposed comment 4(c)(3)-3 would direct readers to see proposed § 1026.4(b)(12) for guidance on when fees imposed on a covered asset account as defined in § 1026.62 are finance charges.
The CFPB seeks comment on all aspects of the proposed amendments to § 1026.4(c)(3) and its commentary and on its proposal to add § 1026.62(b)(1) and (d). In particular, the CFPB seeks comment on the following issues:
1. Should the CFPB eliminate the § 1026.4(c)(3) exception for very large financial institutions rather than amend its application to above breakeven overdraft credit?
2. What alternative formulae, if any, should the CFPB consider for calculating costs and charge-off losses for the breakeven standard and the proposed alternative benchmark fee? For example, instead of requiring a very large financial institution to calculate its average costs and charge-off losses for non-covered overdraft across its entire depository account portfolio, should the breakeven standard allow a very large financial institution to make separate calculations of its average costs and charge-off losses for non-covered overdraft within subsets of its depository account portfolio, such as account relationship tiers or average account balance ranges?
3. What are the pros and cons of permitting very large financial institutions to adjust their non-covered overdraft transaction totals to account for their fee waiver policies under the breakeven standard described at proposed § 1026.62(d)(1)(i)?
4. What alternative approaches, if any, should the CFPB consider for calculating the breakeven standard described at proposed § 1026.62(d)(1)(i)? For example, should the CFPB consider an approach that allows very large financial institutions to estimate their costs as a flat dollar amount per transaction, as a percentage of their total asset account costs, or as a percentage of losses?
5. What alternative figures should the CFPB consider, if any, for its cost of funds and operational cost estimates?
6. Which of its proposed benchmark fee figures—$3, $6, $7, and $14—should the CFPB adopt? What alternative figures should the CFPB consider, if any?
7. Should the breakeven standard require the same calculation used to calculate the benchmark fee? For example, if the CFPB finalizes a benchmark fee based on all non-covered overdraft transactions, whether or not the very large financial institution collected a fee in connection with the transaction, should the breakeven standard also require the very large financial institution to calculate their costs based on all non-covered overdraft transactions, whether or not the very large financial institution collected a fee in connection with the transaction?
As discussed below, the CFPB is proposing to change requirements that apply to covered overdraft credit offered by a very large financial institution by: (1) requiring covered overdraft credit to be structured as a separate account; (2) applying additional credit card provisions to covered overdraft credit that can be accessed by a hybrid debit-credit card; and (3) applying Regulation E's compulsory-use prohibition to covered overdraft credit. For existing open-end covered overdraft credit products, the proposed new designation as covered overdraft credit accounts would not impose duplicative or additional account opening requirements.
The CFPB proposes in § 1026.62(c) to prohibit a very large financial institution from structuring covered overdraft credit as a negative balance on a checking or other transaction account. Conversely, the CFPB proposes to require such institution to structure covered overdraft credit as a separate credit account.
The CFPB has preliminarily determined that this structural prohibition and requirement will make it easier for creditors and consumers to implement and understand, respectively, covered overdraft credit. Regulation Z's open-end credit rules generally address independent credit products that do not have substantial positive (asset) funds associated with them. For example, existing § 1026.11(a) generally provides that creditors must refund any asset balances on a credit account to the consumer within six months.
In contrast, overdraft credit, whether or not subject to Regulation Z's requirements, by its nature involves both consumer assets and consumer credit, the purpose of the latter being to cover shortfalls in the former. In the context of overdraft credit, the CFPB has preliminarily determined that requiring the separation of a consumer's asset balance, such as a checking or other transaction account that is a “covered asset account” as defined in proposed § 1026.62(b)(2), from the consumer's credit balance, such as a credit account that is a “covered overdraft credit account” as defined in proposed § 1026.62(b)(4), is an appropriate addition to Regulation Z under its TILA section 105(a) authority, as it is necessary or proper to facilitate creditor compliance and to effectuate the purposes of TILA by helping to avoid the uninformed use of credit and protecting consumers against inaccurate and unfair credit billing and credit card practices. Existing § 1026.61(b), which was established by the Bureau's 2016 Prepaid Final Rule, similarly prohibits credit accounts tied to prepaid accounts from being structured as negative balances on the prepaid accounts and requires that the prepaid account and the tied credit account be separate.
In the context of overdraft credit that is not subject to Regulation Z's requirements, financial institutions today typically provide overdraft credit to consumers through negative balances on consumers' asset accounts. That is, institutions typically provide one account to a consumer, which is regulated as an asset account such as a checking or other transaction account, with an asset balance being a positive balance in the account and an overdraft credit balance being a negative balance in the account. Further, institutions typically obtain repayment of a consumer's negative overdraft credit balance by immediately taking any incoming deposit to the asset account, such as an electronic direct deposit, as repayment (or “offset”) of the account's negative balance. For example, if a consumer's asset account balance is a negative $100 overdraft credit balance and an institution receives a $150 electronic direct deposit which is to be credited to the consumer's account, the institution immediately takes the first $100 of the electronic deposit to repay the consumer's overdraft credit balance, such that the consumer's account balance subsequent to the institution's receipt of the electronic direct deposit is a positive asset balance of $50.
This practice by institutions of immediately taking incoming deposits as repayment of overdrafts is known as “offset.” Regulation Z generally prohibits offset in connection with covered overdraft credit, as defined in proposed 1026.62(b)(3), which can typically be accessed by a “credit card” as defined in 1026.2(a)(15).
Accordingly, the CFPB has preliminarily determined that the proposed requirement in § 1026.62(c) to structure covered overdraft credit as a separate credit account that is separate from the checking or other transaction account will enable institutions to comply with the TILA and Regulation Z offset prohibition. Specifically, the CFPB has preliminarily determined that that proposed requirement would facilitate compliance with the TILA and Regulation Z offset prohibition by requiring an institution to retain at the same time both an outstanding overdraft credit balance and an outstanding asset balance for a consumer. Conversely, the CFPB has preliminarily determined that it is difficult or impossible for an institution to maintain both an asset (positive) balance and a credit (negative) balance at the same time for a consumer within a single asset account and that it is therefore difficult or impossible for the institution to provide overdraft credit to the consumer in a manner that complies with Regulation Z without providing the consumer with an asset account and a credit account that are separate from each other.
In addition, the CFPB has preliminarily determined that the proposed requirement to structure covered overdraft credit as a separate credit account would (1) protect consumers against inaccurate and unfair credit billing and credit card practices by enabling them to exercise control over their funds and (2) avoid the uninformed use of credit by enabling consumers to better understand their asset and credit balances. With respect to protecting consumers by enabling them to control their funds, the requirement will facilitate consumers' ability to control incoming deposits to their accounts and use them for purposes other than immediately repaying an overdraft balance, as the offset prohibition requires institutions to permit consumers to do. For example, continuing the example above, rather than the institution immediately using the incoming $150 electronic direct deposit to eliminate the $100 negative overdraft balance in the single account, under the proposed separate-account structure the consumer might use the electronically deposited funds to pay a phone or electric bill and to retain the unpaid $100 balance in the separate credit account (
With respect to avoiding the uninformed use of credit by enabling consumers to understand their asset and credit balances, the requirement for separate accounts will enable consumers to better monitor their account balances and trace how their funds are being used through the better disclosures (
Further, if the consumer were to subsequently choose to use the $150 asset funds to repay the overdraft, the consumer would at that later point in time see on the statements the following data points on the asset account and credit account: (1) a debit entry of $100 to the asset account for repayment of the overdraft credit balance, (2) a resulting balance in the asset account of $50, (3) a credit entry of $100 to the credit account, and (4) a resulting balance in the credit account of $0. In contrast,
If the CFPB finalizes the rule as proposed, very large financial institutions that offer overdraft services on existing accounts may need to take steps to come into compliance with Regulation Z. For example, assume that prior to the effective date of this proposed rule, a very large financial institution through negative balances on a deposit account provides above breakeven overdraft credit that is not subject to Regulation Z to a consumer, and assume further that the institution seeks to continue to provide above breakeven overdraft credit to the consumer subsequent to the effective date of the proposed rule. After the proposed rule's effective date, such above breakeven overdraft credit would be covered overdraft credit, and proposed § 1026.62(c) of the proposed rule (discussed in the preceding paragraphs) would require the institution to provide the covered overdraft credit to the consumer through a separate covered overdraft credit account. Therefore, to provide above
In light of these requirements that the prepaid accounts rule attaches to covered credit subaccounts tied to prepaid asset accounts (
Credit cards and card issuers are generally subject to additional requirements in Regulation Z. The requirements that apply generally depend on whether the credit account can be accessed by a “credit card,” “credit card account under an open-end (not home-secured) consumer credit plan,” or “charge card” under Regulation Z. Currently, a covered overdraft credit account that can be accessed by a debit card or other device that qualifies as a credit card (including certain account numbers) is subject to some Regulation Z requirements that apply to “credit cards.” Such covered overdraft credit is not subject to requirements that apply to a “credit card account under an open-end (not home-secured) consumer credit plan.” It is also specifically excepted from some of the requirements that apply to “credit cards.” As discussed in more detail below, the CFPB is proposing to apply all credit card provisions generally to covered overdraft credit accounts if the credit can be accessed by a hybrid debit-credit card, as defined in this proposal, such as a debit card offered by a very large financial institution.
The CFPB is proposing to subject all covered overdraft credit to the CARD Act provisions of Regulation Z in subparts G and B (the CARD Act provisions) if that credit is (1) open-end credit; (2) accessible by a credit card; and (3) offered by a very large financial institution. Currently, covered overdraft credit accessible by a debit card is considered a credit card under Regulation Z and generally is subject to the Regulation Z provisions that apply to credit cards, but, because of two non-statutory exceptions, such overdraft credit is not subject to the CARD Act provisions.
The CARD Act amended TILA to institute new substantive and disclosure requirements to establish fair and transparent practices for open-end consumer credit card plans. The CARD Act addressed multiple aspects of the credit card market, regulating, among other things, rate increases, the imposition of penalty fees, the timing of payments, the issuance of subprime credit cards, ability to pay assessments, the specifics of certain credit card disclosures, the marketing of credit reports, and the marketing of credit cards to young consumers.
The statutory language of the CARD Act applies the protections broadly to credit card products that can access open-end consumer credit. The CARD Act generally applies to any “credit card account under an open-end consumer credit plan.” Absent two non-statutory exceptions, this broad language generally would apply to open-end covered overdraft credit that is accessed by a credit card, including a debit card.
The Board implemented this statutory language in Regulation Z in 2010 through the term “credit card account under an open-end (not home-secured) consumer credit plan.”
However, overdraft lines of credit are not subject to the CARD Act provisions in subpart G and subpart B that apply to a “credit card account under an open-end (not home-secured) consumer credit plan” because the Board adopted two exceptions that exclude overdraft lines of credit from that definition. Current § 1026.2(a)(15)(ii)(B) and (C), respectively, except from this definition (1) an overdraft line of credit that is accessed by a debit card; and (2) an overdraft line of credit that is accessed by an account number other than an account number that is a hybrid prepaid-credit card and that can access a covered separate credit feature as defined in § 1026.61. Although Regulation Z does not define “overdraft line of credit,” the term is generally understood to refer to an open-end credit product tied to an asset account. Funds are advanced from the credit product to pay for a withdrawal when the consumer withdraws more money than they have in the asset account.
Aside from the CARD Act provisions in subpart G and subpart B, currently these overdraft line of credit products are generally subject to Regulation Z's open-end credit rules when the fees and other charges imposed on this product are finance charges.
The Board acknowledged in its February 2010 Rule that it believed that, as a general matter, Congress intended the CARD Act to apply broadly to products that meet the definition of a credit card.
Nevertheless, the Board relied on its authority under TILA section 105(a) and section 2 of the CARD Act to create two exceptions for overdraft lines of credit, including one for debit cards that can access an overdraft line of credit. As a result of the exceptions, such accounts are not subject to the various CARD Act provisions in subpart G and subpart B, as discussed below, that apply to a “credit card account under an open-end (not home-secured) consumer credit plan.” In creating the exceptions, the Board stated that, at the time, Regulation Z-covered overdraft lines of credit were not in wide use and that, as a general matter, creditors who offered overdraft lines of credit did not engage in some of the practices regulated by the CARD Act provisions with respect to those products.
The CFPB is proposing to amend the non-statutory overdraft-related exceptions so that a very large financial institution that offers open-end covered overdraft credit that can be accessed by a “credit card” must comply with provisions that apply to a “credit card account under an open-end (not home-secured) consumer credit plan.” As a result, open-end covered overdraft credit that can be accessed by a “credit card,” including a debit card, would be
The CFPB has preliminarily determined that the exceptions are no longer appropriate. While the Board created those exceptions based on the understanding that overdraft lines of credit were not in “wide use” at the time and did not include features common to other credit cards, the CFPB has preliminarily determined that the prevalence or nature of a particular type of credit card should not render it beyond the scope of the CARD Act. By its plain terms, the CARD Act applies to all “credit card account[s] under an open-end consumer credit plan,” which, as noted above, would include open-end overdraft credit accessible by a credit card. In any event, the CFPB anticipates that the market for covered overdraft credit could react to the proposed changes in this rulemaking, if finalized, in several ways, including by offering covered overdraft credit to many consumers who currently receive non-covered overdraft credit, including subprime consumers.
Very large financial institutions could also react to the proposed changes by offering different terms on covered overdraft credit than those that have historically been offered. For example, financial institutions could start marketing covered overdraft credit as a long-term credit solution and could begin imposing different rates on different balances. In addition, consistent with the current non-covered overdraft credit market, financial institutions could allow for grace periods before imposing finance charges. Similarly, other protections, such as the requirement to assess ability to pay, the fee limitations provision, and the limits on penalty fees, may become even more important if covered overdraft credit is offered to more subprime consumers.
The CFPB also has preliminarily determined that the CARD Act provisions would provide important consumer protections to those consumers most likely to use covered overdraft credit accounts. Today, a small subset of consumers (approximately 10 percent of consumers), whom the CFPB has in the past referred to as “frequent overdrafters,” incur most overdraft fees. In light of the CFPB's proposed treatment of the overdraft fee that a very large financial institution may charge for non-covered overdraft, the CFPB expects that some very large financial institutions will have reduced incentives to provide non-covered overdraft credit to the subprime consumers who are frequent overdrafters and today incur the preponderance of overdraft fees. Instead of providing these consumers with non-covered overdraft credit, some very large financial institutions may provide these consumers with covered overdraft credit accounts—the accounts to which the CFPB is proposing to apply the CARD Act provisions—which would allow them the flexibility to charge more than the threshold that cannot be exceeded to remain non-covered overdraft credit.
The CFPB also has preliminarily determined that applying the CARD Act provisions as proposed could provide important benefits to subprime consumers. Many of the provisions of the CARD Act target credit card practices affecting subprime consumers. To the extent that some financial institutions would offer covered overdraft credit to more subprime consumers if the proposed rule were adopted, these CARD Act provisions would offer additional protections to consumers with a debit card that accesses overdraft credit. This will result in a consumer who uses a debit card to access overdraft credit—who often is a subprime consumer—receiving the same protections that a subprime credit card consumer receives today, consistent with the broad statutory language in the CARD Act.
To prevent the market for Regulation Z-covered overdraft from posing consumer risks after the rule goes into effect, and to carry out the purposes of TILA by promoting the informed use of credit and protecting consumers against unfair credit card practices pursuant to TILA section 105(a), and to carry out the CARD Act pursuant to section 2 of the CARD Act, the CFPB is proposing to subject covered overdraft credit to the CARD Act provisions in subpart G and subpart B when such credit can be accessed by a credit card and is offered by a very large financial institution. This would revise non-statutory exceptions so that Regulation Z's coverage more closely aligns with the plain language of the CARD Act.
The CFPB invites comment on the proposal to subject covered overdraft credit to the CARD Act provisions in subpart G and subpart B. In particular, the CFPB seeks comment on potential impacts of a finalized rule, if any, on the market for covered overdraft credit and the resulting effects of market changes on consumers. The CFPB also seeks comment on the costs and benefits to these consumers of the CARD Act protections in subpart G and subpart B. The CFPB also requests comment on whether clarification is needed or whether there are operational challenges regarding the application of specific CARD Act provisions to covered overdraft credit. The CFPB also seeks comment on what, if any, operational costs might arise as a result.
The proposed rule would subject all covered overdraft credit to the CARD Act provisions in subparts G and B if that credit is (1) open-end credit; (2) accessible by a credit card; and (3) offered by a very large financial institution. The proposed rule would also add a new definition of “hybrid debit-credit card,” and amend the definitions of “credit card,” and “credit card account under an open-end (not home-secured) consumer credit plan.” The proposal would also make other clarifying changes to the rule text and associated commentary. These technical and clarifying changes are discussed in more detail below.
In proposed § 1026.62(b)(5), the CFPB is proposing to define the new term “hybrid debit-credit card” for clarity and ease of reference. The CFPB proposes to define “hybrid debit-credit card” to mean any card, plate, or other single credit device that a consumer may use to obtain covered overdraft credit from a very large financial institution. This proposed definition describes a type of credit card that has two defining characteristics: (1) the credit card must be able to access covered overdraft credit; and (2) the covered overdraft credit must be offered by a very large financial institution. This definition would include, for example, a debit card that a consumer can use to complete transactions using funds drawn from an asset account held at a very large financial institution when that device can also be used to access covered overdraft credit.
TILA defines “credit card” as “any card, plate, coupon book or other credit device existing for the purpose of obtaining money, property, labor, or services on credit.”
First, the CFPB is proposing various non-substantive wording revisions in § 1026.2(a)(15)(i) to clarify that a debit card that can access a covered overdraft credit account is a credit card. These changes are non-substantive because, under Regulation Z today, a debit card that can access an overdraft line of credit is a credit card.
Similarly, the CFPB is proposing to revise comment 2(a)(15)-2.i.B to clarify that a hybrid debit-credit card is a type of debit card that also accesses a credit account, such as a covered overdraft credit account.
To further clarify what is and is not a “credit card” in light of proposed definitions and proposed changes to the definition of “finance charge,” the CFPB is also proposing to amend several examples in the commentary to § 1026.2(a)(15)(i) and (ii). In comment 2(a)(15)-2.i.A, the CFPB is proposing to replace the undefined term “overdraft line of credit” with a new proposed term “covered overdraft credit.” In comment 2(a)(15)-2.ii.C, the CFPB is proposing amendments to clarify that an account number is a credit card when it can access covered overdraft credit if the account number can use the credit accessed to purchase goods and services.
The CFPB is also proposing to amend comment 2(a)(15)-2.ii.A and add comment 2(a)(15)-2.ii.E to ensure that the examples of what is not a credit card clarify that allowing a card, plate, or other single credit device to access non-covered overdraft credit does not trigger Regulation Z's credit card requirements. As explained in current § 1026.1(c)(2), where a credit card is involved, certain provisions of Regulation Z apply even if the credit is not subject to a finance charge or is not payable by a written agreement in more than four installments. However, comment 2(a)(15)-2.ii.A clarifies that a check-guarantee or debit card with no credit feature or agreement is not a credit card “even if the creditor occasionally honors an inadvertent overdraft.” In other words, a financial institution that allows a debit card or check-guarantee card to access non-covered overdraft—including overdraft where the financial institution does not impose a “finance charge,” either because it does not impose a fee or because any fee charged is not considered a finance charge under § 1026.4(c)(3)—does not have to comply with Regulation Z's credit card provisions, even though such cards would otherwise meet the definition of “credit card.” As discussed above, currently, § 1026.4(c)(3) provides that overdraft charges are not finance charges if the payment of such items and the imposition of the charge were not previously agreed upon in writing. Thus, financial institutions may pay an inadvertent overdraft and charge for it without complying with Regulation Z as long as the payment of the overdraft and associated charges are consistent with the provision. The CFPB is proposing to modify the exception from the definition of finance charge in § 1026.4(c)(3) so that certain overdraft-related charges are finance charges even if the financial institution does not agree in advance to pay the items. If finalized, some charges for paying overdrafts that may otherwise be characterized as occasional or inadvertent would be considered finance charges. To ensure the commentary aligns with the exception in § 1026.4(c)(3) and clarify that allowing a consumer to access non-covered overdraft credit using a debit card does not trigger credit card requirements in Regulation Z, the CFPB is proposing to: (1) amend comment 2(a)(15)-2.ii.A by deleting the phrase “even if the creditor occasionally honors an inadvertent overdraft;” and (2) add comment 2(a)(15)-2.ii.E to clarify that a check-guarantee or debit card that can only access non-covered overdraft credit is not a “credit card”.
The CFPB is proposing to amend the definition of “credit card account under an open-end (not home-secured) consumer credit plan” in § 1026.2(a)(15)(ii) by narrowing the two overdraft-related exceptions so that open-end covered overdraft credit offered by a very large financial institution would no longer be excepted from the definition of a “credit card account under an open-end (not home-secured) consumer credit plan.” Such credit offered by a very large financial institution would be subject to the CARD Act provisions in subpart G and subpart B.
These changes would subject all covered overdraft credit to the CARD Act provisions in subparts G and B if that credit is accessible by a credit card and offered by a very large financial institution.
The CARD Act provisions that the CFPB is proposing to apply to hybrid debit-credit cards include the following:
• The requirement in § 1026.51 to assess the consumer's ability to pay the credit extended, such as covered overdraft credit, including special rules regarding the extension of credit to persons under the age of 21. This may provide an incentive for institutions to structure and price covered overdraft credit such that consumers are better able to repay it, relative to current non-covered overdraft credit.
• The restriction in § 1026.52(a) on the amount of certain fees, such as overdraft fees, that an issuer can charge during the first year after opening of a credit account, such as a covered overdraft credit account, to 25 percent of the credit limit. This restriction does not apply to charges assessed as periodic rates. This may provide an incentive for institutions to reduce or eliminate flat fees for overdraft and to instead apply periodic rates that must be disclosed as APRs. The CFPB has preliminarily determined that this change in the manner and disclosure of overdraft credit pricing would improve consumers' ability to understand the price of the credit, and to compare it to
• The limit in § 1026.52(b)(1) on the amount card issuers can charge for “back-end” penalty fees, such as when a consumer makes a late payment or exceeds their credit limit. This may provide an incentive for institutions to rely more on non-penalty charges that are disclosed as part of the upfront price of the covered overdraft credit.
• The prohibition in § 1026.52(b)(2) on “declined transaction fees” and other penalty fees where there is no cost to the card issuer associated with the violation of the account agreement. As discussed below, applying this provision to a covered overdraft credit account accessed by a hybrid debit-credit card would prohibit declined debit card transaction fees on accounts with a covered overdraft credit account accessed by a hybrid debit-credit card. This provision would also prohibit declined ACH transaction fees where the card issuer declines an attempted ACH payment and would otherwise impose a fee on the cardholder for doing so. Consistent with comment 52(b)(2)(i)-4, this provision would permit a card issuer to impose a fee for declining a check that attempts to access a covered overdraft credit account because such a check is “a check that accesses a credit card account.” Such a fee would still be limited by § 1026.52(b)(1). The CFPB has preliminarily determined that this prohibition on declined transaction fees limit could lead institutions to shift away from back-end fees and toward upfront pricing in the form of periodic rates disclosed as APRs.
• The provisions in § 1026.53 regarding how a card issuer must allocate payments in excess of the minimum periodic payment.
• The limitation in § 1026.54 on card issuers imposing a finance charge as a result of the loss of a grace period.
• The prohibition in § 1026.55 on increases in any APR, fee, or finance charge applicable to any outstanding balance on a credit card account, with exceptions where advance notice is provided, with a requirement that the promotional rate generally cannot expire earlier than six months, and the requirement in § 1026.59 that card issuers reevaluate rate increases.
• The restriction in § 1026.56 on fees for over-the-limit transactions to one per billing cycle and the requirement that the consumer opt-in to payment of such transactions in order for the fee to be charged.
• The requirement in § 1026.57 that institutions of higher education publicly disclose agreements with card issuers and limit the marketing of credit cards on or near college campuses.
• The requirement in § 1026.58 that card issuers submit credit card agreements to the CFPB on a quarterly basis.
This proposal would also require very large financial institutions to comply with the following CARD Act-derived disclosure-related requirements in subpart B with respect to covered overdraft credit accounts accessed by a hybrid debit-credit card:
• The timing requirements in § 1026.5(b)(2)(ii)(A) for disclosures sent with respect to a credit card account under an open-end (not home-secured) consumer credit plan.
• The rate-disclosure requirements in § 1026.6(b)(2)(i)(F) for account-opening statements specific to a credit card account under an open-end (not home-secured) consumer credit plan.
• The due date disclosure, repayment disclosure, and format requirements for periodic statements specific to a credit card account under an open-end (not home-secured) consumer credit plan in § 1026.7(b)(11)(i), (b)(12)(i), (b)(13).
• The subsequent disclosure requirements specific to a credit card account under an open-end (not home-secured) consumer credit plan in § 1026.9(c)(2)(iv)(A)(8), (c)(2)(iv)(B)-(C), (g)(3)(i)(A)(
• The payments-related requirements specific to a credit card account under an open-end (not home secured) consumer credit plan in § 1026.10(b)(3), (e).
• The requirements in § 1026.11(c)(1)(i) related to the timely settlement of estate debts for a credit card account under an open-end (not home-secured) consumer credit plan.
In addition to the proposed amendments to the definition of “credit card” and “credit card account under an open-end (not home-secured) consumer credit plan,” the CFPB is also proposing conforming and clarifying changes to the commentary for §§ 1026.55 and 1026.57 to reflect the changes discussed in this section. In particular, the CFPB is proposing to add comment 55(a)-5 to clarify that the limitations on increasing annual percentage rates, fees, and charges apply to fees imposed in connection with covered overdraft credit whether those fees are imposed on the covered overdraft credit account or the associated covered asset account. Finally, the CFPB is proposing to amend comment 57(a)(1)-1 so that it would continue to accurately reflect the exceptions from the definition of credit card issued under a credit card account under an open-end (not home-secured) consumer credit plan if changes to that definition are finalized as proposed.
Among the CARD Act provisions discussed above, one of them, § 1026.52(b), raises complex policy considerations that the CFPB believes are important to address in more detail. Section 1026.52(b) regulates the imposition of penalty fees on a credit card account under an open-end (not home secured) consumer credit plan. TILA refers to a “penalty fee” as a fee imposed “in connection with any omission with respect to, or violation of, the cardholder agreement,” and it permits only a penalty fee that is “reasonable and proportional to the amount of such omission or violation.”
When applied to a covered overdraft credit account accessed by a hybrid debit-credit card, § 1026.52(b)(2)(B)(
Thus, for a covered overdraft account accessed by a hybrid debit-credit card, 15 U.S.C. 1665d(a) and § 1026.52(b) would prohibit any fee for a potentially overdrawing transaction that the card issuer declines to authorize. This would include declined debit card transactions as well as declined ACH transactions. However, as explained in comment 52(b)(2)(i)-4, the prohibition on fees for transactions that a card issuer declines to authorize does not extend to fees imposed for declining a “check that can access a credit card account.”
With respect to declined transactions other than declined check transactions, the CFPB has preliminarily determined that the Board's rationale in adopting § 1026.52(b)(2) continues to apply. That is, it appears that there is no dollar amount associated with a declined transaction and the imposition of the fee does not appear to be related to costs incurred by the card issuer. The CFPB recognizes that it may be possible that such fees could have a deterrent effect or could affect the consumer's conduct in certain limited situations. However, there does not appear to be any need for the financial institution to attempt to deter or influence the consumer's conduct in this situation, particularly in light of minimal costs and risks to the card issuer. With respect to costs, because the mechanism for authorizing or declining a transaction is generally automated, the CFPB understands that declining transactions imposes very minimal or no costs, which would not support imposing a penalty fee. The CFPB understands this to be the case across several payment channels, including for payments initiated via debit card, payments occurring on an ACH network, and other online payments. To the extent there are certain minimal costs associated with the automated authorization and declination of transactions generally, card issuers can consider whether other sources of revenue might allow them to recoup those costs.
The CFPB notes that these considerations may apply equally to declined checks. However, the CFPB is not proposing at this time to reconsider the Board's prior decision to permit some amount of a fee in connection with declining to pay a check that accesses a credit card account and would apply the same approach to checks issued in connection with a checking or other transaction account with a connected covered overdraft credit account accessible by a hybrid debit-credit card.
Accordingly, after considering the factors in 15 U.S.C. 1665d, the CFPB is not proposing any amendments to § 1026.52(b).
Existing § 1026.12 contains special rules applicable to credit cards and credit card accounts, including rules regarding the conditions under which a credit card may be issued, liability of cardholders for unauthorized use, cardholder rights to assert merchant claims and defenses against the card issuer, and the prohibition on offsets by issuers.
The proposal would revise the commentary to § 1026.12 to clarify how the special card provisions of § 1026.12 apply to hybrid debit-credit cards. Specifically, the proposal would add a sentence to comment 12-1 clarifying that paragraphs (a) through (f) of § 1026.12 apply to hybrid debit-credit cards notwithstanding paragraph (g). Paragraph (g) addresses whether Regulation Z or Regulation E controls in instances where a transaction involves both credit and electronic fund transfer aspects. The proposed revision to comment 12-1 is intended to clarify that the provisions of § 1026.12 relating to card issuance and liability apply to hybrid debit-credit cards.
As discussed in greater detail below, the proposal would provide additional guidance on unsolicited issuance in § 1026.12(a) and the right of a cardholder to assert claims or defenses against a card issuer in § 1026.12(c).
TILA section 132 generally prohibits creditors from issuing credit cards except in response to a request or an application. TILA section 132 explicitly exempts credit cards issued as renewals of or substitutes for previously accepted credit cards from this prohibition.
Section 1026.12(a) of Regulation Z implements TILA section 132 and provides that “[r]egardless of the purpose for which a credit card is to be used, including business, commercial, or agricultural use, no credit card shall be issued to any person except: (1) In response to an oral or written request or application for the card; or (2) As a renewal of, or substitute for, an accepted credit card.” The proposal would provide guidance on how the prohibition on issuing unsolicited credit cards applies to hybrid debit-credit cards.
Comment 12(a)(1)-1 states that “[a] request or application for a card must be explicit” and that “a request for an overdraft plan tied to a checking account does not constitute an application for a credit card with overdraft checking features.” However, as discussed in greater detail in part [IV.E.2.i], under the proposal, a hybrid debit-credit card would be a credit card that a consumer may use from time to time to obtain covered overdraft credit from a very large financial institution. Therefore, the prohibition on issuing unsolicited credit cards set forth in § 1026.12(a)(1) would apply to hybrid debit-credit cards. As a result, a request for covered overdraft credit from a very large financial institution would constitute an application for a credit card with overdraft features to the extent such credit would be accessible
The proposed rule also would amend comment 12(a)(1)-2. Comment 12(a)(1)-2 explains that the addition of a credit feature or plan to a non-credit card that would turn that card into a credit card constitutes issuance of a credit card. The comment then provides two examples of scenarios that would constitute issuance of a credit card. The proposed rule would amend comment 12(a)(1)-2 by adding a third example relating to hybrid debit-credit cards as comment 12(a)(1)-2.iii. Proposed comment 12(a)(1)-2.iii would state that extending covered overdraft credit through a hybrid debit-credit card as defined in § 1026.62 would constitute issuance of a credit card. For example, if a very large financial institution initially allowed a consumer to use a debit card to access overdraft credit that is not “covered overdraft credit” as defined in § 1026.62, the very large financial institution would be issuing a credit card if it then allowed the consumer to use the same card to access covered overdraft credit. Under that scenario, the debit card would convert into a hybrid debit-credit card subject to the requirements of § 1026.12(a).
Comment 12(a)(2)-5 (the so-called “one for one” rule) explains that an accepted card generally may be replaced by no more than one renewal or substitute card. For example, the card issuer may not replace a credit card permitting purchases and cash advances with two cards, one for the purchases and another for the cash advances. However, comment 12(a)(2)-6 provides three exceptions to this general “one for one” rule. First, comment 12(a)(2)-6.i explains that the unsolicited issuance rule in § 1026.12(a) does not prohibit the card issuer from replacing a debit/credit card with a credit card and another card with only debit functions (or debit functions plus an associated overdraft capability), since the latter card could be issued on an unsolicited basis under Regulation E. Second, comment 12(a)(2)-6.ii explains that § 1026.12(a) does not prohibit a card issuer from replacing a single card that is both a prepaid card and a credit card with a credit card and a separate prepaid card where the latter card is not a hybrid prepaid-credit card as defined in § 1026.61. Finally, comment 12(a)(2)-6.iii explains that § 1026.12(a) does not prohibit a card issuer from replacing an accepted card with more than one renewal or substitute card, provided that: “(A) No replacement card accesses any account not accessed by the accepted card; (B) For terms and conditions required to be disclosed under § 1026.6, all replacement cards are issued subject to the same terms and conditions, except that a creditor may vary terms for which no change in terms notice is required under § 1026.9(c); and (3) Under the account's terms the consumer's total liability for unauthorized use with respect to the account does not increase.”
The proposal would amend comment 12(a)(2)-6 by revising comment 12(a)(2)-6.i in two respects. First, it would explain that a hybrid debit-credit card is an example of a single card that is both a debit card and a credit card. Second, it would remove the phrase “an associated overdraft capability” in the parenthetical and replace it with the phrase “an associated capability to extend overdraft credit that is not covered overdraft credit as defined in § 1026.62.” The purpose of these proposed changes is to clarify that a very large financial institution may replace a hybrid debit-credit card with a credit card and a separate debit card so long as the separate debit card does not provide the capability to extend covered overdraft credit (
When a cardholder has a dispute with a person honoring the credit card, TILA section 170 generally provides that the cardholder may assert against the card issuer all claims (other than tort claims) and defenses arising out of the transaction.
TILA does not except overdraft credit from the scope of cardholders' right to assert claims or defenses against card issuers. However, in 1981 the Board created a non-statutory exception for the use of a debit card in connection with an overdraft credit plan.
As discussed above, the CFPB has preliminarily determined that it would be appropriate to update exceptions in Regulation Z and thus increase consumer protections that apply to covered overdraft credit offered by very large financial institutions. The proposed rule would not change the current overdraft exceptions for financial institutions with total assets of $10 billion or less.
Accordingly, the CFPB proposes to narrow the overdraft exception in comment 12(c)-3 by adding the phrase “other than a hybrid debit-credit card.” As discussed above, under proposed § 1026.62(b)(5) a “hybrid debit-credit card” would include a debit card that a consumer may use from time to time to obtain covered overdraft credit from a very large financial institution. Such cards would be covered by the consumer protections in § 1026.12(c). The CFPB has preliminarily determined that operational concerns alluded to by the Board in 1981 may no longer justify the overdraft exception in comment 12(c)-3, particularly for very large financial institutions, given advances in information technology systems over the last 40 years. The current exception would not change for financial institutions with total assets of $10 billion or less.
The CFPB further proposes conforming revisions to the commentary for § 1026.12(c)(1). First, the CFPB would revise comment 12(c)(1)-1. The current comment explains that the scope of cardholders' right to assert claims or defenses against card issuers only includes situations where the goods or services are “purchased with the credit card.” The comment provides examples of situations that are included and excluded. To facilitate compliance with the proposed rule, the CFPB would
Second, the CFPB would revise comment 12(c)(1)-1.ii. The current comment explains that credit card protections in § 1026.12(c) do not apply to the purchase of goods or services by use of a check accessing an overdraft account and a credit card used solely for identification of the consumer. The current comment further illustrates that, if the credit card is used to make partial payment for the purchase and not merely for identification, the right to assert claims or defenses would apply to credit extended via the credit card (although not to credit extended by the overdraft line). The current comment also provides that the right would apply to credit extended through a covered separate credit feature accessible by a hybrid prepaid-credit card. To facilitate compliance with the proposed rule, the CFPB would revise comment 12(c)(1)-1.ii to provide an example illustrating that if partial payment for the purchase is made with a hybrid prepaid-credit card or a hybrid debit-credit card, the right to assert claims or defenses would apply to credit accessed from a covered separate credit feature or covered overdraft credit account, respectively.
Third, the CFPB would revise comment 12(c)(1)-1.iv. Current comment 12(c)(1)-1.iv cross-references comment 12(c)-3 and explains that credit card protections in § 1026.12(c) do not apply to purchases effected by use of either a check guarantee card or a debit card when used to draw on overdraft credit plans. The current comment further illustrates that, if a card serves both as an ordinary credit card and also as a check guarantee or debit card, a transaction will be subject to the provisions on asserting claims and defenses when used as an ordinary credit card, but not when used as a check guarantee or debit card. As discussed above, the CFPB proposes to narrow the overdraft exception in comment 12(c)-3. To reflect that proposed change, CFPB also proposes conforming revisions to comment 12(c)(1)-1.iv, which would provide that the right to assert claims or defenses would apply to purchases effected by use of a hybrid debit-credit card to access a covered overdraft credit account. The CFPB would also revise comment 12(c)(1)-1.iv to provide an example illustrating that for purchases effected by use of a hybrid debit-credit card where the transaction is partially paid with funds from the asset account, and partially paid with covered overdraft credit, the provisions of § 1026.12(c) apply only to the credit portion of the purchase transaction. The CFPB would also correct a typographical error in comment 12(c)(1)-1.iv by inserting the article “a” that is currently missing before “check guarantee or debit card.”
The CFPB seeks comment on the proposed narrowing of the overdraft exception in comment 12(c)-3, including what, if any, operational issues might arise as a result. The CFPB also seeks comment on the proposed conforming revisions to the commentary for § 1026.12(c)(1).
Existing § 1026.60 includes certain requirements related to applications and solicitations for credit cards. Among other things, it requires certain disclosures in connection with credit card applications and solicitations and prescribes content and format of the application or solicitation. Existing § 1026.60(a)(5) excepts certain types of credit from the requirements of § 1026.60, including § 1026.60(a)(5)(ii), which excepts overdraft lines of credit tied to asset accounts accessed by check-guarantee cards or by debit cards; § 1026.60(a)(5)(iii), which excepts lines of credit accessed by check-guarantee cards or by debit cards that can be used only at automated teller machines; and § 1026.60(a)(5)(iv), which excepts lines of credit accessed solely by account numbers except for a covered separate credit feature solely accessible by an account number that is a hybrid prepaid-debit card as defined in § 1026.61.
The requirements in § 1026.60 implement provisions of the Fair Credit and Charge Card Disclosure Act of 1988.
The CFPB has preliminarily determined that, as with the CARD Act provisions, covered overdraft offered by a very large financial institution that is accessible by a card, including a debit card, should be subject to the requirements of § 1026.60. In excepting certain types of credit from those requirements, the Board noted only that the requirements should apply only to “traditional” credit cards that are used to purchase goods and services. However, given the expanded use of debit cards to purchase goods and services, many of which are linked to accounts that offer overdraft credit, the distinction between “traditional” credit cards and debit cards that can access overdraft credit appears far less clear. The CFPB has preliminarily determined that the requirements of § 1026.60 should be applied consistent with the broad statutory language to cards that can access covered overdraft credit, and that doing so will carry out the purposes of TILA by assuring a meaningful disclosure of credit terms and avoiding the uninformed use of credit.
Accordingly, the CFPB is proposing to amend § 1026.60 to narrow the exception for overdraft lines of credit. Specifically, the proposal would amend § 1026.60(a)(5)(ii), (iii), and (iv) so that those exceptions would not apply to covered overdraft credit accessed by a hybrid debit-credit card. As explained above, the CFPB is proposing to define a “hybrid debit-credit card” as any card (including a debit card) that can access covered overdraft credit offered by a very large financial institution. Accordingly, the proposed amendments to § 1026.60(a)(5)(ii), (iii), and (iv) would narrow the exception so that the requirements of § 1026.60 would apply to covered overdraft credit offered by a very large financial institution when that credit can be accessed by any card, including a debit card.
The CFPB proposes to amend the definition of “charge card” in § 1026.2(a)(15)(iii) to exclude a hybrid debit-credit card from the definition. Under the proposed amendment, a hybrid debit-credit card would be subject to the same disclosure and other rules as other credit cards, rather than certain special rules for charge cards. The CFPB has preliminarily determined that consumers using hybrid debit-credit cards would benefit from the
TILA defines “charge card” as “a card, plate, or other single credit device that may be used from time to time to obtain credit which is not subject to a finance charge.”
Under both the statutory and regulatory definitions, a charge card is a type of credit card. Thus, where Regulation Z provisions apply to credit cards, the provisions also apply to charge cards. However, in specific provisions, which are listed in comment 2(a)(15)-3.i, the term charge card is distinguished from credit card such that different requirements apply. One example of such a provision is § 1026.7(b)(11), which, in accordance with TILA, requires on credit card periodic statements the disclosure of a payment due date and requires that that date be the same day of the month for each billing cycle. The Board in Regulation Z excluded charge cards from these requirements.
The proposed definition of hybrid debit-credit card would encompass devices that can access overdraft credit and are subject to finance charges, including devices that are subject to fees but not a periodic interest rate. Hybrid debit-credit cards would therefore
The CFPB understands that charge cards are typically offered to higher income individuals with prime or super-prime credit, and they often have no set credit limit.
The CFPB proposes to apply the Regulation E compulsory-use prohibition to covered overdraft credit extended by very large financial institutions—
EFTA section 903(10) defines the term “preauthorized electronic fund transfer” as “an [EFT] authorized in advance to recur at substantially regular intervals.”
Regulation Z section 1026.12(d)(3) permits a card issuer, who obtains written authorization from the cardholder, to deduct periodically a cardholder's credit card debt from a deposit account held with the card issuer. Therefore, under the current rules, if a financial instution were to provide a consumer with overdraft credit accessible by a credit card, the financial institution could, with the consumer's written authorization, make automatic periodic deductions from the consumer's deposit account. Because periodic deductions by a creditor to obtain repayment of an overdraft credit balance occur at regular intervals, they are a form of preauthorized EFT and would be subject to the Regulation E compulsory-use prohibition, absent the extant exception for an overdraft credit plan provided by current
In adopting the exception from the compulsory-use prohibition in 1981, the Board used its EFTA exception authority to exclude “overdraft credit plans” (
Because under the proposal the exception would no longer apply to covered overdraft credit provided by a very large financial institution, the institution would be required to offer a consumer at least one method of repaying an overdraft credit balance other than automatic repayment by preauthorized EFT. For example, in addition to the automatic repayment option, the institution could offer consumers an option to repay their outstanding overdraft credit balances by expressly authorizing (
Under the CFPB's proposal, this requirement to offer additional repayment methods would apply to any existing covered overdraft credit offered by a very large financial institution, including products that often are referred to as Regulation Z overdraft lines of credit. In other words, where such an institution today provides a consumer with an overdraft line of credit subject to Regulation Z, the institution, upon the compliance date of the CFPB's proposal (if finalized), would need to begin to offer the consumer a way for the consumer to repay the consumer's overdraft credit balances other than by preauthorized EFT. While the institution would be required to offer a repayment option other than automatic repayment, the institution (as today) may offer a reduced APR or other cost-related incentive for the consumer to choose the option of automatic repayment.
Congress enacted the compulsory-use prohibition to prevent financial institutions and other persons that are creditors from mandating repayment of credit by preauthorized EFTs, such as automatic periodic deductions from consumers' accounts. In turn, in adopting an exception to that prohibition for overdraft in the early 1980s, the Board stated its belief that overdraft credit plans were popular with those consumers who had them and that those plans almost universally involved an automatic payment feature.
Covered overdraft credit plans are currently relatively rare.
For these reasons, the CFPB has preliminarily determined that applying the compulsory-use prohibition to covered overdraft credit provided by a very large financial institution will carry out the purposes of EFTA by safeguarding consumers' rights in electronic fund transfer systems. This preliminary determination to apply the compulsory-use prohibition is consistent with Congress's original intent. Congress passed a broad compulsory-use prohibition, which the Board then narrowed due to concerns about costs, and which the CFPB is now proposing to restore in light of changed market circumstances (
As noted, the Regulation E compulsory-use prohibition prohibits conditioning
The CFPB is not proposing to revisit this longstanding interpretation. That is, under the CFPB's proposal, it will remain the case that non-covered overdraft credit that obtains repayment through offset, such as the typical overdraft service as defined in § 1005.17(a), is not subject to the compulsory-use prohibition. Therefore, a very large institution providing non-covered overdraft at or below breakeven pricing may continue to take repayment of a consumer's overdraft balance immediately upon the institution's receipt of the next deposit to the consumer's account, just as institutions typically do today, if done in compliance with applicable law.
Under the CFPB's proposal, however, overdraft credit, including an overdraft service as that term is defined in Regulation E, that is provided by a very large financial institution, would
While the CFPB is not proposing to amend the Regulation Z prohibition against offset, it is closely related to the Regulation E compulsory-use prohibition discussed above; thus, the CFPB briefly discusses it here for clarity.
“Offset” is a term used to describe a practice whereby a depository institution uses funds from an incoming deposit to a consumer's asset account at the institution to immediately obtain repayment of the consumer's debt to the institution, such as an overdraft.
Offset is prohibited by TILA section 169(a) (15 U.S.C. 1666h(a)) and 12 CFR 1026.12(d)(1). The statutory and regulatory offset prohibition applies to a “card issuer,”
The CFPB is not proposing to amend the offset prohibition in Regulation Z. Thus, when a very large financial institution provides a covered overdraft credit account that is accessible by a card (
Further, per comment 12(d)(1)-3, the offset prohibition applies to any indebtedness arising from transactions under a credit card plan (such as a covered overdraft credit account accessible by a hybrid debit-credit card), including accrued finance charges and other charges on the account. The prohibition also applies to balances arising from transactions not using the card itself but taking place under plans that involve a credit card. For example, if the consumer writes a check that accesses an overdraft line of credit (which is a type of covered overdraft credit account), the resulting indebtedness is subject to the offset prohibition since it is incurred through a credit card plan.
Periodic deductions are a different practice than offset. TILA section 169(a)(1) (15 U.S.C. 1666h(a)(1)) permits a card issuer to periodically deduct all or part of a consumer's credit card debt from the consumer's asset account if the periodic deductions are in accordance with the consumer's preauthorized written agreement. This TILA provision is implemented in 12 CFR 1026.12(d)(3).
The CFPB is not proposing to amend 12 CFR 1026.12(d)(3). Thus, when a very large financial institution provides covered overdraft credit that is accessible by a card, the institution (as a card issuer) must comply with the offset prohibition (§ 1026.12(d)(1), discussed above), but may obtain a consumer's preauthorized written agreement to periodic deductions of the consumer's overdraft balances from the consumer's asset balances held at the institution. These deductions must be “periodic” to be permitted under
As discussed above, the CFPB is proposing to apply the Regulation E compulsory-use prohibition to covered overdraft credit provided by a very large financial institution. Further, the CFPB is not proposing to amend the Regulation Z prohibition against offset, nor is the CFPB proposing to amend the Regulation Z provision permitting periodic deductions. Therefore, when such an institution provides covered overdraft credit that is accessible by a card, the institution must comply with the Regulation E compulsory-use prohibition and the Regulation Z offset prohibition, and may obtain the consumer's voluntary agreement to repayment by periodic deduction from the consumer's asset account at the institution.
Pursuant to the Regulation Z offset prohibition, the institution may not adopt a practice of immediately taking funds from any incoming deposit in repayment of the consumer's overdraft balance. Pursuant to the Regulation Z provision permitting periodic deductions, the institution may obtain the consumer's written agreement to the institution's obtaining repayment of the consumer's overdraft balance through automatic periodic deductions from the consumer's covered asset account. However, pursuant to the Regulation E compulsory-use prohibition, the institution must provide the consumer with a repayment option
In its 2016 Prepaid Final Rule, the CFPB defined “periodically” in § 1026.12(d)(3) for purposes of a credit feature accessible by a hybrid prepaid-credit card to mean no more frequently than once per calendar month. The CFPB stated that it was concerned that some issuers of hybrid prepaid-credit cards would attempt to circumvent the offset prohibition in § 1026.12(d)(1) by obtaining a consumer's written authorization to deduct all or part of the cardholder's credit card debt on a daily or weekly basis from the prepaid account to help ensure that the debt is repaid.
The CFPB believes that similar issues are also present in the context of covered overdraft credit accounts tied to covered asset accounts. In particular, the CFPB believes that institutions providing such accounts might attempt to circumvent the offset prohibition by obtaining a consumer's written authorization to deduct all or part of the consumer's debt on a daily or weekly basis to help ensure that the debt is repaid. Further, the CFPB believes that consumers using these accounts, such as frequent overdrafters, would generally be more vulnerable than other consumers and that, in light of their vulnerability, these consumers might grant such authorization more readily than other consumers, because they believe that the authorization is required to obtain the accounts. At the same time, the CFPB acknowledges that it is possible that a periodic deduction period shorter than one month might be appropriate in some circumstances. Specifically, it is possible that some consumers might have difficulty managing repayment of credit balances and that these consumers might benefit from periodic deductions that occur more frequently than once per month.
The CFPB requests comment on whether in its final rule it should define “periodically” to mean no more frequently than once per calendar month or some other interval for covered overdraft credit accounts tied to covered asset accounts.
Section 1005.17(a) currently defines “overdraft service” to mean a service under which a financial institution assesses a fee or charge on a consumer's account held by the institution for paying a transaction (including a check or other item) when the consumer has insufficient or unavailable funds in the account. Section 1005.17(a)(1) also provides that the term “overdraft service” does not include any payment of overdrafts pursuant to a line of credit subject to Regulation Z, including transfers from a credit card account, home equity line of credit, or overdraft line of credit. The CFPB is proposing to add comment 17(a)-2 to clarify that the newly defined terms under this proposal do not change the scope of the definition of overdraft services under § 1005.17(a). Specifically, the proposed comment would clarify that covered overdraft credit, which includes above breakeven overdraft credit, is not an overdraft service under § 1005.17(a) because it is a line of credit subject to Regulation Z. When consumers at very large financial institutions are offered covered overdraft credit, that covered overdraft credit would not be subject to the Regulation E opt-in requirement for non-covered debit card overdraft.
Consistent with TILA section 105(d), the CFPB proposes that a final rule relating to this proposal would have an effective date of the October 1 which follows by at least six months the date it is published in the
As discussed above, the CFPB's proposed rule would, if finalized, apply only to very large financial institutions. Accordingly, financial institutions that are not very large institutions would not need to make any changes in response to the proposed rule were it to be finalized.
With respect to very large financial institutions, the changes that the proposed rule would require, if finalized, would vary depending on the very large financial institution's activities. If a very large financial institution currently offered non-covered overdraft services in compliance with existing regulations and, in response to the rule, it chose to provide those services at or below its breakeven price, it could continue to provide such services without making any operational changes in response to the rule apart from developing a process to confirm that its pricing for such services complied with either the rule's benchmark fee or breakeven standard provisions.
If a very large financial institution currently offered non-covered overdraft services in compliance with existing regulations and, in response to the rule, chose to provide above-breakeven overdraft credit, it would need to ensure that such credit complied with Regulation Z. However, if the very large financial institution were unable to bring a Regulation Z compliant above-breakeven overdraft credit program to market before the effective date of a final rule, the institution still could comply with the rule by delaying, for as long as it wishes, the point in time at which it began to offer above-breakeven overdraft credit to consumers. Finally, if a very large financial institution currently offered covered overdraft credit in compliance with Regulation Z and, in response to the rule, chose to continue offering such credit, the very large financial institution would need to comply with the rule by: (1) treating transfer fees as finance charges, or eliminating those fees, (2) offering consumers a means of repaying their overdrafts other than by preauthorized EFTs, and (3) beginning to comply with the regulatory provisions in Regulation Z that apply to credit cards that would newly apply to certain types of covered overdraft credit.
The CFPB believes that the proposed effective date should be sufficient for a very large financial institution to make these changes.
The CFPB preliminarily intends that, if any provision of the proposed rule, if adopted as final, or any application of a provision, is stayed or determined to be invalid, the remaining provisions or applications are severable and shall continue in effect.
In developing this proposed rule, the CFPB has considered the proposed rule's potential benefits, costs, and impacts per section 1022(b)(2)(A) of the Consumer Financial Protection Act of 2010 (CFPA). The CFPB requests comment on the preliminary analysis presented below and submissions of more data that could inform the CFPB's analysis of the potential benefits, costs, and impacts. In developing the proposed rule, the CFPB has consulted or offered to consult with the appropriate prudential regulators and other Federal agencies, including about the consistency of this proposed rule with any prudential, market, or systemic objectives administered by those agencies, in accordance with section 1022(b)(2)(B) of the CFPA. The CFPB also consulted with agencies described in TILA section 149.
The goal of this proposed rule is to allow more consumers to better compare certain overdraft credit to other types of credit and to provide consumers with several substantive protections that already apply to other consumer credit, while still encouraging the availability of overdraft coverage. The section proceeds as follows. First, it describes data limitations and the quantification of benefits, costs, and impacts. Second, it presents the baseline for its analysis. Third, it goes through the potential benefits and costs, first to consumers and then to covered persons, of the proposed changes that affect charges for non-covered and covered overdraft. Fourth, the section turns to the benefits, costs, and impacts of further provisions of the proposed rule. Fifth and sixth, it summarizes specific impacts on financial institutions with $10 billion in assets or less and on consumers in rural areas, respectively.
The discussion below relies on information that the CFPB has obtained from industry, other regulatory agencies, and publicly available sources, including reports published by the CFPB. These sources form the basis for the CFPB's consideration of the likely impacts of the proposed rule. The CFPB provides estimates, to the extent possible, of the potential benefits and costs to consumers and covered persons of this proposal given available data.
Specifically, this discussion is based on the CFPB's analysis of public Call Reports and other publicly available data sources, internal data from multiple supervisory information requests, as described in part II above, as well as research reports published by the CFPB. The CFPB also consulted the academic literature and policy analyses of United Kingdom and State regulators.
The CFPB acknowledges several important limitations that prevent a full determination of benefits, costs, and impacts. Quantifying the benefits, costs, and impacts requires quantifying consumer and depository institution responses to the proposed changes, and the CFPB finds the body of knowledge on relevant behavioral responses and elasticities incomplete. In particular, the CFPB is not aware of evidence that could be used to predict how changes to overdraft pricing would affect negative balance periods or the expected substitution effects across asset accounts and between deposit accounts with overdraft coverage and other forms of credit, including the consumer harm from delaying or forgoing some transactions. Similarly, the CFPB believes there is little reliable quantitative evidence available on the cost and effectiveness of steps financial institutions might take to facilitate clients' money management or timely repayment on overdrawn accounts; reprice any of their services; remunerate their staff, suppliers, or sources of capital differently; or enter or exit any or all segments of the checking account market. Thus, while the data and research available to the CFPB provide an important basis for understanding the likely effects of the proposal, the data and research are insufficient to fully quantify the potential effects of the proposal for consumers and very large financial institutions. This reflects, in part, the fact that the effects of the proposal would depend on choices made by independent actors in response to the proposal, and the data and research available to the CFPB do not
In light of these data limitations, the analysis below provides quantitative estimates where possible and a qualitative discussion of the proposed rule's benefits, costs, and impacts. General economic principles and the CFPB's expertise, together with the available data, provide insight into these benefits, costs, and impacts. The CFPB requests additional data or studies that could help quantify the benefits and costs to consumers and covered persons of the proposed rule.
To evaluate the proposal's benefits, costs, and impacts, the CFPB measures the proposal's benefits, costs, and impacts against a baseline in which the CFPB would take no action. This baseline assumes existing regulations remain in place and that market conditions in the overdraft market do not change from their current state.
The discussion below assumes that, without action, both the overdraft credit market and the broader consumer checking market would function in the manner understood through past CFPB research, external academic literature, and supervisory activity. The CFPB bases its prediction for the baseline on market conditions and market data from the 2022 calendar year. As a result, its baseline reflects changes to the overdraft market through 2022, including changes to checking account pricing (both fee and net interest revenue) and changes to the speed, cost, availability, and prevalence of payment systems. The CFPB sees that the market is changing rapidly and might continue to do so absent the rule, but for purposes of the baseline the CFPB generally uses data from the most recent full calendar year to characterize the status quo.
In addition to other changes discussed later in this section and to the further changes discussed in the following section, the proposal would apply Regulation Z to above breakeven overdraft credit that is currently excepted from the regulation (
Under the proposal, overdraft credit offered by very large financial institutions that currently is non-covered overdraft credit could remain non-covered overdraft credit if the per-transaction price for such credit were less than or equal to the benchmark fee established by the CFPB. Consequently, if all very large financial institutions were to use the benchmark fee to comply with the rule, the proposal's direct benefits to consumers, assuming no change in overdraft frequency, could be as high as the difference between the total fees currently paid by consumers for non-covered overdraft credit and the total fees they would pay if non-covered overdraft credit were priced at the benchmark fee.
Today, fees for non-covered overdraft credit are generally greater than $30 per transaction.
From information requests by the CFPB, it estimates the average overdraft fee amount to be $32.50.
Savings from lower fees would be particularly valuable in cases when they protect liquidity at times when the consumer needs it most. Consumers with low balances may deplete their asset account less frequently if they have paid less in overdraft fees in the past, and thus their asset account recovered to a higher balance after a sufficiently large deposit. Moreover, if fees, in particular multiple or cascading fees, deplete less of the buffer the depository institution is willing to lend to the consumer (
A large reduction in fees for non-covered overdraft could reduce some operating costs associated with complaints, collections, and account closures. Such benefits to covered persons do not need to reflect an equal but opposite pecuniary cost to consumers. Fewer complaints, collections, or account closures can save money for both the accountholder and the depository institution, who somehow split the value that would have been spent otherwise. These gains would mitigate some losses covered persons suffer from lower fee revenue, so they lose less on net, in total. The CFPB understands from its general monitoring activities that complaints fell by 70 percent or more at depository institutions that radically decreased overdraft fees recently. With lower fees and charges, the CFPB expects more non-covered or covered overdraft credit accounts to recover from negative balance episodes.
Very large financial institutions with per-incident costs and losses traceable to overdrawing transactions above the benchmark fee would have an incentive to set fees for non-covered overdraft using the breakeven standard described at proposed § 1026.62(d)(1)(i). Consumer gains when very large financial institutions with per-incident costs and losses above the benchmark fee use the breakeven standard would be less as their fee would not drop all the way to the benchmark fee. The gains for consumers would be even smaller if the application of the breakeven standard imposes additional administrative costs on the institutions who use it, and, in turn, those institutions shift some of these costs to their customers. However, the CFPB expects these administrative costs to be small compared to revenue.
Data produced in response to the CFPB's supervisory information requests on 2022 overdraft practices suggest that, for benchmark fee levels less than $14, at least some very large financial institutions would have traceable costs and losses per overdraft fee charged greater than the benchmark fee level, such that they could find it more advantageous to use the breakeven standard. The CFPB has less data on the costs and losses of other very large financial institutions, whose costs and losses (mostly their charge-off losses) may be higher than for some institutions in its supervisory information request collection. However, because the costs and losses of providing non-covered overdraft are driven largely by credit losses, and because these losses depend on underwriting policies, which, as discussed below, very large financial institutions likely would change in response to the proposed rule, current cost and loss levels may not be a reliable indicator of future cost and loss levels assuming the proposed rule were finalized.
Overdraft fees are incurred by consumers in an estimated 17 percent of households annually.
Overdraft use, and therefore the potential benefit from reduced fees, is also correlated with other consumer characteristics. As lower-income accountholders pay more fees, and minorities pay more fees even after controlling for income, these groups are more likely to benefit from the proposed changes.
Consumer gains would likely differ from the mechanical effect of lower fees on non-covered overdraft as described in the section above if some depository institutions would tailor their offering to the new environment as the proposed rule allows. The discussion in this subsection starts with the possibility that institutions might adjust underwriting standards or overdraft coverage limits for non-covered overdraft credit when the marginal profit on each non-covered overdraft transaction falls. Then the text turns to the decision of whether to waive the fees on some overdraft transactions. Next is the analysis of decisions about whether to instead extend products that substitute for non-covered overdraft, primarily covered overdraft credit but also transfers from linked asset accounts. Finally, the subsection discusses repricing of financial products, like maintenance fees on the underlying checking account.
Assuming that very large financial institutions comply with the proposal by lowering their fees for non-covered overdraft credit, these lower fees may change very large financial institutions' decisions about whether to extend non-covered overdraft credit for a given transaction on a given account. Financial institutions generally have discretion in setting overdraft policies.
In principle, very large financial institutions could respond to the
The CFPB is aware of an empirical study finding that relaxing restrictions to overdraft fees may result in increased access to deposit accounts with overdraft coverage.
The authors find that the analyzed change to fee caps seems to have led to higher overdraft fees at national banks in these States, expanded overdraft coverage at these banks, and more low-income households opening deposit accounts. In the setting studied, about 56 percent of consumers in the lowest income quartile did not have checking accounts before the regulatory change, and the authors estimate that this share fell by about five percentage points after the change. The findings are consistent with the regulatory change making it more profitable, in those States affected, for national banks to provide accounts to consumers who maintain low balances. The authors do not find evidence that the newly banked consumers regretted (or at least reverted) their choice or that they suffered worse financial health.
As with most modern empirical research in economics, the study focuses attention on the internal validity of the findings,
Even assuming the internal validity of the findings, several differences in both the economic context and the nature of the regulatory change make it unlikely that the study's findings would apply directly if the proposed rule were finalized. The authors report that for the households in their data from 2001, 34 percent of households did not have a checking account,
A prominent precedent for a U.S. policy change affecting overdraft fee revenue was the implementation of the opt-in rule of Regulation E in August 2010. The CFPB is not aware of a careful empirical study that isolates the effect of this change in the market. That said, there was a substantial decrease in marketwide overdraft revenue following the introduction of the opt-in rule and a smaller decrease in total service charges, which suggests less than fully offsetting price responses.
According to the CFPB's market monitoring, recent voluntary decreases in overdraft revenue at many large American depository institutions have not coincided with conspicuous restrictions of checking offerings or increases in other fees, though this period corresponded to increases in net interest revenue on deposits resulting from a changing interest rate environment.
In some cases, in response to the proposed rule, the above referenced more conservative underwriting may lead lenders to reject transactions they
Overdraft use can also decrease due to financial institution responses that cause no consumer harm. With smaller profits on each transaction, very large financial institutions could have more of an incentive to educate their depositors and help them avoid negative balance episodes.
Currently, a substantial fraction of overdraft fees is waived by financial institutions, either because regulation does not allow fees on transactions that are payed per contractual obligations (such as debit APSN transactions without opt-in), pursuant to an automatic policy like a daily maximum, or at the discretion of a customer service representative or manager, often called a discretionary waiver or a reversal after the fact. Lower fee amounts would change institutions' incentives related to whether to waive the fee by policy or discretion, which is a subset of overall waivers. For this decision, the depository institution trades off the net revenue from charging the fee against the expected value of a marginally better relationship with the customer. Lower fee amounts would affect both parts of this tradeoff. Lower potential fee revenue would mean that depository institutions would have less to lose by waiving a fee, while they also imply that there is less at stake for the consumer, likely making fee waivers less important to maintaining good customer relationships.
As discussed in part V(D)(2)(v), the $3 benchmark fee, in particular, would not have covered charge-off losses for the institution with the lowest credit losses in the CFPB's data for 2022 had they applied their current waiver policy so that they charged $3 only in instances where they actually charged their current higher fee in 2022. This suggests that institutions that currently waive or reverse fees might reconsider their policies if a benchmark fee did not allow them to recoup their costs and losses on their non-covered overdraft credit product, if product-specific profit targets were more important in practice than the marginal incentives for individual waivers. Were an institution to adopt the breakeven standard, it would charge higher fees but could waive the fee on fewer or more instances than in the baseline without any impact on its profit. Institutions adopting the breakeven standard would have an incentive to tailor their waiver policies to foster customer goodwill and retention according to the accountholder's lifetime value to the institution.
A decrease in the chance of a waiver would shift the consumer experience from higher overdraft fees (as much as $35) that might be waived discretionarily, to lower overdraft fees (as low as $3) that are more predictable. On net, the CFPB expects that shift to lower costs and create more predictability for consumers. In addition, the discretionary nature of some fee waivers can lead to the potential for disparate treatment of customers, as some customers may be more likely to get an overdraft fee waived than others. This disparate treatment would amount to what has been called “contractual inequality.”
Financial institutions may choose to offer covered overdraft credit in addition to or instead of non-covered overdraft credit. Whether consumers would choose to apply for and use covered overdraft products, and whether very large financial institutions would find it profitable to offer them, depends on a number of factors, and available evidence does not permit the CFPB to confidently predict whether or how such products would develop. In particular, it would depend on the price that the market will bear for these products in new segments, as well as the cost and time required to develop reliable underwriting and consumer acquisition systems to support such products.
Lines of credit on any such new covered overdraft product might be smaller than on existing covered overdraft lines of credit, which generally focus on premium market segments.
If underwriting these covered overdraft credit lines on the new accounts would require extensions of existing systems or new installations at many institutions, transitioning a new customer base to covered overdraft credit would take time and experimentation, even at institutions with experience underwriting credit cards or extant overdraft lines of credit. The frequent overdrafter population might be profitable to underwrite with small lines, but few financial institutions would have experience underwriting such small lines of credit for this population (either for a credit card or extant overdraft lines of credit). The effective date proposed would leave time for very large financial institutions to experiment before implementation, which could facilitate development of new covered overdraft credit offerings.
If frictions slowed the transition of consumers from non-covered to covered overdraft credit, fewer consumers would receive the new coverage at institutions that try to move some of their overdraft customers into a covered product.
Past experience offers little guidance on the extent to which very large
The disclosure provisions of Regulation Z might result in more competitive pressure on the pricing of covered overdraft credit products than currently exists for non-covered overdraft credit. An increase in competitive pressure could mean that new covered overdraft products would be less expensive than existing non-covered overdraft products for the same consumers and coverage.
Consumers would also stand to gain from the availability of covered overdraft credit because meeting periodic minimum payments, which are generally lower than the full balance, would allow them to revolve their overdraft debt and cover more extended needs for liquidity. They could also pay less in per-transaction fees if their asset account, not depleted by full repayment of prior overdrafts, would cover more transactions while the credit account carries a balance. Periodic repayment saves consumers some per-transaction finance charges at the cost of somewhat higher periodic charges resulting from a credit balance remaining outstanding for longer. Furthermore, consumers who cannot repay the overdrawn amount within 60 days, when non-covered overdraft credit balances are typically charged off, might benefit from revolving their covered overdraft credit balance for a longer period of time.
Consumers who go delinquent on new covered overdraft credit accounts would have their credit negatively impacted if the delinquency is reported to consumer reporting agencies, though not necessarily with more dire consequences than with a negative report to checking account reporting companies after involuntary account closure due to a negative balance on the original asset account that would have resulted from similar behavior with non-covered overdraft credit in the absence of the proposed rule.
When consumers at very large financial institutions are offered covered overdraft credit, that covered overdraft credit would not be subject to the Regulation E opt-in requirement for non-covered debit card overdraft. However, it would be subject to Regulation Z's application and solicitation requirements and limitations on the issuance of credit cards if it can be accessed by a hybrid debit-credit card. Consumers would not separately consent, the same way as Regulation E currently requires, to overdraft charges on one-time debit card and ATM transactions. A very large financial institution would be permitted, instead, to simply give the consumer the choice to apply for covered overdraft credit that would be extended to cover any overdrawing transaction (whether it be check, ACH, debit card, ATM, or any other form). Once the account is established, the CFPB expects those covered overdraft accounts to be presented to consumers as a credit account on phone applications, accounts on websites, and periodic statements, which would call attention to the fact that covered overdraft credit is a credit product.
Consumers who choose to have covered overdraft credit that is accessible by a hybrid debit-credit card might be better off than those who are opted into non-covered overdraft credit on one-time debit card and ATM transactions today if the same amount of credit for the same transactions costs less, as discussed above, or because of the other protections included in this proposed rule. Where a financial institution only offers covered overdraft credit bundled for all transaction types, consumers who are not opted in today would gain the right to, effectively, refrain from opting into overdraft on transactions other than one-time debit and ATMs. They would lose, however, the ability to refrain from opting into overdraft for one-time debit and ATMs while intentionally keeping overdraft for other transactions. It is unclear how many consumers would prefer the default of Regulation E, particularly given evidence that consumer understanding of the Reg E opt-in right is low.
If very large financial institutions chose to offer closed-end covered overdraft credit, such closed-end covered overdraft credit would not be subject to the substantive protections discussed above. Instead, it would be subject to the disclosure requirements that apply to closed-end credit. The CFPB believes it is unlikely that this product would be provided.
With non-covered overdraft credit less profitable for financial institutions and available to fewer consumers, both institutions and consumers would have greater incentive to take advantage of linked accounts. Institutions might offer and promote more of these opportunities. Transfer fees on linked asset accounts to cover overdrawing checking account debits can result in costs for consumers but protect them from unnecessary borrowing if they indeed have liquid assets elsewhere. Links to existing credit lines like credit cards would not have this benefit but give more control to consumers to shop for rates and decide on repayment, with potentially still lower transfer fees than fees on non-covered overdraft credit under the proposal. Transfer fees for transfers from both savings accounts and credit accounts have been less common among the largest banks in recent years than they were prior.
As discussed above, the proposed rule would lead to reductions in non-covered overdraft revenue at many financial institutions, and it is uncertain whether that revenue would be replaced, potentially by revenue from covered overdraft or other substitute products. Overdraft provider responses to this lost revenue would affect both the sum of consumer gains and their distribution across market segments and populations. Total consumer gains will be lower if very large financial institutions make up for lost overdraft fee revenue and any potential increase in costs by raising revenue by increasing other checking account prices or decreasing rates paid on deposit accounts. Whether financial institutions would offset lost overdraft fee revenue in this way for some or all deposit accounts would depend on a number of factors, including overall profitability of deposit accounts and the nature of competition among financial institutions.
To give an upper bound on how much lost revenue might be offset on a per-account basis, the CFPB estimates the mechanically lost revenue per account from non-covered overdraft fees without any behavioral responses. While full offset of the revenue loss is not a likely scenario, calculating this upper bound provides some quantitative context for understanding the limits of potential lost revenue and corresponding changes that might result. The CFPB does not have current information on the number of active checking accounts at all very large financial institutions but requested such information for 2022 from eight very large financial institutions in a supervisory capacity. For these institutions, the overall average overdraft fee revenue from any active account-month was $3.77. Of course, the proposed rule would not eliminate all overdraft fee revenue. Were the CFPB to finalize with a $3 benchmark (and again, assuming for analytical purposes full adoption of the benchmark), financial institutions would lose approximately 90.8 percent in weighted average fee revenue (from $32.50 average fees to the $3 benchmark proposal), totalling a revenue loss of $3.42 per account per month. An 81.5 percent drop in average fee revenue (assuming a $6 benchmark) would be result in $3 of lost revenue per account per month. For a $7 benchmark, that figure is $2.96. For the $14 benchmark, that figure is $2.15.
The magnitude of these extreme upper bounds on lost revenue per account reassures the CFPB that any potential losses to banking access can remain limited. In fact, there are large financial institutions for which this proposed rule is unlikely to result in substantial reductions in revenue.
Offsetting changes in prices, if any, would limit the benefits consumers gain from the proposal (as well as the corresponding costs to covered persons), but also redistribute the burden of paying for consumer checking services in the United States. Those consumers who are currently frequent users of high-cost non-covered overdraft credit would benefit substantially from lower fees even if checking account APY or maintenance fees adjust, as those adjustments are unlikely to be similarly concentrated. Consumers who currently receive cross-subsidies from frequent (or just occasional) overdrafters, but might now receive lower net interest or pay higher maintenance fees to their checking provider, would incur only modest losses under the proposal relative to the baseline.
Under the baseline scenario for this analysis, very large financial institutions generally do not charge nonsufficient fund fees for transactions that consumers attempt to authorize in close to real time, which could include non-recurring debit card transactions or certain person-to-person transactions. Consumers with less access to overdraft credit due to this proposal would not pay fees on these types of transactions that they attempted but that were not authorized. However, the CFPB recognizes that financial institutions under the baseline could start to charge such fees in the future if they are not subject to the penalty fees limitation in § 1026.52(b). Other types of transactions can and might continue to trigger NSF fees when declined, although, as noted earlier, the significant majority of supervised entities subject to the proposal eliminated such fees during 2022 and early 2023.
A lower price for non-covered overdraft credit would lead some consumers to use the product more on the margin, assuming it remains available to them. For those who are attentive to the price of the product, who are also likely to use the product deliberately and experience liquidity and convenience benefits outweighing the cost, any additional utilization would likely provide net benefits. Inattentive consumers, for whom overdraft has already often been a mistake, would continue to be unlikely to pay attention to and rationally consider the lower cost of overdrawing their balance, and would thus be unlikely to use overdraft more even at a lower price.
Some consumers might keep a lower deposit balance as long as their overdraft protection seems sufficient but is now cheaper. As consumers with checking account balances forgo a net interest margin of 250 basis points
Some consumers may also choose different depository institutions, as account terms change as a result of the proposed rule. The ability to do so will generally increase consumer benefits and reduce consumer costs. For example, consumers who frequently overdraft at banks that are not very large financial institutions could switch to an account at a very large financial institution if non-covered overdraft credit is available there at lower cost. Conversely, a consumer at a very large financial institution that loses access to non-covered overdraft credit as a result of the rule could switch their account to another institution that is not covered by the proposed rule.
To the extent that marginal consumers could expect to pay a predictable and lower amount for checking overall, the proposal would encourage unbanked or underbanked customers to return to the banking system and gain access to FDIC insurance and the low cost payments system banks provide.
Overdraft use might also change because very large financial institutions would need to better disclose newly covered overdraft credit to consumers, which can only help them. For consumers who would use overdraft more because of this, their increased use may suggest that they would be deliberately taking advantage of a product worth its price for them. For consumers who would use overdraft less after these changes, better information might correct prior misunderstandings and prevent further mistakes.
Better disclosure would also help consumers compare the costs of different forms of credit (or other options to delay or forgo transactions), which provides direct benefits to those who are able to make more informed choices, and also provides indirect benefits to other potential users as more intensive comparison shopping would bring down prices among competitors.
Consumers currently not opting into one-time debit card transaction coverage by their non-covered overdraft service under Regulation E may be more likely to opt into such coverage under lower prices. To the extent these consumers pay particular attention to the fee and how it might affect them, they are less likely to regret when they use non-covered overdraft credit than others and are thus more likely to benefit from the proposed rule.
The proposal would only apply to very large financial institutions, and if finalized, would not lead to any new compliance costs for financial institutions not covered by the proposal.
The CFPB recognizes that a bank or credit union's demand for deposits (including demand and time deposits) derives from a multitude of factors, including, but not limited to, meeting expected loan demand and liquidity needs. In addition, when consumers select a deposit product, they rely on many factors unrelated to the overdraft pricing, including ATM and branch availability, interest rate, and expected customer service.
As the proposal outlines, many large financial institutions have already substantially reduced overdraft fees. During this time, there was no major shift in the total share of deposits from small financial institutions to very large financial institutions.
The CFPB acknowledges that is difficult to predict with certainty as to how very large financial institutions would evolve their business models over time. Of course, as with any change in business strategies by market participants with substantial market shares, this may ultimately lead to evolving industry dynamics with uncertain benefits and costs.
This proposed rulemaking would affect the consumer business of certain depository institutions with more than $10 billion in assets. At the end of calendar year 2022, used for some tabulations here, this list included 176 depository institutions.
For covered persons, costs and benefits mostly mirror the existence and extent of each respective pecuniary benefit or cost to their customers, as detailed above, net of offsetting changes. By the very nature of this relationship, the CFPB has considered the various causes, mediating channels and modulating responses affecting costs and benefits to covered persons as carefully as for consumers, and much of the discussion of the factors and mechanisms affecting potential consumer pecuniary benefits and costs in the previous section also applies to the potential costs and benefits, respectively, of the proposed rule for covered persons.
In particular, the proposed rule would reduce the revenue of very large financial institutions from non-covered overdraft credit, and these institutions may be able to offset this lost revenue in various ways, including expanding their offerings of covered overdraft or other services that substitute for non-covered overdraft credit. The extent to which depository institutions will be able to pass the price changes of checking accounts under the proposed rule onto input prices depends on the pricing pressures on capital, labor, and intermediary goods, and services that very large financial institutions pay for. Due to their complexity, the CFPB has not modeled them in detail.
The operating cost of offering covered overdraft may be higher than the cost of providing similar non-covered overdraft credit. This arises from the costs of complying with Regulations Z and E, and potentially other laws. The covered persons might bear these costs if market forces do not let them pass some of them on to the consumer.
Very large financial institutions already have to provide disclosures per Regulations DD and E for non-covered overdraft credit. If they chose to continue offering non-covered overdraft credit, they would need to update these systems to make sure they accurately disclose and charge the new lower fees. If they decided to offer covered overdraft credit instead to any customer, then the disclosures would follow Regulation Z. The one-time cost of setting up a new covered overdraft program or transitioning consumers to existing covered overdraft programs could be substantial. The compulsory use prohibition would impose an administrative burden on the institution to offer another form of payment to the covered overdraft credit customer, as well as the operating cost of collecting the payment.
As discussed in the previous section, mechanical application of the benchmark fee amount to existing non-covered overdraft could reduce revenue of very large financial institutions by $3.5 billion to $5.6 billion, depending on the benchmark fee amount. This revenue impact on covered persons is limited by the proposal's design, which allows depository institutions to collect their costs and losses in overdraft fees. Part V.C.3.ii details why the CFPB believes that the benchmark fee number would allow some very large financial institutions to cover their costs and losses. Where the benchmark fee number would not allow this, fees set based on the breakeven standard would allow institutions to recover their costs and losses over time. This mechanism ensures that even entities that would see less revenue due to this proposal need not take losses on overdraft credit, unless they charge lower fees than the
The CFPB finds it plausible that a different revenue model for checking in the U.S. that may result from the proposed rule will have broader implications on counterparties, competitors, or new entrants, or elsewhere in the economy. Such considerations would be too speculative for this impact analysis.
The CFPB is also proposing to apply the Regulation E compulsory-use prohibition to covered overdraft credit provided by a very large financial institution. The CFPB is not proposing to amend the Regulation Z prohibition against offset, nor is the CFPB proposing to amend the Regulation Z provision permitting periodic deductions. The proposal's approach to these provisions would affect the costs and benefits for consumers and covered persons of consumers potentially switching from non-covered overdraft to covered overdraft. Consumers who have access to covered overdraft credit but consciously avoid pre-authorized EFTs to repay covered overdraft credit are likely to benefit from the compulsory use prohibition, which would give them additional control over their finances, though they might be overoptimistic about their future repayment discipline, and mistakenly turn down automatic payments, to their detriment. Consumers who forget to repay can incur additional costs, including late fees, default interest rates or negative credit reporting after a period of delinquency. Some consumers might not be able to switch to covered overdraft credit if their depository institution was on the margin of offering it and they deem the consumer too prone to delinquency without a pre-authorized EFT for repayment. It is less likely that existing users of covered overdraft credit would be impacted for the same reason, as they are typically premium customers not on the margin of profitability.
Covered persons should not incur substantial cost from establishing repayment options in addition to a preauthorized EFTs. They can feasibly establish processes for consumers to have the repayment option of authorizing individual EFTs. Covered overdraft credit accounts that are not accessible via a hybrid debit-credit card would not be subject to the no-offset provision of Regulation Z.
Consumers with covered overdraft who do not repay their balance with frequent preauthorized EFTs pay either more interest from debt held longer or the hassle cost of making unscheduled repayments more often.
On covered overdraft credit accounts accessible via a debit card (a hybrid debit-credit card), financial institutions cannot automatically offset the credit balance against a positive balance on the associated asset account after a deposit. Therefore, consumers would be able to pay new debit transactions from the asset account before they repay the credit account. As discussed above, this flexibility in when to repay debt will generally give consumers better opportunities to manage their finances, although in practice the extent of any benefit to consumers from being able to delay repayment depends on finance charges for the credit and whether delaying repayment out of the asset account allows them to avoid higher additional credit charges for new transactions.
Consumers making purchases by using hybrid debit-credit cards that access covered overdraft credit would also benefit from the proposed rule's effect on dispute resolution for such purchases. The CFPB expects the burden on covered persons from this occasional service to be minimal.
The CFPB is also proposing to require very large financial institutions that provide covered overdraft credit to do so through a credit account that is separate from the associated asset account. These provisions would clarify that a very large financial institution must treat existing deposit accounts with overdraft credit that is currently non-covered overdraft credit, but that the institution chooses to provide as above breakeven covered overdraft credit subsequent to the rule, as a new credit account for purposes of Regulation Z. Consumers with hybrid debit-credit cards able to access a covered overdraft credit account, and the very large financial institutions that provide these accounts, would then be subject to the CARD Act protections in subpart G of Regulation Z.
Section 1026.51 would require card issuers to consider consumers' ability to make the required minimum periodic payments under the terms of the account. This could generally reduce the amount of credit available to some consumers, and some consumers may benefit from this requirement if it makes it less likely that they are burdened with covered overdraft debt for which they are unlikely to be able to make required minimum periodic payments. Because the safe harbor requires lenders to estimate whether consumers can repay the minimum payment and all fees assuming full use of the credit line, this could result in firms setting more concrete and less fluid credit limits, could result in lower credit limits, and firms might institute minimum payment formulas that do not require full payment of overdrafted amounts every month.
Section 1026.52(a) would limit fees charged in the first year a covered overdraft credit account is open to 25 percent of the account's credit limit. (Section 1026.52(a) does not restrict charges attributable to periodic interest rates; see comment 1026.52(a)(2)-1.) This could benefit consumers with hybrid debit-credit cards able to access a covered overdraft credit account in the first year the account is open. Any reduction in fees paid by consumers as a result of 1026.52(a) would result in a corresponding cost to covered persons from decreased fee revenue. Developing and implementing pricing strategies for covered overdraft products that comply with these requirements could impose costs on the covered persons providing these products, though the CFPB does not expect these costs to impose a substantial direct burden.
Penalty fees, like declined transaction fees, for violating the terms of the covered overdraft credit account would be subject to limitations under § 1026.52(b), providing further benefits to consumers who would have paid such fees. For example, § 1026.52(b) would restrict NSF fees from being charged on ACH transactions on accounts that have covered overdraft credit that is accessible by a hybrid debit-credit card. Consumers that would have been charged penalty fees, including NSF fees on debit card or ACH transactions, would benefit by not being charged these fees. Similarly, financial institutions that would have received NSF fee revenue from these transactions would see a decrease in revenue. Yet, the CFPB understands that NSF fees are currently rarely charged on debit card transactions and, as discussed above, most of the largest banks have already eliminated all NSF fees. This suggests that the benefits to consumers and costs to covered persons from this restriction are likely to be limited.
Very large financial institutions would be required to provide credit account opening disclosures and comply with other requirements of credit account opening in connection with tying covered overdraft credit to deposit accounts that already exist.
Under the proposed rule, above breakeven overdraft credit would no longer qualify as “incidental credit” under § 1002.3 and thus would be newly subject to certain requirements under Regulation B, including with respect to providing notice and record-keeping. These obligations would have costs to covered persons.
The proposed changes, including proposed changes to the definition of finance charge, may affect other legal requirements under various Federal and State laws, including the Military Lending Act, usury limits, capital requirements, and interchange fees. The CFPB acknowledges that some or all of these legal requirements might also affect charges for non-covered and covered overdraft credit indirectly. However, the CFPB has not attempted to quantify the effects of such changes because it is not responsible for interpreting those laws and regulations and therefore cannot provide the detailed predictions about their effects that would be required for quantification; moreover, the CFPB does not predict the extent to which very large financial institutions will choose to offer covered overdraft credit that is subject to those rules. The CFPB seeks comment on the extent to which these considerations should affect its analysis.
As this proposed rule applies only to financial institutions with more than $10 billion in total assets, the CFPB expects no specific impact on small entities directly. Subsection VIII.D.1.iv above discusses how the CFPB understands the proposed rule's indirect impact on these entities.
As discussed above, the proposed rule would likely lead to an increase in overdraft credit regulated by TILA and Regulation Z, and for remaining non-covered overdraft credit, a decrease in the fee.
To the extent that consumers in rural areas bank with institutions other than very large financial institutions, the impact of the proposed rule on these areas will be limited.
The CFPB has limited insight into overdraft practices in rural areas specifically. It is not aware of reasons to suggest more adverse or particular impacts in rural areas.
The CFPB has tabulated the share of the unbanked in lowest fifth of the income distribution in ZIP codes that the Census classified as urban, rural, or with a fraction rural.
The CFPB has also tabulated the average credit score in each ZIP code, in the latest year available in a public dataset released by researchers at the Federal Reserve Board.
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities (SISNOSE). The CFPB is also subject to specific additional procedures under the RFA involving convening a panel to consult with small business representatives before proposing a rule for which an IRFA is required. An IRFA is not required for this proposal because the proposal, if adopted, would not have a SISNOSE.
Small institutions, for the purposes of the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, are defined by the Small Business Administration. Effective March 17, 2023, financial institutions with less than $850 million in total assets are determined to be small.
As this proposed rule only applies to financial institutions with more than $10 billion in total assets, it affects no small entities.
Accordingly, the Director hereby certifies that this proposal, if adopted, would not have a significant economic impact on a substantial number of small entities. Thus, neither an IRFA nor a small business review panel is required for this proposal. The CFPB requests comment on the analysis above.
Under the Paperwork Reduction Act of 1995 (PRA), Federal agencies are generally required to seek the Office of Management and Budget's (OMB's) approval for information collection requirements prior to implementation.
Under the PRA, the CFPB may not conduct or sponsor and, notwithstanding any other provision of law, a person is not required to respond to an information collection unless the information collection displays a valid control number assigned by OMB.
The proposed rule amends 12 CFR 1005 (Regulation E), which implements the Electronic Funds Transfer Act, which is assigned OMB control number 3170-0014, which expires 5/31/2025, as well as 12 CFR 1026 (Regulation Z), which implements the Truth in Lending Act and is assigned OMB Control number 3170-0015, which expires 05/31/2025. However, this proposed rule may, in addition to the information collection requirements of Regulation Z, affect the information collection requirements contained in 12 CFR part 1002 (Regulation B), which implements ECOA, which is assigned OMB Control number 3170-0013 which expires 08/31/2026. A full description of those changes and the estimated burdens thereof can be found in the Supporting Statements for each affected regulation that have been filed with OMB in connection with this proposed rule and are available as part of its public docket.
The CFPB has a continuing interest in the public's opinions regarding this determination. At any time, comments regarding this determination may be
Banks, Banking, Consumer protection, Credit unions, Electronic fund transfers, National banks, Reporting and recordkeeping requirements, Savings associations.
Advertising, Banks, Banking, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth-in-lending.
For the reasons set forth in the preamble, the CFPB proposes to amend Regulation E, 12 CFR part 1005, and Regulation Z, 12 CFR part 1026, as set forth below:
12 U.S.C. 5512, 5581; 15 U.S.C. 1693b. Subpart B is also issued under 12 U.S.C. 5601 and 15 U.S.C. 1693o-1.
(e)
The revisions read as follows:
1.
2.
i. Section 1005.10(e)(1) provides an exception from the general rule for an overdraft credit plan other than for a covered separate credit feature accessible by a hybrid prepaid-credit card as defined in Regulation Z, 12 CFR 1026.61 and for covered overdraft credit extended by very large financial institutions as those terms are defined in Regulation Z, 12 CFR 1026.62. A financial institution may therefore require the automatic repayment of an overdraft credit plan, other than a covered separate credit feature accessible by a hybrid prepaid-credit card or covered overdraft credit extended by very large financial institutions, even if the overdraft extension is charged to an open-end account that may be accessed by the consumer in ways other than by overdrafts.
ii. Credit extended through a negative balance on the asset feature of a prepaid account that meets the conditions of Regulation Z, 12 CFR 1026.61(a)(4), is considered credit extended pursuant to an overdraft credit plan for purposes of § 1005.10(e)(1). Thus, the exception for overdraft credit plans in § 1005.10(e)(1) applies to this credit.
3.
i. Under § 1005.10(e)(1), creditors may not require by electronic means on a preauthorized, recurring basis repayment of credit extended under a covered separate credit feature accessible by a hybrid prepaid-credit card as defined in Regulation Z, 12 CFR 1026.61. The prohibition in § 1005.10(e)(1) applies to any credit extended under such a credit feature, including preauthorized checks. See Regulation Z, 12 CFR 1026.61, and comment 61(a)(1)-3.
ii. Under Regulation Z, 12 CFR 1026.12(d)(1), a card issuer may not take any action, either before or after termination of credit card privileges, to offset a cardholder's indebtedness arising from a consumer credit transaction under the relevant credit card plan against funds of the cardholder held on deposit with the card issuer. Under Regulation Z, 12 CFR 1026.12(d)(3), with respect to covered separate credit features accessible by hybrid prepaid-credit cards as defined in 12 CFR 1026.61, a card issuer generally is not prohibited from periodically deducting all or part of the cardholder's credit card debt from a deposit account (such as a prepaid account) held with the card issuer under a plan that is authorized in writing by the cardholder, so long as the card issuer does not make such deductions to the plan more frequently than once per calendar month. A card issuer is prohibited under Regulation Z, 12 CFR 1026.12(d), from automatically deducting all or part of the cardholder's credit card debt under a covered separate credit feature from a deposit account (such as a prepaid account) held with the card issuer on a daily or weekly basis, or whenever deposits are made to the deposit account. Section 1005.10(e)(1) further restricts the card issuer from requiring payment from a deposit account (such as a prepaid account) of credit card balances of a covered separate credit feature accessible by a hybrid prepaid-credit card by electronic means on a preauthorized, recurring basis.
4.
i. Mortgages with graduated payments in which a pledged savings account is automatically debited during an initial period to supplement the monthly payments made by the borrower.
ii. Mortgage plans calling for preauthorized biweekly payments that are debited electronically to the consumer's account and produce a lower total finance charge.
1.
2.
12 U.S.C. 2601, 2603-2605, 2607, 2609, 2617, 3353, 5511, 5512, 5532, 5581; 15 U.S.C. 1601
(a) * * *
(15)(i)
(ii)
(A) A home-equity plan subject to the requirements of § 1026.40 that is accessed by a credit card; or
(B) A covered overdraft credit account as defined in § 1026.62 offered by a creditor other than a very large financial institution as defined in § 1026.62 that is accessed by a debit card or account number.
(iii)
(iv)
(b) * * *
(2) Service, transaction, activity, and carrying charges, including any charge imposed on a checking or other transaction account (except a prepaid account as defined in § 1026.61 or a covered asset account as that term is defined in § 1026.62) to the extent that the charge exceeds the charge for a similar account without a credit feature.
(12) With regard to a covered asset account as that term is defined in § 1026.62(b)(2):
(i) Any service, transaction, activity, or carrying charge imposed on the separate credit account required by § 1026.62(c); and
(ii) Any service, transaction, activity, or carrying charge imposed on the covered asset account to the extent that the charge exceeds a comparable charge imposed on a checking or other transaction account that does not have overdraft credit.
(iii) For purposes of paragraph (b)(12)(ii) of this section, the following charges imposed on a checking or other transaction account without covered overdraft credit are not comparable to charges imposed on a covered asset account. Thus, to determine pursuant to paragraph (b)(12)(ii) of this section the amount of a charge on a covered asset account that is a finance charge, the following fees and charges on a checking or other transaction account that does not have covered overdraft credit may not be subtracted from the amount of the charge on the covered asset account.
(A) A charge for authorizing or paying a transaction that overdraws the checking or other transaction account.
(B) A charge for declining to authorize or pay a transaction.
(C) A charge for returning a transaction unpaid.
(D) A charge for transferring funds into the checking or other transaction account from any credit account.
(E) A charge for transferring funds into the checking or other transaction account from any other asset account.
(c) * * *
(3) Charges imposed by a financial institution for paying items that overdraw an account, unless the payment of such items and the imposition of the charge were previously agreed upon in writing. This paragraph (c)(3) does not apply to credit offered in connection with a prepaid account as defined in § 1026.61. This paragraph (c)(3) also does not apply to above breakeven overdraft credit as defined in § 1026.62.
(a) * * *
(5)
(i) Home-equity plans accessible by a credit or charge card that are subject to the requirements of § 1026.40;
(ii) Covered overdraft credit as defined in § 1026.62 tied to asset accounts accessed by check-guarantee cards or by debit cards other than hybrid debit-credit cards as defined in § 1026.62;
(iii) Lines of credit accessed by check-guarantee cards or by debit cards, other than covered overdraft credit accessed by hybrid debit-credit cards, that can be used only at automated teller machines;
(iv) Lines of credit accessed solely by account numbers except for a covered separate credit feature solely accessible by an account number that is a hybrid prepaid-credit card as defined in § 1026.61 or covered overdraft credit accessible by an account number that is a hybrid debit-credit card;
(v) Additions of a credit or charge card to an existing open-end plan;
(vi) General purpose applications unless the application, or material accompanying it, indicates that it can be used to open a credit or charge card account; or
(vii) Consumer-initiated requests for applications.
(a)
(2)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(c)
(d)
(i) The pro rata share of the very large financial institution's total direct costs and charge-off losses for providing non-covered overdraft credit in the previous year, calculated in accordance with this paragraph; or
(ii) [$3/$6/$7/$14].
(2)
The revisions and addition read as follows:
1.
i. Layaway plans, unless the consumer is contractually obligated to continue making payments. Whether the consumer is so obligated is a matter to be determined under applicable law. The fact that the consumer is not entitled to a refund of any amounts paid towards the cash price of the merchandise does not bring layaways within the definition of credit.
ii. Tax liens, tax assessments, court judgments, and court approvals of reaffirmation of debts in bankruptcy. However, third-party financing of such obligations (for example, a bank loan obtained to pay off a tax lien) is credit for purposes of the regulation.
iii. Insurance premium plans that involve payment in installments with each installment representing the payment for insurance coverage for a certain future period of time, unless the consumer is contractually obligated to continue making payments.
iv. Home improvement transactions that involve progress payments, if the consumer pays, as the work progresses, only for work completed and has no contractual obligation to continue making payments.
v. Borrowing against the accrued cash value of an insurance policy or a pension account, if there is no independent obligation to repay.
vi. Letters of credit.
vii. The execution of option contracts. However, there may be an extension of credit when the option is exercised, if there is an agreement at that time to defer payment of a debt.
viii. Investment plans in which the party extending capital to the consumer risks the loss of the capital advanced. This includes, for example, an arrangement with a home purchaser in which the investor pays a portion of the downpayment and of the periodic mortgage payments in return for an ownership interest in the property, and shares in any gain or loss of property value.
ix. Mortgage assistance plans administered by a government agency in which a portion of the consumer's monthly payment amount is paid by the agency. No finance charge is imposed on the subsidy amount, and that amount is due in a lump-sum payment on a set date or upon the occurrence of certain events. (If payment is not made when due, a new note imposing a finance charge may be written, which may then be subject to the regulation.)
2.
3.
4.
1.
2.
i. Examples of credit cards include:
A. A card that guarantees checks or similar instruments, if the asset account is also tied to covered overdraft credit or if the instrument directly accesses a line of credit.
B. A debit card (other than a debit card that is solely an account number) that also accesses a credit account (that is, a debit-credit card or hybrid debit-credit card as defined in § 1026.62). See comment 2(a)(15)-2.ii.C for guidance on whether a debit card that is solely an account number is a credit card.
C. An identification card that permits the consumer to defer payment on a purchase.
D. An identification card indicating loan approval that is presented to a merchant or to a lender, whether or not the consumer signs a separate promissory note for each credit extension.
E. A card or device that can be activated upon receipt to access credit, even if the card has a substantive use other than credit, such as a purchase-price discount card. Such a card or device is a credit card notwithstanding the fact that the recipient must first contact the card issuer to access or activate the credit feature.
F. A prepaid card that is a hybrid prepaid-credit card as defined in § 1026.61.
ii. In contrast, credit card does not include, for example:
A. A check-guarantee or debit card with no credit feature or agreement.
B. Any card, key, plate, or other device that is used in order to obtain petroleum products for business purposes from a wholesale distribution facility or to gain access to that facility, and that is required to be used without regard to payment terms.
C. An account number that accesses a credit account, unless the account number can access an open-end line of credit to purchase goods or services or as provided in § 1026.61 with respect to a hybrid prepaid-credit card. An account number that can access an open-end line of credit to purchase goods or services includes an account number that can access a covered overdraft credit account offered by a very large financial institution. For example, if a creditor provides a consumer with an open-end line of credit that can be accessed by an account number in order to transfer funds into another account (such as an asset account with the same creditor), the account number is not a credit card for purposes of § 1026.2(a)(15)(i). However, if the account number can also access the line of credit to purchase goods or services (such as an account number that can be used to purchase goods or services on the internet), the account number is a credit card for purposes of § 1026.2(a)(15)(i), regardless of whether the creditor treats such transactions as purchases, cash advances, or some other type of transaction. Furthermore, if the line of credit can also be accessed by a card (such as a debit card), that card is a credit card for purposes of § 1026.2(a)(15)(i).
D. A prepaid card that is not a hybrid prepaid-credit card as defined in § 1026.61.
E. A check-guarantee or debit card that can access non-covered overdraft credit as defined in § 1026.62 and cannot access any other form of credit.
3.
i. Charge cards are credit cards where no periodic rate is used to compute the finance charge. The term
A. Under the regulation, a reference to credit cards generally includes charge cards. In particular, references to credit
B. The term
ii. A hybrid prepaid-credit card as defined in § 1026.61 is a charge card with respect to a covered separate credit feature if no periodic rate is used to compute the finance charge in connection with the covered separate credit feature. Unlike other charge card accounts, the requirements in § 1026.7(b)(11) apply to a covered separate credit feature accessible by a hybrid prepaid-credit card that is a charge card when that covered separate credit feature is a credit card account under an open-end (not home-secured) consumer credit plan. Thus, under § 1026.5(b)(2)(ii)(A), with respect to a covered separate credit feature that is a credit card account under an open-end (not home-secured) consumer credit plan, a card issuer of a hybrid prepaid-credit card that meets the definition of a charge card because no periodic rate is used to compute a finance charge in connection with the covered separate credit feature must adopt reasonable procedures for the covered separate credit feature designed to ensure that
(1) periodic statements are mailed or delivered at least 21 days prior to the payment due date disclosed on the statement pursuant to § 1026.7(b)(11)(i)(A); and
(2) the card issuer does not treat as late for any purposes a required minimum periodic payment received by the card issuer within 21 days after mailing or delivery of the periodic statement disclosing the due date for that payment.
4.
i. An open-end consumer credit account is a credit card account under an open-end (not home-secured) consumer credit plan for purposes of § 1026.2(a)(15)(ii) if:
A. The account is accessed by a credit card, as defined in § 1026.2(a)(15)(i); and
B. The account is not excluded under § 1026.2(a)(15)(ii)(A) or (B).
ii. The exclusion from credit card account under an open-end (not home-secured) consumer credit plan provided by § 1026.2(a)(15)(ii)(B) for covered overdraft credit offered by a creditor that is not a very large financial institution does not apply to a covered separate credit feature accessible by a hybrid prepaid-credit card (including a hybrid prepaid-credit card that is solely an account number) as defined in § 1026.61.
1.
2.
i. The definition requires that there be a plan, which connotes a contractual arrangement between the creditor and the consumer.
ii. With respect to a covered separate credit feature accessible by a hybrid prepaid-credit card as defined in § 1026.61, a plan means a program where the consumer is obligated contractually to repay any credit extended by the creditor. For example, a plan includes a program under which a creditor routinely extends credit from a covered separate credit feature offered by the prepaid account issuer, its affiliate, or its business partner where the prepaid card can be used from time to time to draw, transfer, or authorize the draw or transfer of credit from the covered separate credit feature in the course of authorizing, settling, or otherwise completing transactions conducted with the card to obtain goods or services, obtain cash, or conduct person-to-person transfers, and the consumer is obligated contractually to repay those credit transactions. Such a program constitutes a plan notwithstanding that, for example, the creditor has not agreed in writing to extend credit for those transactions, the creditor retains discretion not to extend credit for those transactions, or the creditor does not extend credit for those transactions once the consumer has exceeded a certain amount of credit. See § 1026.61(a) and related commentary for guidance on the applicability of this regulation to credit accessible by hybrid prepaid-credit cards.
iii. Some creditors offer programs containing a number of different credit features. The consumer has a single account with the institution that can be accessed repeatedly via a number of sub-accounts established for the different program features and rate structures. Some features of the program might be used repeatedly (for example, an overdraft line) while others might be used infrequently (such as the part of the credit line available for secured credit). If the program as a whole is subject to prescribed terms and otherwise meets the definition of open-end credit, such a program would be considered a single, multifeatured plan.
iv. With respect to covered overdraft credit as defined in § 1026.62, a plan means a program where the consumer is obligated contractually to repay any credit extended by the creditor. Such a program constitutes a plan notwithstanding that, for example, the creditor has not agreed in writing to extend credit for those transactions, the creditor retains discretion not to extend credit for those transactions, or the creditor does not extend credit for those transactions once the consumer has exceeded a certain amount of credit.
3.
4.
i. The requirement that a finance charge may be computed and imposed from time to time on the outstanding balance means that there is no specific amount financed for the plan for which the finance charge, total of payments, and payment schedule can be calculated. A plan may meet the definition of open-end credit even though a finance charge is not normally imposed, provided the creditor has the right, under the plan, to impose a finance charge from time to time on the outstanding balance. For example, in some plans, a finance charge is not imposed if the consumer pays all or a specified portion of the outstanding balance within a given time period. Such a plan could meet the finance charge criterion, if the creditor has the right to impose a finance charge, even though the consumer actually pays no finance charges during the existence of the plan because the consumer takes advantage of the option to pay the balance (either in full or in installments) within the time necessary to avoid finance charges.
ii. With regard to a covered separate credit feature and an asset feature on a prepaid account that are both accessible by a hybrid prepaid-credit card as defined in § 1026.61, any service, transaction, activity, or carrying charges imposed on the covered separate credit feature, and any such charges imposed on the asset feature of the prepaid account to the extent that the amount of the charge exceeds comparable charges imposed on prepaid accounts in the same prepaid account program that do not have a covered separate credit feature accessible by a hybrid prepaid-credit card, generally is a finance charge.
iii. Regardless of whether the financial institution assesses such charges on the deposit account itself or a separate credit account, any service, transaction, activity, or carrying charges imposed by a financial institution for paying a transaction that overdraws a consumer's deposit account held at the financial institution are finance charges unless they are excluded from the definition of finance charge by § 1026.4(c).
5.
i. Under a closed-end commitment, the creditor might agree to lend a total of $10,000 in a series of advances as needed by the consumer. When a consumer has borrowed the full $10,000, no more is advanced under that particular agreement, even if there has been repayment of a portion of the debt. (
ii. This criterion does not mean that the creditor must establish a specific credit limit for the line of credit or that the line of credit must always be replenished to its original amount. The creditor may reduce a credit limit or refuse to extend new credit in a particular case due to changes in the creditor's financial condition or the consumer's creditworthiness. (The rules in § 1026.40(f), however, limit the ability of a creditor to suspend credit advances for home equity plans.) While consumers should have a reasonable expectation of obtaining credit as long as they remain current and within any preset credit limits, further extensions of credit need not be an absolute right in order for the plan to meet the self-replenishing criterion.
6.
7.
1.
i. A $5 service charge is imposed on an account with an overdraft line of credit (where the institution has agreed in writing to pay an overdraft), while a $3 service charge is imposed on an account without a credit feature; the $2 difference is a finance charge. (If the
ii. A $5 service charge is imposed for each item that results in an overdraft on an account with an overdraft line of credit, while a $25 service charge is imposed for paying or returning each item on a similar account without a credit feature; the $5 charge is not a finance charge.
2.
1.
2.
3.
1.
2.
1.
2.
i. Granting overdraft privileges on a checking account when the consumer already has a check guarantee card; or
ii. Allowing a prepaid card to access a covered separate credit feature that would make the card into a hybrid prepaid-credit card as defined in § 1026.61 with respect to the covered separate credit feature.
iii. Extending covered overdraft credit through a hybrid debit-credit card as defined in § 1026.62.
3.
i. The name of the card requested may be different when issued.
ii. The card may have features in addition to those reflected in the request or application.
4.
5.
6.
i. The additional cards may be imprinted in either A's name or in the names of B and C.
ii. No liability for unauthorized use (by persons other than B and C), not even the $50, may be imposed on B or C since they are merely users and not cardholders as that term is defined in § 1026.2 and used in § 1026.12(b); of course, liability of up to $50 for unauthorized use of B's and C's cards may be imposed on A.
iii. Whether B and C may be held liable for their own use, or on the account generally, is a matter of state or other applicable law.
7.
i.
A. Under § 1026.12(a)(1), a credit card cannot be issued except in response to a request or an application. (See comment 2(a)(15)-2 for examples of cards or devices that are and are not credit cards.) A non-credit card other than a prepaid card may be sent on an unsolicited basis by an issuer that does not propose to connect the card to any credit plan; a credit feature may be added to a previously issued non-credit card other than a prepaid card only upon the consumer's specific request.
B.
ii.
8.
1.
2.
i. Changed its name.
ii. Changed the name of the card.
iii. Changed the credit or other features available on the account. For example, the original card could be used to make purchases and obtain cash advances at teller windows. The substitute card might be usable, in addition, for obtaining cash advances through automated teller machines. (If the substitute card constitutes an access device, as defined in Regulation E, then the Regulation E issuance rules would have to be followed.) The substitution of one card with another on an unsolicited basis is not permissible, however, where in conjunction with the substitution an additional credit card account is opened and the consumer is able to make new purchases or advances under both the original and the new account with the new card. For example, if a retail card issuer replaces its credit card with a combined retailer/bank card, each of the creditors maintains a separate account, and both accounts can be accessed for new transactions by use of the new credit card, the card cannot be provided to a consumer without solicitation.
iv. Substituted a card user's name on the substitute card for the cardholder's name appearing on the original card.
v. Changed the merchant base, provided that the new card is honored by at least one of the persons that honored the original card. However, unless the change in the merchant base is the addition of an affiliate of the existing merchant base, the substitution of a new card for another on an unsolicited basis is not permissible where the account is inactive. A credit card cannot be issued in these circumstances without a request or application. For purposes of § 1026.12(a), an account is inactive if no credit has been extended and if the account has no outstanding balance for the prior 24 months. (See § 1026.11(b)(2).)
3.
4.
5.
6.
i. Replacing a single card that is both a debit card and a credit card, such as a hybrid debit-credit card as defined in § 1026.62, with a credit card and a separate debit card with only debit functions (or debit functions plus an associated capability to extend overdraft credit that is not covered overdraft credit as defined in § 1026.62), since the latter card could be issued on an unsolicited basis under Regulation E.
ii. Replacing a single card that is both a prepaid card and a credit card with a credit card and a separate prepaid card where the latter card is not a hybrid prepaid-credit card as defined in § 1026.61.
iii. Replacing an accepted card with more than one renewal or substitute card, provided that:
A. No replacement card accesses any account not accessed by the accepted card;
B. For terms and conditions required to be disclosed under § 1026.6, all replacement cards are issued subject to the same terms and conditions, except that a creditor may vary terms for which no change in terms notice is required under § 1026.9(c); and
C. Under the account's terms the consumer's total liability for unauthorized use with respect to the account does not increase.
7.
i. The issuer includes with the new card a notification that the existing card is no longer valid and should be destroyed immediately.
ii. The original card contained an expiration date.
iii. The card issuer, in order to preclude use of the card, reprograms computers or issues instructions to authorization centers.
8.
9.
1.
2.
3.
4.
i. For examples of how to comply with §§ 1026.12 and 1026.53 for credit card accounts under an open-end (not home-secured) consumer credit plan, see comment 53-3.
ii. For other types of credit card accounts, creditors may, at their option, apply payments consistent with § 1026.53 and comment 53-3. In the alternative, payments and other credits may be applied to: Late charges in the order of entry to the account; then to finance charges in the order of entry to the account; and then to any debits other than the transaction subject to the claim or defense in the order of entry to the account. In these circumstances, if more than one item is included in a single extension of credit, credits are to be distributed pro rata according to prices and applicable taxes.
5.
i. Section 1026.12(c) applies to property or services purchased with the hybrid prepaid-credit card that accesses a covered separate credit feature as defined in § 1026.61. The following examples illustrate when a hybrid prepaid-credit card is used to purchase property or services:
A. A consumer uses a hybrid prepaid-credit card as defined in § 1026.61 to make a purchase to obtain goods or services from a merchant and credit is drawn directly from a covered separate credit feature accessed by the hybrid prepaid-credit card without transferring funds into the asset feature of the prepaid account to cover the amount of the purchase. For example, assume that the consumer has $10 of funds in the asset feature of the prepaid account and initiates a transaction with a merchant to obtain goods or services with the hybrid prepaid-credit card for $25. In this case, $10 is debited from the asset feature and $15 of credit is drawn directly from the covered separate credit feature accessed by the hybrid prepaid-credit card without any transfer of funds into the asset feature of the prepaid account to cover the amount of the purchase. In this case, the consumer is using credit accessed by the hybrid prepaid-credit card to purchase property or services where credit is drawn directly from the covered separate credit feature accessed by the hybrid prepaid-credit card to cover the amount of the purchase.
B. A consumer uses a hybrid prepaid-credit card as defined in § 1026.61 to make a purchase to obtain goods or services from a merchant and credit is transferred from a covered separate credit feature accessed by the hybrid prepaid-credit card into the asset feature of the prepaid account to cover the amount of the purchase. For example, assume the same facts as above, except that the $15 will be transferred from a covered separate credit feature to the asset feature, and a transaction of $25 is debited from the asset feature of the prepaid account. In this case, the consumer is using credit accessed by the hybrid prepaid-credit card to purchase property or services because credit is transferred to the asset feature of the prepaid account to cover the amount of a purchase made with the card. This is true even though the $15 credit transaction is treated as “nonsale credit” under § 1026.8(b).
ii. For a transaction at point of sale where a hybrid prepaid-credit card is used to obtain goods or services from a merchant and the transaction is partially paid with funds from the asset feature of the prepaid account, and partially paid with credit from the covered separate credit feature, the amount of the purchase transaction that is funded by credit generally would be subject to the requirements of § 1026.12(c). The amount of the transaction funded from the prepaid account would not be subject to the requirements of § 1026.12(c).
1.
i. Use of a credit card to obtain a cash advance, even if the consumer then uses the money to purchase goods or services. Such a transaction would not involve “property or services purchased with the credit card.”
ii. The purchase of goods or services by use of a check accessing an overdraft account and a credit card used solely for identification of the consumer. (On the other hand, if the credit card is used to make partial payment for the purchase and not merely for identification, the right to assert claims or defenses would apply to credit extended via the credit card, although not to credit extended by the overdraft line. If partial payment for the purchase is made with a hybrid prepaid-credit card or a hybrid debit-
iii. Purchases made by use of a check guarantee card in conjunction with a cash advance check (or by cash advance checks alone). (
iv. Purchases effected by use of either a check guarantee card or a debit card (other than a hybrid debit-credit card) when used to draw on overdraft credit plans. (
1.
i.
A.
B.
ii.
iii.
A.
B.
2.
3.
4.
5.
1.
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is temporarily modifying the operating schedule that governs the Loop Parkway Bridge across Long Creek, mile 0.7, Nassau County, NY. The bridge owner, New York State Department of Transportation (NYSDOT), submitted a request to operate the bridge under single leaf openings to perform bridge deck replacement.
This temporary final rule is effective March 25, 2024, until May 16, 2024.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary final rule, call or email Ms. Stephanie E. Lopez, First Coast Guard District, Project Officer, telephone 571-608-5676, email
On September 19, 2023, the Coast Guard issued a general deviation to NYSDOT, allowed the bridge owner, NYSDOT, to deviate from the current operating schedule in 33 CFR 117.799(f) for the Loop Parkway Bridge. This deviation allowed the bridge to operate under single leaf operations from September 20, 2023, to March 17, 2024, in order to perform bridge deck replacement.
Since the actual scope of the work would take longer than the allowable time limit of the General Deviation, the Coast Guard published a notice of proposed rulemaking on October 3, 2023, entitled “Drawbridge Operation Regulation; Long Creek, Nassau County, NY,” in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 499. The Loop Parkway Bridge will continue to operate under its regular operating schedule found in 33 CFR 117.799(f). However, this rule will allow the bridge to operate under single leaf openings from March 25, 2024, until May 16, 2024. For vessels that are too large for single leaf openings NYSDOT has identified an alternate route. Vessels that can pass without requesting a bridge opening may do so. NYSDOT has reached phase 2 of the project which requires replacing the bridge deck. This rule will allow the project to progress while minimizing impact on mariners.
The Coast Guard published an NPRM on October 3, 2023, providing a comment period of 30 days and no comments were received.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, it has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the ability that vessels can still transit the bridge through the single leaf openings and vessels that are too large to make passage through single leaf openings have alternate routes which they can make passage.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
The Coast Guard published an NPRM on October 3, 2023, providing a comment period of 30 days and no comments were received.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
The Coast Guard published an NPRM on October 3, 2023, providing a comment period of 30 days and no comments were received.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule promulgates the operating regulations or procedures for drawbridges and is categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.
Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.
Bridges.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; and DHS Delegation No. 00170.1, Revision No. 01.3.
The addition reads as follows:
(j) The draw of the Loop Parkway Bridge across Long Creek, mile 0.7, shall operate on single leaf openings from March 25, 2024, to May 16, 2024. The draw will open for commercial vessels engaged in commerce and shall open Monday thru Friday from 6:20 a.m. to 9:50 a.m. and 3:20 p.m. to 7:20 p.m. on signal at 20 and 50 minutes after the hour, and on signal at all other times. For all other vessels, the draw shall open on Monday through Friday from 6:20 a.m. to 7:20 p.m. on signal at 20 and 50 minutes after the hour, and the draw shall open on Saturday, Sunday, and Federal Holidays from 7:20 a.m. to 8:20 p.m. on signal at 20 and 50 minutes after the hour, and on signal at all other times.
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is temporarily modifying the operating schedule that governs the Meadowbrook State Parkway Bridge, mile 12.8, across Sloop Channel, Nassau County, NY. The bridge owner, New York State Department of Transportation (NYSDOT), submitted a request to operate the bridge under single leaf openings to perform bridge deck replacement.
This temporary final rule is effective March 25, 2024, until May 16, 2024.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary final rule, call or email Ms. Stephanie E. Lopez, First Coast Guard District, Project Officer, telephone 571-608-5676, email
On September 19, 2023, the Coast Guard issued a general deviation to NYSDOT allowing the bridge owner, NYSDOT, to deviate from the current operating schedule in 33 CFR 117.799(h) for the Meadowbrook State
Since the actual scope of the work would take longer than the allowable time limit of the General Deviation, the Coast Guard published a notice of proposed rulemaking on October 3, 2023, entitled “Drawbridge Operation Regulation; Sloop Channel, Nassau County, NY,” in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 499. The Meadowbrook State Parkway Bridge will continue to operate under its regular operating schedule found in 33 CFR 117.799(h). However, this rule will allow the bridge to operate under single leaf openings from March 25, 2024, until May 16, 2024. For vessels that are too large for single leaf openings NYSDOT has identified an alternate route. Vessels that can pass without requesting a bridge opening may do so. NYSDOT has reached phase 2 of the project which requires replacing the bridge deck. This rule will allow the project to progress while minimizing impact on mariners.
The Coast Guard published an NPRM on October 3, 2023, providing a comment period of 30 days and no comments were received. This temporary rule will allow for completion of the bridge rehabilitation.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, it has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the ability that vessels can still transit the bridge through the single leaf openings and vessels that are too large to make passage through single leaf openings have alternate routes which they can make passage.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
The Coast Guard published an NPRM on October 3, 2023, providing a comment period of 30 days and no comments were received.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
The Coast Guard published an NPRM on October 3, 2023, providing a comment period of 30 days and no comments were received.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or
Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.
Bridges.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; and DHS Delegation No. 00170.1, Revision No. 01.3.
The addition reads as follows:
(k) The draw of the Meadowbrook State Parkway Bridge across Sloop Channel, mile 12.8, shall operate on single leaf openings from March 25, 2024, to May 16, 2024. The draw will open for commercial vessels engaged in commerce and shall open Monday through Friday from 6:20 a.m. to 9:50 a.m. and 3:20 p.m. to 7:20 p.m. on signal at 20 and 50 minutes after the hour, and on signal at all other times. For all other vessels, the draw shall open on Monday thru Friday from 6:20 a.m. to 7:20 p.m. on signal at 20 and 50 minutes after the hour, and the draw shall open on Saturday, Sunday, and Federal Holidays from 7:20 a.m. to 8:20 p.m. on signal at 20 and 50 minutes after the hour, and on signal at all other times.
Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).
Final rule.
This final rule primarily addresses recent legislative changes to the Social Security Act as a result of the Consolidated Appropriations Act, 2021 changes to the hospital-specific limit on Medicaid disproportionate share hospital (DSH) payments. This final rule affords States and hospitals more clarity on how the limit, the changes that took effect on October 1, 2021, will be calculated. Additionally, this final rule enhances administrative efficiency by making technical changes and clarifications to the DSH program.
Lia Adams, (410) 786-8258, Charlie Arnold, (404) 562-7425, Richard Cuno, (410) 786-1111, Stuart Goldstein, (410) 786-0694, Charles Hines, (410) 786-0252, and Mark Wong, (415) 744-3561, for Medicaid Disproportionate Share Hospital Payments and Overpayments.
Jennifer Clark, (410) 786-2013, for Children's Health Insurance Program (CHIP).
Title XIX of the Social Security Act (the Act) established the Medicaid program as a Federal-State partnership for the purpose of providing and financing medical assistance to specified groups of eligible individuals. States have considerable flexibility in designing their programs but must abide by requirements specified in the Federal Medicaid statute and regulations. Each State is responsible for administering its Medicaid program in accordance with an approved State plan, which specifies the scope of covered services, groups of eligible individuals, payment methodologies, and all other information necessary to assure the State plan describes a comprehensive and sound structure for operating the Medicaid program, and ultimately, provides a clear basis for claiming Federal matching funds.
Section 1902(a)(13)(A)(iv) of the Act requires that States consider the situation of hospitals that serve a disproportionate share of low-income patients with special needs, in a manner consistent with section 1923 of Act, in determining payments. The purpose of the proposed rule
This final rule also revises regulatory payment and financing definitions and other regulatory language that could be subject to misinterpretation, refines administrative procedures used by States to comply with Federal regulations, and removes regulatory requirements that have been difficult to administer and do not further the program's objectives.
We are finalizing all provisions as proposed, although we note that the regulations have some minor phrasing changes for consistency with current style guidelines. For the CAA 2021-related provisions of this final rule, we are finalizing an applicability date of October 1, 2021, to align with the effective date in the statute. This information is noted in each of the CAA 2021-related provision sections and discussed in section III. of this final rule. The remaining provisions of this final rule are effective 60 days after publication of the final rule.
States are statutorily required to make DSH payments to qualifying hospitals that serve patients who are uninsured and enrolled in the Medicaid program, as described in section 1923(d) of the Act. States generally have flexibility regarding the specific hospitals to which they make payments and how they determine the amount of those payments, within certain parameters. Section 1902(a)(13)(A)(iv) of the Act requires that States consider the situation of hospitals that serve a disproportionate number of low-income patients with special needs, in a manner consistent with section 1923 of the Act. DSH payments are not considered part of base payments or supplemental payments to providers, as they are made under distinct statutory authority. Section 1923 of the Act contains specific requirements related to DSH payments, including aggregate annual State-specific DSH allotments that limit Federal financial participation (FFP) for Statewide total DSH payments under section 1923(f) of the Act, and hospital-specific limits on DSH payments under section 1923(g) of the Act. Under the statutory hospital-specific limits, a hospital's DSH payments may not exceed the costs incurred by that hospital in furnishing inpatient and outpatient hospital services during the year to certain Medicaid beneficiaries and the uninsured, less payments received under title XIX (other than section 1923 of the Act) and payments by uninsured patients. In addition, section 1923(a)(2)(D) of the Act requires States to provide an annual report to the Secretary describing the DSH payment adjustments made to each DSH.
Section 1001(d) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108-173, December 8, 2003) added section 1923(j) of the Act to require States to report additional information about their DSH programs. Section 1923(j)(1) of the Act requires States to submit an annual report including an identification of each hospital that received a DSH payment adjustment during the preceding fiscal year (FY) and the amount of such adjustment, and such other information as the Secretary determines necessary to ensure the appropriateness of the DSH payment
The CAA 2021 was enacted on December 27, 2020. It modified the Medicaid statute in several ways, including by updating section 1923 of the Act. Specifically, Division CC, Title II, section 203 of the CAA 2021 (herein referred to as section 203) amended section 1923(g) of the Act, which describes the methodology for calculating hospital-specific Medicaid DSH limits. This provision took effect October 1, 2021. For purposes of calculating the hospital-specific DSH limit, section 203 of the CAA 2021 modified the calculation of the Medicaid portion of the hospital-specific DSH limit to include only costs and payments for services furnished to beneficiaries for whom Medicaid is the primary payer for such services, as specified in section 1923(g)(1)(B)(i) of the Act. Accordingly, the limit excludes costs and payments for services provided to Medicaid beneficiaries with other sources of coverage, including Medicare and commercial insurance. Section 1923(g) of the Act, as modified by the CAA 2021, includes an exception to this methodology for hospitals in and above the 97th percentile of all hospitals with respect to inpatient days made up of patients who, for such days, were entitled to Medicare Part A benefits and to supplemental security income (SSI) benefits (97th percentile hospitals). This exception, as described in section 1923(g)(2)(B) of the Act, applies to hospitals that are in or above the 97th percentile, either with respect to the number of inpatient days or percentage of total inpatient days that were made up of such days. The exception provides qualifying hospitals with a hospital-specific limit that is the higher of that calculated under the methodology in which costs and payments for Medicaid patients are counted only for beneficiaries for whom Medicaid is the primary payer, or the methodology in effect on January 1, 2020. From June 2, 2017, to the passage of the CAA 2021, payments made by all third-party payers (TPP), such as Medicare, other insurers, and beneficiary cost sharing, would all be included in the calculation of hospital-specific DSH limits, in accordance with the “DSH Payments—Treatment of Third-Party Payers in Calculating Uncompensated Care Costs” final rule in the April 3, 2017,
We acknowledge there are data limitations, which we describe later in this rule, that have delayed CMS' ability to clarify which hospitals qualify for the exception for 97th percentile hospitals. We proposed how we would determine which hospitals qualify for this exception and are finalizing as proposed.
The “Medicaid Program; Disproportionate Share Hospital Payments” final rule published in the December 19, 2008,
Consequently, at times we are unable to determine whether a DSH overpayment to a provider has occurred, the root causes of any overpayments, and the amount of the overpayments associated with each cause. In current practice, an auditor may include a finding (or “caveat”) in the audit, stating that the missing information may impact the calculation of total eligible uncompensated care costs, rather than making a determination of the actual financial impact of the identified issue. This lack of transparency results in uncertainty even if costs are ultimately correct and restricts CMS' and States' ability to ensure proper recovery of all FFP associated with DSH overpayments identified through annual DSH audits in instances where errors did occur.
In the past, the Office of Inspector General (OIG) and the Government Accountability Office (GAO) have raised concerns similar to ours regarding oversight of the Medicaid DSH program. The 2008 DSH audit final rule addressed concerns raised by OIG
We agree with the report that more transparency is needed, but to obtain the necessary overpayment amounts under current reporting processes, CMS or the State would have to conduct a secondary review or audit, which would be burdensome and largely redundant. By requiring States to submit to CMS in the annual reports described in § 447.299(c) a dollar estimate of any Medicaid DSH provider overpayments, we ensure this calculation occurs with the primary audit and eliminates redundancy in reviewing documentation. As discussed further in section II. of this final rule, this is intended to further enhance our
Amounts in excess of the hospital-specific limit are regarded as overpayments to providers, under 42 CFR part 433, subpart F. Section 1903(d)(2)(C) of the Act provides that, when an overpayment by a State is discovered, the State has a 1-year period to recover or attempt to recover the overpayment before an adjustment is made to FFP to account for the overpayment. FFP is not available for DSH payments that are found in the independent certified audit to exceed the hospital-specific limit. Currently, regulations in § 433.316 provide for determining the date of discovery of an overpayment, which is necessary to determine the statutory 1-year period, but it does not specify how this relates to the independent certified DSH audits required under section 1923(j)(2) of the Act and 42 CFR part 455, subpart D.
Accordingly, the discovery of overpayments necessitates the return of the Federal share, or redistribution by the State of the overpaid amounts to other qualifying hospitals, in accordance with the State's approved Medicaid State plan. While the preamble to the 2008 DSH audit final rule generally addressed the return or redistribution of provider overpayments identified through DSH audits, it did not include specific procedural requirements for returning or redistributing overpayments. Therefore, we have identified this area as an opportunity to strengthen program oversight and integrity protections, specifically with respect to the overpayment and redistribution reporting process and requirements for identifying the financial impact of audit findings. In the proposed rule, we proposed requirements to enhance these areas, which we are now finalizing as proposed.
Section 2551 of the Affordable Care Act
Section 1923(f)(7) of the Act requires the Secretary to develop a methodology to determine the annual, State-by-State DSH allotment reduction amounts based on five factors: uninsured factor (UPF); Medicaid volume factor (HMF); uncompensated care factor (HUF); low DSH State factor (LDF); and the budget neutrality factor (BNF). The 2019 final rule assigned weights to the annual reduction amount for the three core factors: UPF, HMF, and HUF. The remaining two factors, the LDF and the BNF, affect the allocation of the reduction amounts within the three core factors. The LDF accomplishes this allocation at the front end of the calculations by shifting a portion of the reduction amount specified under section 1923(f)(7)(A)(ii) of the Act to non-low DSH States. Following this step, we determine the reduction calculations prescribed by the three core factors. We then perform additional reductions associated with the BNF within the HMF and HUF for States that divert DSH allotment amounts under section 1115 demonstrations. We then reallocate these reduction amounts away from States that do not divert DSH allotment amounts under section 1115 demonstrations, to comply with the aggregate reduction amounts specified under statute at section 1923(f)(7)(A)(ii) of the Act. The five factors are specified in section 1923(f)(7)(B) of the Act as follows:
• UPF—The statute requires that States with
• HMF—The statute requires that States that target DSH payments to hospitals with high Medicaid volume receive a
• HUF—As required by statute, States that target DSH payments to hospitals with high levels of uncompensated care receive a
• Low DSH State factor—Section 1923(f)(7)(B)(ii) of the Act requires that statutorily defined “low DSH States”
• BNF—DSH allotment amounts diverted for coverage expansion under section 1115 demonstrations approved as of July 31, 2009, receive a limited protection from reduction.
Section 447.297 provides a process and timeline for us to publish preliminary and final annual DSH allotments and national expenditure targets in the
Similarly, section 2104 of the Act provides appropriations for FY CHIP allotments for FYs 1998 through 2029. Regulations at 42 CFR 457.609 describe the process for calculating State CHIP
Section 1903(d)(2)(C) of the Act provides that, when an overpayment by a State is discovered, the State has a 1-year period to recover or attempt to recover the overpayment before an adjustment is made to FFP to account for the overpayment. Currently, regulations in § 433.316 provide for determining the date of discovery of an overpayment to a provider, which is necessary to determine the statutory 1-year period, in three distinct cases: (1) when the overpayment results from a situation other than fraud, under § 433.316(c); (2) when the overpayment results from fraud, under § 433.316(d); and (3) when the overpayment is identified through a Federal review, under § 433.316(e). It is not explicitly clear in the current regulations how the date of discovery is determined when an overpayment is discovered through the annual DSH independent certified audit required under § 455.304. Therefore, we believe a regulatory change is appropriate to specify the date of discovery of overpayments, as it relates to the annual DSH independent certified audit.
Accordingly, we proposed to redesignate paragraphs (f) through (h) of § 433.316 as paragraphs (g) through (i), respectively, and to add a new paragraph (f). In the new paragraph (f), we proposed that, in the case of an overpayment identified through the DSH independent certified audit required under part 455, subpart D, we would consider the overpayment as discovered on the earliest of either the date that the State submits the DSH independent certified audit report required under § 455.304(b) to CMS, or of any of the dates specified in § 433.316(c): paragraph (c)(1) (the date on which any Medicaid agency official or other State official first notifies a provider in writing of an overpayment and specifies a dollar amount that is subject to recovery); paragraph (c)(2) (the date on which a provider initially acknowledges a specific overpaid amount in writing to the Medicaid agency); and paragraph (c)(3) (the date on which any State official or fiscal agent of the State initiates a formal action to recoup a specific overpaid amount from a provider without having first notified the provider in writing). We noted that this change would afford more clarity concerning the independent certified DSH audit and the requirements on States based on those audits.
We received public comments on this proposal. The following is a summary of the public comments we received and our responses. Because of its relationship with the proposed provisions at § 447.299(f) and (g), which pertain to the treatment of overpayments, these topics overlapped in the comments received. Here, we specifically address comments that referenced the date of discovery, the aspect specific to this proposal, but recommend that the reader review and consider the comments received and our responses on all three provisions (that is, §§ 433.316(f) and 447.299(f) and (g)) in tandem.
We also note that finalizing the date of State submission of the independent certified audit to CMS as an available date for discovery of an overpayment, as opposed to the date the State's auditor first identifies an amount to the State before the State submits the audit to CMS, affords the State an opportunity to review and make appropriate adjustments, as is typical with similar audit data. The State has up to 90 days after receipt of the independent certified audit to review it before it must be submitted to CMS in accordance with § 455.304(b) which we believe is ample time to review DSH audit findings and resolve any disagreement with the audit's contents and/or with overpayment determinations by working with the State's auditor.
In addition, we believe the concerns expressed by commenters are mitigated by other provisions we are finalizing in this rule at § 447.299(f) and (g). Specifically, by clarifying under § 447.299(f) that amounts identified in DSH audits that exceed the hospital-specific DSH limit are to be treated as overpayments, States are afforded the opportunities provided under other overpayment circumstances, which includes the opportunity for a downward adjustment of an overpayment amount under § 433.320(c) as appropriate. This addresses concerns about the fact that the overpayment amount identified in an audit may be subject to change. In addition, we note that States have 2 years to complete redistributions under the provision we are finalizing at § 447.299(g), when in other circumstances, such as returning Federal share, a State only has 1 year to take action on an overpayment. This affords States ample time to compute and perform redistributions of payments to particular hospitals in excess of the hospital-specific DSH limit. Finally, if a State plans to utilize an alternate payment methodology to address circumstances when a hospital may exceed its DSH limit, such as by decreasing supplemental payments, this methodology would need to be reflected in the State plan. Like DSH payment redistribution methodologies, a State should have this methodology in place
As discussed in section I.B.4. of this final rule, section 1923(f)(7)(B)(iii) of the Act requires that the methodology for calculating each State's Medicaid DSH allotment reduction, as first established by the ACA, consider the extent to which the DSH allotment for a State was included in the budget neutrality calculation for a coverage expansion approved under section 1115 (that is, a section 1115 demonstration to provide coverage to individuals not otherwise eligible for Medicaid) as of July 31, 2009. In the 2019 final rule, we finalized a policy to exclude from DSH allotment reductions the amount of DSH allotment States had approved as of July 31, 2009, under a coverage expansion section 1115 demonstration. Any DSH allotment amounts included in budget neutrality calculations for non-coverage expansion purposes (for example, where DSH allotment amounts included in budget neutrality calculations have been used to match State expenditures for approved delivery system reform initiatives) under approved section 1115 demonstrations are still subject to reduction regardless of when they were approved. Further, the preamble to the 2019 final rule indicates that for any section 1115 demonstrations not approved as of July 31, 2009, these DSH allotment amounts included in budget neutrality calculations, whether for coverage expansion or otherwise, would also be subject to reduction. We note that all section 1115 demonstrations approved as of or before July 31, 2009, have expired and the protection does not apply to renewals or extensions of those section 1115 demonstrations. Therefore, there no longer exist any amounts related to coverage expansion to be excluded from future DSH allotment reductions scheduled to begin in FY 2024.
In the absence of DSH audit data relating to how States expend DSH allotment amounts diverted under section 1115 demonstrations, we propose to assign average HUF and HMF reduction percentages to these amounts.
While the provisions of § 447.294(e)(12) are clear that we will assign average reductions to amounts associated with non-coverage expansion purposes in effect as of July 31, 2009, only the preamble to the 2019 final rule addresses the amounts diverted under a section 1115 demonstration approved after July 31, 2009. Additionally, the regulations are not specific regarding how these amounts are determined and accounted for in the DSH allotment reduction methodology. As such, we proposed to update the regulations at § 447.294(e)(12) to clearly specify that amounts diverted under a section 1115 demonstration approved after July 31, 2009, are subject to average reductions under the HUF and HMF so that the regulation may better reflect the policy finalized in the 2019 final rule preamble.
In addition, we proposed to remove the language, “for the specific fiscal year subject to reduction” in § 447.294(e)(12) introductory text and (e)(12)(i), because we are concerned that the current regulatory language could lead to anomalous results, as discussed later in this section. We proposed that the determination of diverted amounts that are subject to average reductions under the HUF and HMF would align with the State plan rate year (SPRY) for the DSH audits utilized in the DSH allotment reduction calculations, as specified in § 447.294(d), rather than the fiscal year subject to reduction. For example, when calculating the statutorily required DSH allotment reductions for FY 2024 (the fiscal year subject to reduction), we would utilize data from each State's SPRY 2019 DSH audit data because this would be the most recent data available to us. For States that do not divert their entire DSH allotment, we would include the amount of each State's DSH allotment diverted under a section 1115 demonstration for the time period that aligns with the associated SPRY (in this example, SPRY 2019). A discussion of States that divert their entire DSH allotment follows this discussion. Each State would then be assigned the average HUF and HMF reduction amounts for the State's respective State group based on this diverted amount.
Section 477.294(e)(12) introductory text and (e)(12)(i) currently align the amount of DSH allotment diverted under a section 1115 demonstration for a fiscal year with the fiscal year of the DSH allotment subject to reduction under section 1923(f)(7)(A)(ii) of the Act. We recognize that this non-alignment between the SPRY 2019 DSH audit data that we would use to determine the HUF and HMF, and the FY 2024 section 1115 demonstration budget neutrality calculation diversion amount that would be used under the current regulation, could result in inappropriate and illogical outcomes. For example, in a case where a State claimed all or almost all of its DSH allotment amount for DSH expenditures for the SPRY DSH audit utilized in the DHRM (here, SPRY 2019), but later diverted a large portion of its DSH allotment amount under a section 1115 demonstration during a year subject to DSH allotment reductions (here, FY 2024), the State could receive a reduction on an amount (including both DSH payments and DSH allotment diverted under a section 1115 demonstration) that is excess of the amount available under its current DSH allotment subject to reductions. Therefore, we stated our belief that our proposed approach is reasonable because in the absence of DSH audit data relating to how States expend DSH allotment amounts diverted under section 1115 demonstrations, CMS will assign average HUF and HMF reduction percentages to these diverted amounts. As such, it is appropriate that the amounts diverted under section 1115 demonstrations should align with the SPRY of the DSH audit used in the DHRM and that the amounts subject to reduction do not exceed what States could have expended, either through DSH payments or diverted DSH allotment amounts, during the associated SPRY. We considered leaving the current regulatory text unchanged.
For States that divert their entire DSH allotment, and as such do not complete DSH audits, we are unable to use a DSH audit SPRY. Therefore, we proposed to apply reductions under the HMF and HUF to the DSH allotment that the State would have had available during the demonstration year (DY) coinciding with the SPRY DSH audits utilized in the DHRM. We also proposed to prorate the FFY allotment amount to determine this reduction in cases where the DY of the section 1115 demonstration crosses two FFYs. For example, as stated previously we would use SPRY 2019 DSH audit data for FFY 2024 DSH allotment reductions. However, if a State that diverts its entire DSH allotment has a DY that begins July 1, 2018, and ends June 30, 2019, we would have to determine the reduction amount associated with the diverted DSH allotment to reflect the amount of the FFY 2018 DSH allotment available from July 1, 2018, through September 30, 2018, and the amount of FFY 2019 DSH allotment available from October 1, 2018, through June 30, 2019. We stated that we did not believe it would be appropriate to calculate the reduction associated with the diverted DSH allotment using the full FFY 2019 DSH allotment because the diverted DSH funds would not have been available for the full DY ending June 30, 2019. For a State that diverts part of its DSH allotment, it would have a SPRY DSH audit already utilized in the DHRM. We would use the diverted DSH amount from the same SPRY, which may also involve prorating diverted DSH amounts from a DY, depending on whether the DY as specified in the section 1115 demonstration aligns with the SPRY. In previous rulemaking, we proposed and finalized a policy to utilize the most recent year available for all data sources and to align the SPRY of data sources whenever possible.
We received public comments on these proposals. The following is a summary of the public comments we received and our responses.
We are finalizing the provision as proposed, with a minor phrasing change to § 447.294(e)(12) replacing “pursuant to” with “in accordance with” to align with current style guidelines.
From June 2, 2017 to October 1, 2021 (the effective date of the CAA 2021), costs and payments for hospital services furnished to beneficiaries who were eligible for Medicaid, even when there was a third-party payer such as Medicare or other insurer that pays primary to Medicaid for inpatient and outpatient hospital services, would all be included in the calculation of Medicaid shortfall portion of the hospital-specific DSH limits in accordance with the “DSH Payments—Treatment of Third-Party Payers in Calculating Uncompensated Care Costs” final rule in the April 3, 2017,
We also explained in the preamble to the proposed rule that we interpreted these new requirements to be applicable for SPRYs “beginning on or after” October 1, 2021, the effective date of the CAA 2021. Previously, certain statutory references to “fiscal year,” such as in section 1923(g)(1) and (2) and (j)(1) of the Act, have also been interpreted as referring to each State's SPRY, instead of the FFY, when establishing requirements for the hospital-specific DSH limit (and audit requirements to ensure that payments comply with hospital-specific DSH limits). In the 2008 DSH audit final rule, CMS indicated that this interpretation was in “recognition of varying fiscal periods between hospitals and States” and that “[t]he Medicaid [SPRY] is the period which each State has elected to use for purposes of DSH payments and other payments made in reference to annual limits.” Further, we stated our belief that interpreting this provision to be applicable on an FFY basis would impose an excessive burden on States and hospitals. In particular, we explained our belief that such an interpretation would create a significant burden in situations when a hospital would qualify to meet the exception for 97th percentile hospitals for a portion of its SPRY, but not for the full SPRY, if qualification were determined on the basis of the FFY. This result would be likely to occur, given that the majority of States have SPRYs that do not align with the FFY. In these instances, States would need to prorate the uncompensated care costs, for affected hospitals, within a SPRY accordingly since the methodology for calculating the Medicaid shortfall portion of the hospital-specific DSH limit may not be consistent for the entire SPRY if the hospital qualified as a 97th percentile hospital for only a portion of the SPRY. As such, we proposed that section 203 of the CAA 2021, including the 97th percentile exception, be effective starting with each State's first SPRY beginning on or after October 1, 2021. For example, if a State's SPRY begins July 1, then the amendments made by section 203 of the CAA 2021 would be effective starting with the SPRY beginning July 1, 2022. Conversely, if a State's SPRY begins each year on October 1, then such amendments would be effective starting with the SPRY beginning October 1, 2021.
Hospitals meeting the definition of a 97th percentile hospital, and therefore, qualifying for the 97th percentile exception will, by statute, calculate their hospital-specific DSH limit using the higher value of either the hospital-specific DSH limit amount determined for the hospital under section 1923(g)(1)(A) of the Act as amended by section 203 of the CAA 2021, or the amount determined for the hospital under section 1923(g)(1)(A) of the Act as in effect on January 1, 2020. Where section 1923(g)(2)(A)(ii) of the Act, as amended by section 203 of the CAA 2021, refers to “the amount determined for the hospital under paragraph (1)(A) as in effect on January 1, 2020,” we interpret this to refer to the hospital-specific limit calculation methodology that was in effect on January 1, 2020, and not the specific dollar amount that was applicable on that date.
We proposed to revise § 447.295(d) to reflect the statutory changes made by section 203 of the CAA 2021 to update the methodology for the calculation of the hospital-specific DSH limit to only include costs and payments for hospital services furnished to beneficiaries for whom Medicaid is the primary payer. In addition, we proposed to revise § 447.295(d) to specify the methodology that hospitals meeting the exception for 97th percentile hospitals would utilize in the calculation of the hospital-specific DSH limit. Specifically, in § 447.295(d)(1), we proposed to specify that for each State's Medicaid SPRYs beginning prior to October 1, 2021 and subject to proposed paragraph (d)(3), only costs incurred in providing inpatient hospital and outpatient hospital services to Medicaid individuals, and revenues received with respect to those services, and costs incurred in providing inpatient hospital and outpatient hospital services, and revenues received with respect to those services, for which a determination has been made in accordance with § 447.295(c) that the services were furnished to individuals who have no source of third-party coverage for the specific inpatient hospital or outpatient hospital service are included when calculating the costs and revenues for Medicaid individuals and individuals who have no health insurance or other source of third-party coverage for purposes of section 1923(g)(1) of the Act.
In § 447.295(d)(2), we proposed to specify the applicable costs and revenues associated with services furnished to Medicaid individuals and individuals who have no health insurance or other source of third-party coverage for purposes of determining the hospital-specific DSH limit under section 1923(g)(1) of the Act. We proposed that for each State's first Medicaid SPRY beginning on or after October 1, 2021, and thereafter, subject to proposed paragraph (d)(3), only costs incurred in providing inpatient hospital and outpatient hospital services to Medicaid individuals when Medicaid is the primary payer for such services, and revenues received with respect to those services, would be included in the Medicaid shortfall portion of the hospital-specific DSH limit calculation. Furthermore, we proposed to specify that only costs and revenues for which a determination has been made in accordance with § 447.295(c) that the services were furnished to individuals who have no source of third-party coverage for the specific inpatient hospital or outpatient hospital service would be included in the uninsured shortfall portion of hospital-specific DSH limit calculation.
As noted previously, we proposed to implement the 97th percentile hospital exception in proposed § 447.295(d)(3), which would specify that, effective for each State's first Medicaid SPRY beginning on or after October 1, 2021, and thereafter, the hospital-specific DSH limit for a 97th percentile hospital defined in proposed paragraph (b) would be the higher of the values from
We also proposed to develop a data set (compiling cost report, claims, and eligibility data) to determine which hospitals, ranked on a national level, qualify to meet the statutory 97th percentile hospital exception. We proposed to publish these data for use in determining which hospitals qualify as a 97th percentile hospital on an annual basis, electronically or in another format as determined by CMS, prior to the SPRY to which the data would apply. We would determine which hospitals qualify as a 97th percentile hospital on an annual basis prior to each SPRY beginning on or after October 1. In this way, we explained that we would be able to qualify hospitals on the basis of SPRYs, while also accounting for non-alignment of SPRYs across States. Again, this would not be done on the basis of the FFY, but rather would be an annual process to qualify hospitals for each SPRY. We indicated that we would publish these data once a year, prior to October 1. Each State could then use these data to determine which hospitals qualify for the 97th percentile hospital exception for the State's SPRY that begins between that October 1 and September 30 of the following calendar year.
We proposed to determine a hospital's qualification for the 97th percentile exception for each SPRY on a prospective basis. We explained our belief that this is a reasonable interpretation in that the statute specifically refers to the “most recent cost reporting period” in determining a hospital's qualification “for the fiscal year,” which, as noted, we interpret to mean SPRY. That is, we believe it is reasonable to interpret the reference to the “most recent cost reporting period” in section 1923(g)(2)(B) of the Act to mean the most recent cost reporting period for which there is a cost report available before the beginning of the SPRY for which the 97th percentile hospitals are being identified.
By applying this exception prospectively, we eliminate the need to retroactively rank and qualify hospitals based on actual Medicare SSI days and ratios for services furnished during the SPRY. This application would allow for States and hospitals to know prior to the beginning of the SPRY which hospitals qualify for the exception. That knowledge would allow States and hospitals to gauge how payments should be made and measured against hospital-specific DSH limits and provide greater payment predictability than a retroactive application. We believe this interpretation to also be the most feasible from an operational standpoint for CMS, States, and hospitals.
To compile this source of data, we explained that we would use data originating from various systems and sources, including the Healthcare Cost Report Information System (HCRIS) and Medicare Provider Analysis and Review (MEDPAR) files, and SSI eligibility data from the Social Security Administration (SSA). Utilizing HCRIS, we would identify the universe of hospitals that have filed a Medicare cost report and each hospital's most recent cost reporting period, including acute care hospitals paid under the inpatient prospective payment system (IPPS), critical access hospitals, inpatient rehabilitation facilities, and inpatient psychiatric facilities.
We explained that we would then determine each hospital's Medicare SSI days for discharges occurring in the hospital's most recent cost reporting period, regardless of the length of that cost reporting period, using a data set that combines MEDPAR claims data and SSI eligibility data. We would utilize Medicare SSI days for discharges occurring in the cost reporting period, rather than Medicare SSI days occurring within the cost reporting period because the MEDPAR data show the Medicare SSI day count for each inpatient stay as a whole. This approach is consistent with how Medicare uses these data to develop the Medicare SSI days ratios for Medicare DSH purposes. Section 1886(d)(5)(F)(vi) of the Act, in describing the Medicare SSI percentage within the Medicare “disproportionate patient percentage,” refers to the “number of such hospital's patient days for such period.” Then, the implementing regulations at 42 CFR 412.106 describe the Medicare SSI days used for Medicare DSH as patient days that “are associated with discharges that occur during that period.” This approach means if an inpatient stay begins in one cost reporting period but ends in the next cost reporting period, we would not count any of the inpatient stay's days toward the day count for the first cost reporting period, but instead count all of this inpatient stay's days toward the day count for the second cost reporting period. This approach does not favor the counting of days in one cost reporting period over others. On average, exclusion of days for inpatient stays that straddle between one cost reporting period and the hospital's next cost reporting period would be offset by any inclusion of days for inpatient stays that straddle between that one cost reporting period and the hospital's previous cost reporting period. Therefore, we can ensure we do not overinclude or underinclude Medicare SSI days for inpatient stays that straddle two cost-reporting periods.
To determine each hospital's percentage of Medicare SSI days to total inpatient days, we proposed that we would divide the Medicare SSI days by each hospital's total inpatient days for that same cost reporting period from HCRIS to obtain a percentage. We would then compile two lists—one that ranks the hospitals based on the absolute number of Medicare SSI days and another that ranks them by the percentage of inpatient days that are Medicare SSI days, respectively. A hospital may qualify to meet the 97th percentile exception based on its rankings on either of the two lists.
We proposed to utilize the Medicare SSI days and total inpatient days data to mathematically determine a threshold of acceptance to identify hospitals meeting the 97th percentile exception. The array includes either the values of Medicare SSI days or the percentage of inpatient days that are Medicare SSI days, for the universe of hospitals nationwide identified through this data process. For the Medicare SSI days, the 97th percentile threshold would be rounded to the nearest whole number, with x.5 or higher rounded up, and less than x.5 rounded down. Any hospital with Medicare SSI days for its most recent cost reporting period greater than or equal to the 97th percentile threshold would qualify as a 97th percentile hospital. For the percentage of inpatient days that are Medicare SSI days, all values would be rounded to the fourth decimal place (0.xxxx, alternatively stated as xx.xx percent), including each hospital's own percentage and the 97th percentile threshold. Values of 0.xxxx5 or higher would be rounded up, and less than 0.xxxx5 would be rounded down. Any hospital that has a percentage of total inpatient days that are Medicare SSI days from its most recent cost reporting period that is greater than or equal to the 97th percentile threshold would qualify as a 97th percentile hospital. We proposed that the ranking would be on a national level, as the statutory language under section 203 of the CAA 2021 refers to “97th percentile of all hospitals,” which we believe is most consistent with a national, rather than a State-level ranking.
To follow the statutory requirement to utilize information from the most recent cost reporting period, we proposed to utilize each hospital's most recent cost reporting period for which there is a filed cost report in HCRIS, at a particular point in time in advance of the SPRY to which the 97th percentile qualification would apply. A filed cost
In the proposed rule, we described the cost report status changes, from the cost report's initial submission to its potential reopening after settlement. Consistent with that expected workflow, when there is more than one cost report for a hospital for its most recent cost reporting period in the HCRIS database as of the snapshot date, we will select the latest cost report based on the following order of the cost report status codes as they appear in HCRIS, from earliest to latest: 1 (as submitted), 5 (amended), 2 (settled without audit) or 3 (settled with audit), 4 (reopened). If there happens to be both a “settled without audit” cost report record and a “settled with audit” cost report record for a hospital for the same cost reporting period in the HCRIS database, we will determine the later of the two based on the date that record is processed into HCRIS, consistent with our stated intention to use the most up-to-date information available as of the snapshot date. We also noted that we have observed in rare cases that, for a given cost reporting period, a hospital may have one or more versions of the cost report (that is, “amended,” “settled without audit,” “settled with audit,” and/or “reopened”) without having the initial version of the cost report (“as submitted”) in the HCRIS database as of the snapshot date. Regardless, as long as the cost reporting period is the most recent period for which a cost report record exists for the hospital in the HCRIS database, we will follow the sorting order described above in choosing the latest cost report from the relevant cost reporting period.
We proposed to utilize both covered and non-covered Medicare Part A days when collecting data and calculating hospital percentiles. The statutory language in section 1923(g)(2)(B)(i) of the Act as modified by section 203 of the CAA 2021 specifically refers to patients who were entitled to benefits under part A of title XVIII. A patient's status as entitled to benefits under part A of title XVIII does not depend on whether payment for a particular inpatient day was available under Medicare Part A payment principles, and a qualifying Medicare beneficiary remains entitled to benefits under Part A even if Medicare payment is not available with respect to a particular inpatient day.
Hospitals may provide acute inpatient hospital services, as well as other inpatient hospital services, in distinct part units of the hospital. The distinct part units of a hospital that provide inpatient hospital services, which are reported separately on the hospital's Medicare cost report, are rehabilitation distinct part units and psychiatric distinct part units. We proposed to include all inpatient days for inpatient hospital services reported on each hospital's Medicare cost report, including days furnished in distinct part units of the hospital that provide inpatient hospital services, for purposes of determining a hospital's Medicare SSI days and total inpatient days. We note that Medicare pays for services furnished in these distinct part units under different payment systems from the acute care inpatient hospital services provided by the hospitals. However, for Medicaid purposes, the DSH uncompensated care costs of the hospital are inclusive of the costs of inpatient and outpatient hospital services furnished by the hospital, including those furnished in these distinct parts. Therefore, we believe the hospital's Medicare SSI days and total inpatient days should be inclusive of these distinct part unit days and not limited to acute inpatient hospital days. In this final rule, we are also clarifying that days in which a swing bed in a hospital, including a critical access hospital, is used for skilled nursing facility or nursing facility services are not to be included in determining a hospital's Medicare SSI days and total inpatient days, because those days are for nursing facility services rather than inpatient hospital services.
In determining when we can begin to collect and assemble the necessary data prior to the beginning of each upcoming SPRY that begins on or after October 1 each year, we proposed to use HCRIS data as it exists as of March 31, in advance of October 1 of that same calendar year. Using the HCRIS data as of March 31, we explained that we would identify each hospital's most recent cost reporting period for which the hospital has an available cost report and also identify the total inpatient days from the latest cost report available for that most recent cost reporting period. We also proposed to use the latest available MEDPAR files and SSI eligibility data, as of the same March 31 date, to determine the Medicare SSI days data that correspond to that same most recent cost reporting period for each hospital.
For example, for the 97th percentile determination applicable to SPRYs beginning October 1, 2023, through September 30, 2024, (that is, SPRYs beginning during FFY 2024), we explained that we would determine a hospital's most recent cost reporting period in which it has a cost report in HCRIS as of March 31, 2023. For instance, if a hospital's most recent cost reporting period with a cost report in HCRIS as of March 31, 2023, is from July 1, 2021, to June 30, 2022, we would take the total inpatient day count from that cost report. Then we would utilize the MEDPAR files and SSI eligibility data available as of March 31, 2023, to determine the hospital's Medicare SSI days for the discharges occurring in that same cost reporting period of July 1, 2021, to June 30, 2022.
We explained that using the most recently available data as of March 31 in
Given the timing of this rulemaking and the October 1, 2021, effective date of the amendments made by section 203 of the CAA 2021, we proposed to produce the 97th percentile hospital data for both SPRYs beginning during FFY 2022 and SPRYs beginning during FFY 2023 using the necessary Medicare SSI days and cost report information as it would have been available to us under the timelines in the proposed rule. For example, for the data necessary to determine hospitals meeting the 97th percentile exception for SPRYs beginning during FFY 2022, we proposed that we would obtain a snapshot of the HCRIS, MEDPAR, and SSI eligibility data as would have been available on March 31, 2021.
While we proposed to include all hospitals that provide Medicaid-covered inpatient services and file a Medicare cost report in our data set, we noted that there would be circumstances resulting in some hospitals being omitted from the data set. We explained that we would begin gathering all necessary data after March 31 of each year, based on the data availability described previously, to develop the data set to rank and indicate which hospitals qualify to meet the 97th percentile hospital exception for each State's upcoming SPRY that begins on or after October 1 of that year. In accordance with 42 CFR 413.24(f)(2), cost reports are generally due 5 months from the end of each hospital's cost-reporting period. For example, a hospital with a cost reporting year end of September 30 would generally be expected to file a cost report by the end of February the following year, while a hospital with a cost reporting year end of June 30 would generally be expected to file its cost report by the end of November of that year. However, we also wanted to build in a reasonable window for late filing and cost report processing into HCRIS. Therefore, we proposed to include in the data set any hospital that has filed a cost report dating back to at least September 30, 3 years prior to capture as many hospitals as possible in our data set. We explained that it is unlikely that there would be a delay greater than 3 years from when a hospital's cost report is generally due to when that cost report is captured in HCRIS. For example, when we begin the data development process for data available through March 2023, we would exclude a hospital from the data set that does not have a cost report in HCRIS from a cost reporting period ending by September 30, 2020, or later. We proposed this cutoff to capture as many hospitals in our data set as possible, but to also prevent significant variability in the cost-reporting periods by excluding Medicare hospitals whose most recent cost-reporting period for which there is a cost report in HCRIS dates back more than 3 years. This cutoff is intended to help exclude hospitals that may be inactive or terminated from our data set.
As noted earlier in this section, we also proposed to include in the data set only hospitals that file a Medicare cost report. Because the Medicare cost report data are the source of total inpatient days, it is necessary for a hospital to file a Medicare cost report to calculate a hospital's Medicare SSI day as a percentage of total inpatient days. We explained that we cannot perform the calculations without this cost report information. Therefore, we proposed to include only hospitals that file a Medicare cost report in the data set. Section 1923(g)(2)(B) of the Act recognizes the necessity of the Medicare cost report for the implementation of the 97th percentile exception by basing the qualification for the exception on the number or percentage of Medicare SSI days for the “most recent cost reporting period.” Therefore, we explained our belief that it is appropriate and consistent with the statutory requirements to include only these hospitals that have submitted Medicare cost reports in the data set for both 97th percentile exception lists. We noted that we did not anticipate this to be a problem, since any hospital serving Medicaid patients but that does not file a Medicare cost report, would not qualify for the 97th percentile hospital exception. In accordance with § 413.24(f), Medicare-participating hospitals are required to file cost reports, which are generally due 5 months after the close of each cost reporting period. In accordance with Medicare Provider Reimbursement Manual, Part II, Section 110, hospitals with no Medicare utilization do not need to file a cost report, and hospitals meeting low Medicare utilization thresholds may file a less than full cost report with limited information. Because a hospital would only qualify for the 97th percentile hospital exception with a relatively high volume of Medicare SSI days, a hospital with no or low Medicare utilization, and therefore, with no cost report or with a less than full cost report which would not have inpatient days data, would not qualify for the 97th percentile hospital exception.
Given that we proposed to use snapshot cost report, claims, and eligibility data in advance of October 1 each year to produce nationwide lists applicable for each State's upcoming SPRY beginning on or after that October 1, we proposed that we would not modify the 97th percentile qualification results based on a request by one or more individual hospitals (or by one or more States, with respect to one or more individual hospitals) to update or reconsider hospital cost report, claims, or eligibility data. The snapshot approach recognizes that, at a given point in time, a hospital's most recent cost reporting period for which there is a cost report available in HCRIS, as well as the hospital's number of total
Nonetheless, we recognized in the proposed rule that there is a possibility of a mathematical or other similar technical error by CMS that could lead to a misidentification of the hospitals that qualify for the 97th percentile exception. In such a circumstance, we noted our belief that it would be appropriate for us to correct our error, recognizing that this could result in some hospitals being determined eligible for the 97th percentile hospital exception that previously (erroneously) were not so listed, and other hospitals losing their previous (erroneous) designation as qualifying for the exception. At the same time, we observed that we must balance this consideration with the recognition that the published lists will be relied upon by States and hospitals for identifying which hospitals qualify for the exception, hospital-specific limits will be set accordingly, and DSH payments will be made; all interested parties (including hospitals, the States, and CMS) have an interest in finality for these payments after a reasonable time. Accordingly, we proposed to allow 1 year from the posting of the 97th percentile hospital lists for States, hospitals, CMS, or other interested parties to identify any mathematical or other similar technical error made by CMS, according to instructions that would appear on the published lists. Upon CMS verification that an error occurred that affected the hospitals appearing on a list of 97th percentile hospitals for a given year, we would determine and publish a revised list as soon as practicable. We noted our belief that 1 year is a reasonable timeline for identifying any mathematical or other similar technical error made by CMS and would also allow a corrected qualifying list to be available in advance of the start of the independent DSH audit for the respective SPRY in most instances. For example, if we publish the qualifying lists in 2023 for application retroactively to a SPRY that begins October 1, 2021 (that is, SPRY 2022), we would post a corrected qualifying list, if necessary, sometime in 2024. Then, when the independent audit is performed for that SPRY in 2025, the final 97th percentile qualification lists would be available and not subject to any further changes. Accordingly, in paragraph (2) of the proposed definition of 97th percentile hospital in § 447.295(b), we proposed that CMS would publish lists identifying each 97th percentile hospital annually in advance of October 1 of each year. We proposed that CMS would revise a published list only to correct a mathematical or other similar technical error made by CMS that is identified to CMS during the one-year period beginning on the date the list is published.
We proposed that the effective date for this and other CAA 2021-related proposals, noted in the respective sections, be applicable to fiscal years beginning on or after October 1, 2021, to align with the effective date of the CAA 2021.
We received public comments on these proposals. The following is a summary of the public comments we received and our responses.
In the proposed rule, we also stated that for purposes of calculating the hospital-specific DSH limit, section 203 of the CAA modified the calculation of the Medicaid portion of the hospital-specific DSH limit to include only costs and payments for services furnished to beneficiaries for whom Medicaid is the primary payer for such services, as specified in section 1923(g)(1)(B)(i) of the Act.
Before the statutory amendments made by section 203 of the CAA 2021, section 1923(g)(1)(A) of the Act included in the Medicaid shortfall portion of the hospital-specific DSH limit calculation costs and payments of individuals “eligible for medical assistance under the State plan.” As discussed in the Uninsured Rule, costs and payments associated with the provision of inpatient and outpatient hospital services for all Medicaid eligible individuals would have been captured in the Medicaid shortfall portion of the calculation, regardless of whether that individual's Medicaid benefit was exhausted, or a Medicaid coverage limit had been reached for the associated inpatient or outpatient hospital service.
However, section 1923(g)(1)(B)(i) of the Act, as amended by section 203 of the CAA 2021, now specifies that the Medicaid shortfall portion of the hospital-specific DSH limit will be limited to costs and payments of furnishing hospital services to “[i]ndividuals who are eligible for medical assistance under the State plan or under a waiver of such plan and for whom the State plan or waiver is the primary pay[e]r for such services.” We interpret the statutory change specifying that Medicaid must be the primary payer “for such services” to direct a service-specific approach to determining Medicaid's status as primary payer, consistent with how, under the Uninsured Rule, we determine an individual's status as uninsured for a particular hospital service.
Following the service-specific approach to determining an individual's insured status as outlined in the Uninsured Rule,
For purposes of the methodology in effect on January 1, 2020, costs and payments associated with the universe of Medicaid eligible individuals would be captured in the Medicaid portion of the hospital-specific DSH limit calculation regardless of whether or not the individual had Medicaid coverage for inpatient and/or outpatient hospital services and regardless of whether any such coverage had been exhausted. We note that while the change in policy as a result of the amendments made by section 203 of the CAA 2021 results in different treatment of some Medicaid eligible individuals for purposes of calculating hospital-specific DSH limits (based on whether the individual's Medicaid benefits include coverage of inpatient and/or outpatient hospital services, and whether the individual's Medicaid benefits for hospital services have been exhausted or coverage limits have been reached), this change does not affect the costs and payments captured in hospital-specific DSH limit calculations overall, provided that the individual has no other health insurance or other source of third-party coverage for inpatient and/or outpatient hospital services, as relevant. Rather, the change merely affects whether particular costs and payments are captured in the Medicaid or uninsured shortfall portion of the hospital-specific DSH limit calculation.
Additionally, commenters inquired about cases where an individual had no Medicare Part A coverage but had certain charges covered and paid by Medicare Part B during an inpatient stay. Similarly, commenters also inquired if Medicaid would be considered the primary payer for an inpatient stay in cases where the individual has third-party coverage for ancillary services but no coverage for routine inpatient hospital services, inquiring whether the inpatient routine portion of the stay would be includable in the Medicaid shortfall calculation of the hospital-specific DSH limit. Commenters questioned whether the individuals in these scenarios would be considered to have third party coverage, be uninsured, or if Medicaid could be considered the primary payer for these inpatient hospital services.
Under existing third-party liability rules, there are limited exceptions to the general rule that Medicaid is the payer of last resort, and these exceptions typically apply to federally administered health programs. For a federally administered health program to be an exception to the general status of Medicaid as the payer of last resort, the statute creating the program must expressly state that it pays for a service after Medicaid, such as the Ryan White Fund under 42 U.S.C. 300ff
However, commenters also specifically inquired about unique circumstances where, in addition to Medicaid, a hospital inpatient has Medicare Part B only (that is, the patient is not also entitled to or enrolled in Medicare Part A, or has already exhausted their Medicare Part A benefits), which pays for limited services in certain circumstances for a beneficiary who is an inpatient, or has other third-party coverage that is only for ancillary services. In general, we consider ancillary services to be services provided by a hospital that are separate from routine services
Regardless of whether the ancillary services are covered by Medicare Part B or another third-party payer, such as a private insurance policy, we will defer to States to determine whether that third-party coverage is considered coverage for inpatient hospital services. The Medicare program generally is structured to pay for inpatient hospital services under Part A,
Regarding the comment inquiring about other third-party coverage that only pays for ancillary services but not routine services, we do not have enough information about who this payer would be or what it would cover to give guidance on whether that third-party coverage would be regarded as coverage for inpatient hospital services and therefore would be considered primary to Medicaid. Again, in this case, we will defer to the State to make a reasonable determination of whether such third-party coverage provides coverage for inpatient hospital services that will be considered to be the primary payer for the inpatient hospital stay.
In this scenario, whether the payer in addition to Medicaid is Medicare Part B or another third-party payer, we further note that since individuals have coverage for inpatient hospital services (whether Medicaid, Medicare, or another third party), they would not be considered uninsured for purposes of inclusion in the hospital-specific DSH limit. As mentioned, we acknowledge that, where a State does determine that Medicare Part B or another third-party payer is the primary payer for inpatient hospital services where it only makes payments for ancillary services furnished during the stay, the inpatient hospital service costs and payments for the entire inpatient stay would be excluded from the hospital-specific DSH limit, and this could result in the exclusion of some Medicaid costs and payments. We will monitor for State handling of these scenarios once the rule is in effect to ascertain whether the rule is resulting in unexpected outcomes, and we may undertake additional rulemaking in the future if necessary to address the issue.
We do not agree with the comment that changing the effective date to coincide with hospitals' cost reporting periods would provide a consistent view of how each hospital system benefits from DSH. We acknowledge that hospital cost reports, and internal audits of such cost reports, may not align with the State's SPRY. However, the DSH independent certified audit requirement at section 1923(j) of the Act, as implemented in the 2008 DSH final audit rule, requires States to conduct an audit of their DSH programs and identify DSH payments made against hospital-specific DSH limits on the basis of each State's SPRY.
Further, we believe interpreting this provision to be applicable on a FFY basis would impose an excessive burden on States and hospitals, in particular with the application of the exception for 97th percentile hospitals. We note that the majority of States have SPRYs that do not align with the FFY. In these instances, if we were to apply section 203 of the CAA 2021 to the FFY beginning on October 1, 2021, and thereafter, States would need to prorate the uncompensated care costs for affected hospitals within a SPRY accordingly, since the methodology for calculating the Medicaid shortfall portion of the hospital-specific DSH limit may not be consistent for the entire SPRY. If the hospital qualified as a 97th percentile hospital for only a portion of the SPRY, this proration would be on top of the proration that would already be necessary to account for differences between a hospital's cost reporting period and the State's SPRY.
Finally, we believe the commenter who requested that we be cognizant of the difference in State-to-State distribution of DSH funds was pointing out that each State operates its DSH program differently, and that there is variation in how States distribute their DSH payments to eligible providers within their State DSH allotments. We acknowledge that States have flexibility in the operation of their DSH programs, subject to Federal requirements, including section 1923(g) of the Act on the hospital-specific DSH limit. This final rule does not affect the existing flexibility each State has in how it operates its DSH program or distributes its DSH payment in accordance with its State plan, but this rule does address the changes to the hospital-specific DSH limit as required by section 203 of the CAA. We also acknowledge that while
In the Additional Information on DSH Reporting and Auditing Requirement Part 2—Question 21, we discussed cost report proration in calculating a hospital's uncompensated care costs (UCC) for a SPRY using more than one cost report, when a hospital's cost reporting period does not align with the State's SPRY.
We expect that activities required for the implementation of the amendments made by section 203 of the CAA 2021 to follow the same proration approach to conform hospitals' cost reporting periods to the SPRY. For example, if a SPRY is from July 1, 2022 to June 30, 2023, and a hospital's cost report year end is December 31, regardless of the amendments made by section 203 of the CAA 2021, there is a need to prorate the hospital's cost report data from both its December 31, 2022 and December 31, 2023 cost reports to determine the hospital's hospital-specific DSH limit for the SPRY from July 1, 2022 to June 30, 2023. In using the December 31, 2022, and December 31, 2023, cost report data to prorate to this SPRY, which is the State's first SPRY that begins on or after October 1, 2021, the hospital and the State would need to follow section 1923(g) of the Act, as amended by section 203 of the CAA 2021, and this final rule in determining the hospital-specific limit. As is consistent with 2008 DSH audit final rule, an overpayment is identified when the DSH payment received by a hospital for the SPRY is in excess of its hospital-specific limit for the same SPRY.
We selected the 3-year cutoff based on timing of cost report submissions but also considering cost report filing delays and HCRIS processing lags. As long as a hospital has a cost report in the HCRIS database that meets the criteria on March 31, the snapshot date we are establishing to allow us to timely generate the 97th percentile hospital exception lists each year, the hospital will be included in the dataset. We are also including Medicare cost reports that are filed as low- or no-Medicare utilization cost reports as long as they exist in the HCRIS database and meet the specified timing criteria. Where there is no total inpatient day information or the total patient day is reported as zero in a cost report included in our dataset, we will use a zero value for the percentage of total inpatient days that are Medicare Part A SSI days for the purpose of the 97th percentile hospital ranking.
As discussed in the proposed rule, even if we were to consider an alternative mechanism outside of the existing Medicare cost report data to collect total inpatient days from hospitals without Medicare cost reports in HCRIS, there would not be a way to define the most recent cost reporting period for those hospitals that would be consistent with how we are defining it for hospitals that do have a cost report. As such, we are finalizing the rule as proposed to exclude hospitals with no Medicare cost report from the dataset we will use to determine the lists of hospitals qualifying for the exception for 97th percentile hospitals.
The process and procedures that we are establishing for the 97th percentile hospital exception relies on existing Medicare data in the CMS cost report and claims systems as of a particular snapshot date each year. We will ensure that we are extracting the correct values from those systems and compiling them accurately in accordance with the procedures we are establishing in this final rule and proposed to allow for an opportunity to make corrections where mathematical or other similar technical errors may occur in these steps. As such, we proposed to give States and interested parties 1 year from the release of the 97th percentile hospital lists and dataset, including those for retroactive periods back to the first SPRYs beginning on or after October 1, 2021, to bring forward issues resulting from mathematical or other similar technical errors made by CMS in the steps of extracting and compiling the data and determining the 97th percentile hospital exception qualification. We believe that not only is this timeframe appropriate for addressing the narrow scope of errors we would expect could arise in this process but also extending the timeframe out further would extend the period of uncertainty for States and hospitals relying on timely, finalized data.
We proposed to eliminate the § 447.297(c) requirement to publish annual DSH allotments in the
Additionally, we proposed in § 447.297(b) and (d)(1) to remove the date on which final national targets and allotments are published, currently specified as April 1, and revise this timeframe to as soon as practicable. In § 447.297(d)(1), we also proposed to remove the phrase “prior to the April 1 publication date,” and to add in its place the phrase, “prior to the posting date” for consistency with the new timeframe. We proposed to remove the April 1 publication date to allow for Medicaid expenditures associated with the FFY DSH allotment to be finalized. CMS utilizes these amounts in the calculations of the 12 percent limit under section 1923(f)(3)(B)(ii) of the Act. Finally, we proposed to remove § 447.297(c), which consists of redundant publication requirements already identified in § 447.297(b), (c), and (d), in its entirety, to align with our proposed changes § 447.297(c).
We received public comments on these proposals. The following is a summary of the public comments we received and our responses.
We acknowledge this change in publication location and uncertainty of dates could make it difficult for non-State entities to know when the final allocation report is available. We intend to communicate through multiple channels, such as emails, list servs, and calls with interested parties, when the
We proposed to revise § 447.299(c)(6), (7), (10), and (16) to reflect the statutory changes made by section 203 of the CAA 2021 to update the methodology for calculating the Medicaid shortfall portion (Medicaid costs less Medicaid payments) of the hospital-specific DSH limit to only include costs and payments for hospital services furnished to beneficiaries for whom Medicaid is the primary payer, effective for the SPRY beginning on or after October 1, 2021, and subsequent years, and to include the statutory exception for 97th percentile hospitals. Hospitals meeting this exception will calculate their hospital-specific DSH limit using the higher value of either the hospital-specific DSH limit calculated per the methodology which includes only costs and payments associated with beneficiaries for whom Medicaid is the primary payer or the hospital-specific DSH limit calculated per the methodology in effect on January 1, 2020. We reviewed the other data elements in § 447.299(c) to determine if additional updates were necessary to account for the changes made by section 203 of the CAA 2021. However, we noted our belief that these are the only data elements requiring updates because these are the only elements that will differ based on whether statutory requirements provide for the consideration of all Medicaid eligible individuals or only those for whom Medicaid is the primary payer. Therefore, we explained that it was only necessary to revise § 447.299(c)(6), (7), (10), and (16) to account for the statutory changes made by section 203 of the CAA 2021.
Accordingly, we proposed to revise § 447.299(c)(6), which specifies that this data element should include inpatient and outpatient Medicaid fee-for-service (FFS) basic rate payments paid to hospitals, “not including DSH payments or supplemental/enhanced Medicaid payments, for inpatient and outpatient services furnished to Medicaid eligible individuals.” We proposed this change because, for most hospitals, for SPRYs beginning on or after October 1, 2021, only those FFS payments for Medicaid eligible individuals for whom Medicaid is the primary payer will be counted in the calculation of the hospital-specific DSH limit. Therefore, we proposed to revise § 447.299(c)(6) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that FFS payments for inpatient and outpatient hospital services furnished to Medicaid individuals in accordance with § 447.295(d) should be included in this data element.
We also proposed to revise § 447.299(c)(7), which specifies that this data element includes payments made to the hospitals “by Medicaid managed care organizations for inpatient hospital and outpatient hospital services furnished to Medicaid eligible individuals.” We proposed this change because for most hospitals, for SPRYs beginning on or after October 1, 2021, only payments made by Medicaid managed care organizations for Medicaid eligible individuals for whom Medicaid is the primary payer will be counted in the calculation of the hospital-specific DSH limit. Therefore, we proposed to revise § 447.299(c)(7) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that Medicaid managed care payments for inpatient and outpatient hospital services furnished to Medicaid individuals in accordance with § 447.295(d) should be included in this data element.
We also proposed to revise § 447.299(c)(10), which specifies that this data element includes “costs incurred by each hospital for furnishing inpatient hospital and outpatient hospital services to Medicaid eligible individuals.” We proposed this change because for most hospitals, for SPRYs beginning on or after October 1, 2021, only costs incurred on behalf of Medicaid eligible individuals for whom Medicaid is the primary payer will be counted in the calculation of the hospital-specific DSH limit. Therefore, we proposed to revise § 447.299(c)(10) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that costs incurred by each hospital for furnishing inpatient hospital and outpatient hospital services to Medicaid individuals as determined in accordance with § 447.295(d) should be included in this data element.
Finally, we proposed to revise § 447.299(c)(16), which currently specifies the calculation of uncompensated care costs to include “the total cost of care for furnishing inpatient hospital and outpatient hospital services to Medicaid eligible individuals” and the uninsured, which are to be offset by “Medicaid FFS rate payments, Medicaid managed care organization payments, supplemental/enhanced Medicaid payments, uninsured revenues, and section 1011 payments for inpatient and outpatient hospital services.” Therefore, we proposed to revise § 447.299(c)(16) to remove the reference to “Medicaid eligible individuals” and update the regulatory text to indicate that total annual uncompensated care cost equals the total cost of care for furnishing inpatient hospital and outpatient hospital services to “Medicaid individuals as determined in accordance with § 447.295(d) and to individuals with no source of third-party coverage for the hospital services they receive,” less the sum of payments received on their behalf, should be included in this data element.
We proposed that this and other CAA 2021-related proposals, noted in the respective sections, be applicable to fiscal years beginning on or after October 1, 2021, to align with the effective date of the amendments made by section 203 of the CAA 2021.
We received public comments on these proposals. The following is a
To improve the accuracy of identification of provider overpayments discovered through the DSH audit process, we proposed to add an additional reporting requirement for annual DSH audit reporting required by § 447.299. We proposed to redesignate § 447.299(c)(21) as paragraph (c)(22) of that section, and to add a proposed new § 447.299(c)(21) to require an additional data element for the required annual DSH audit reporting. The new data element we proposed would require auditors to quantify the financial impact of any finding, including any impact resulting from incomplete or missing data, lack of documentation, non-compliance with Federal statutes or regulations, or other deficiencies identified in the independent certified audit, which may affect whether each hospital has received DSH payments for which it is eligible within its hospital-specific DSH limit.
Currently, audits may include a caveat indicating the auditors are unable to quantify the financial impact of an identified audit finding. We proposed that, for purposes of § 447.299, audit finding means an issue identified in the independent certified audit required under § 455.304 concerning the methodology for computing the hospital-specific DSH limit or the DSH payments made to the hospital, including compliance with the hospital-specific DSH limit as defined in § 447.299(c)(16). For example, an audit may identify that a hospital was unable to satisfactorily document the outpatient services it provided to Medicaid eligible patients, resulting in the exclusion of associated costs and payments from the Medicaid shortfall calculation. Based on this lack of documentation, the audit may include a caveat noting the auditor's finding that the hospital's total uncompensated care cost may be misstated as a result of this exclusion, with unknown impact on the hospital-specific DSH limit. Given this lack of quantification of the financial impact of this finding, CMS and the State would be unable to determine whether an overpayment has resulted related to this audit finding, and if so, the amount. We believe that requiring the quantification of such findings would limit the burden on States and CMS of performing follow-up reviews or audits. Specifically, conducting a secondary review or audit after the independent auditors have completed theirs would lengthen the review process, and therefore, delay the results of the audit. It would also require additional time, personnel, and resources by CMS, States, and hospitals to participate in a secondary review or audit, which would largely duplicate aspects of the audit already conducted by the independent auditor. If finalized, the new data element would help ensure appropriate recovery and redistribution, as applicable, of all DSH overpayments in excess of the hospital-specific limit. Adding this requirement to the submission would also ensure auditors provide the additional information at the time they are already reviewing the applicable data, reducing the labor burden as opposed to a later, secondary audit.
We explained that auditors would be afforded the professional discretion and the flexibility to determine how to best quantify these amounts in the audit findings. For example, auditors would be able to use alternative source documentation, utilize a methodology to estimate the financial impact in terms of the dollar amount at risk, or provide an estimated range of financial impact if a determination of an exact dollar amount is not possible. However, we also noted our understanding that, due to the complexity of issues that may arise, the actual financial impact of an audit finding may not always be calculable. Therefore, we proposed that, in the expectedly rare event that the actual financial impact cannot be calculated, a statement of the estimated financial impact for each audit finding identified in the independent certified audit that is not reflected in the other data elements identified in § 447.299(c) would be required. We proposed that actual financial impact would mean the total amount associated with audit findings calculated using the documentation sources identified in § 455.304(c). Estimated financial impact would mean the total amount associated with audit findings calculated on the basis of the most reliable available information to quantify the amount of an audit finding in circumstances where complete and accurate information necessary to determine the actual financial impact is not available from the documentation sources identified in § 455.304(c). The estimated financial impact would use the most reliable available information (for example, related source documentation such as data from State systems, hospitals' audited financial statements, and Medicare cost reports) to quantify an audit finding as accurately as possible. We noted our belief that this additional data reporting element is necessary to better enable our oversight of the Medicaid DSH program to better ensure compliance with the hospital-specific DSH limit in section 1923(g) of the Act.
Additionally, we proposed to add § 447.299(f), which would codify our existing policy for how overpayments identified through the annual independent certified DSH audits required under part 455, subpart D, must be handled and reported to CMS. Specifically, we proposed that DSH payments found in the independent certified audit process under part 455, subpart D, to exceed hospital-specific limits are provider overpayments for which FFP must be returned to the Federal Government in accordance with the requirements in 42 CFR part 433, subpart F, or redistributed by the State to other qualifying hospitals, if redistribution is provided for under the approved State plan. We proposed that overpayment amounts returned to the Federal Government must be separately reported on the Form CMS-64 as a decreasing adjustment which corresponds to the fiscal year DSH allotment and Medicaid SPRY of the original DSH expenditure claimed by the State.
We further proposed to add § 447.299(g), which would establish reporting requirements concerning the redistribution of DSH overpayments in accordance with a State's redistribution methodology in its Medicaid State plan, as applicable. Specifically, we proposed that, as applicable, States would be required to report any overpayment redistribution amounts on the Form CMS-64 within 2 years from the date of discovery that a hospital-specific limit has been exceeded, as determined under § 433.316(f) in accordance with a
We explained that these proposals for the independent certified audit and DSH-related claims reporting would enhance Federal oversight of the Medicaid DSH program and improve the accuracy of DSH audit overpayments identified and collected through annual DSH audits. We invited comments on these proposals. The following is a summary of the public comments we received and our responses.
However, as stated in the proposed rule, we acknowledge that even where State contracts with auditors require the auditor to quantify the actual or estimated financial impact of any findings, there are rare circumstances where the financial impact of an identified issue cannot be quantified. As commenters noted, we would allow the auditor to submit an estimated impact in these expectedly rare circumstances. We want to clarify that the reference to an “estimated range of financial impact”
The DSH audits are statutorily required under section 1923(j) of the Act, which places the requirement on the States to perform the audit. All States that make DSH payments must comply with the independent certified audit requirements as a condition of receipt of FFP in their DSH payments. We do not believe the statute contemplates applying more stringent audit standards only to some States. We believe this new requirement is important to ensuring that payments are being made properly, regardless of the potential amount of overpayment that could have occurred in a given State.
Additionally, section 1923(j) of the Act requires States, not CMS, to submit an independent certified audit. We therefore established in the 2008 DSH final rule the requirement for States to contract with an independent auditor to meet this requirement; CMS does not have authority to hire a vendor to perform all independent certified audits, and to do so would duplicate a requirement that Congress has placed on the States. We note that FFP is available in States' allowable administrative expenditures for their audit contracts.
Lastly, regarding the comment stating CMS lacked data supporting the assertion auditors could easily quantify their findings, we have heard from various auditors directly that they can provide more data but are not presently being requested by States to do so. This information about auditors' experiences is why we are confident it would be unlikely that an auditor would need to provide an estimated financial impact amount in more than rare circumstances. Therefore, we are finalizing this required data element with the expectation that States will contract with auditors to take the appropriate steps to quantify findings for which some States' auditors have been including data caveats.
If the State plan methodology allows for redistribution that would result in changes to DSH audit data elements, we would expect the State to reflect the redistribution-related changes to applicable data elements in relevant CMS-64s and in revised data element reports. The impacts calculated under the new data element should not duplicate any other data elements in content, but should be consistent with and may be calculated based on other required data elements, as determined by the auditor. Additionally, we are finalizing at § 447.299(c)(21) language that specifically states the amount for the new data element should include amounts “not otherwise reflected in data elements described in this paragraph (c).”
There is no exception to this data requirement, or independent certified audit deadlines in general, when a State or auditor knows a change or addendum to the audit report is forthcoming. Existing regulations at § 433.320(c) contemplate scenarios where an overpayment amount is subsequently adjusted and provides the requirements and procedures for how to address those changes. In addition, frequently asked question (FAQ) #17 of the “Additional Information on the DSH Reporting and Audit Requirements” guidance
States retain considerable flexibility to design a payment adjustment methodology for DSH hospitals. If States choose to pay up to a hospital's UCC (the full extent of its hospital-specific DSH limit, subject to available funds within the State's Federal Medicaid DSH allotment), in some instances, the DSH audit may identify hospitals that were not paid up to their uncompensated care cost as provided in the State's approved DSH payment methodology. If the State plan outlines an interim payment methodology, the State may be able to make additional DSH payments or redistribute amounts from hospitals that received excess DSH payments (over their hospital-specific DSH limits) to these hospitals with remaining uncompensated care costs through a reconciliation process to address the “underpayment.”
We are finalizing the provisions to § 447.299 as proposed, with minor phrasing changes to § 447.299(c)(6), (c)(10) introductory text, (c)(10)(ii), and (c)(16) replacing “pursuant to” with “in accordance with” to align with current style guidelines.
We proposed to revise the definition of the “independent certified audit” to include the requirement for auditors to quantify the financial impact of each audit finding, or caveat, on an individual basis, for each hospital, per the reporting requirement in proposed § 447.299(c)(21) and under section 1923(j)(1)(B) of the Act. We explained that updating this definition is consistent with the goals of the updates to § 447.299(c)(21) to facilitate our determination of whether the State made DSH payments that exceeded any hospital's specific DSH limit in the Medicaid SPRY under audit. Specifically, as discussed in item five of the proposed provisions, we proposed to add to annual DSH reporting required under § 447.299(c) a requirement for States to report the financial impact of audit findings identified by the State's independent auditor. To align with this proposal, we proposed to revise the definition of the independent certified
We solicited comments related to the proposed change. We did not receive public comments on this provision and are finalizing as proposed these changes to § 455.301.
We proposed to revise § 455.304(d)(1), (3), (4), and (6) to reflect the proposed revisions to the independent certified data elements at § 447.299(c)(6), (7), (10), and (16). The revisions would reflect the statutory changes made by section 203 of the CAA 2021, updating the independent certified audit verifications as they relate to the treatment of Medicaid eligibles and third-party payers. We reviewed the other independent certified audit verifications in § 455.304(d) to determine if additional updates were necessary to account for the changes made by section 203 of the CAA 2021. However, we noted our belief that these are the only verifications requiring updates because these are the verifications that consider the treatment of Medicaid eligibles for purposes of the independent certified audit. Therefore, it is only necessary to revise § 455.304(d)(1), (3), (4), and (6) to account for the statutory changes made by section 203 of the CAA 2021.
Accordingly, we proposed to revise § 455.304(d)(1), which specifies that auditors should verify that each qualifying hospital that receives DSH payments, associated with the provisions of services to “Medicaid eligible individuals and individuals with no source of third-party coverage,” is allowed to retain that payment. We proposed this change because for most hospitals, for SPRYs beginning on or after October 1, 2021, the methodology by which these DSH payments are calculated and paid will be reflective of Medicaid costs and payments associated with Medicaid eligible individuals for whom Medicaid is the primary payer. Therefore, we proposed to revise § 455.304(d)(1) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that the DSH payments are associated with inpatient hospital and outpatient hospital services provided to Medicaid individuals as determined in accordance with § 447.295(d).
We also proposed to revise § 455.304(d)(3), which specifies that “[o]nly uncompensated care costs of furnishing inpatient and outpatient hospital services to Medicaid eligible individuals” and the uninsured should be included in the calculation of the hospital-specific DSH limit. We proposed this change because for most hospitals, for SPRYs beginning on or after October 1, 2021, only costs incurred on behalf of Medicaid eligible individuals for whom Medicaid is the primary payer will be counted in the calculation of the hospital-specific DSH limit. Therefore, we proposed to revise § 455.304(d)(3) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that uncompensated care costs for furnishing inpatient hospital and outpatient hospital services to Medicaid individuals is determined in accordance with § 447.295(d). We also proposed to revise § 455.304(d)(3) to streamline this provision by removing a redundant reference to section 1923(g)(1)(A) of the Act.
Further, we proposed to revise § 455.304(d)(4), which specifies that Medicaid payments, including FFS, supplemental/enhanced, and Medicaid managed care payments made to a hospital “for furnishing inpatient hospital and outpatient hospital services to Medicaid eligible individuals,” should be included in the calculation of the hospital-specific DSH limit. We proposed this change because for most hospitals, for SPRYs beginning on or after October 1, 2021, only costs incurred on behalf of Medicaid eligible individuals for whom Medicaid is the primary payer will be counted in the calculation of the hospital-specific DSH limit. Therefore, we proposed to revise § 455.304(d)(4) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that the DSH payments associated with inpatient hospital and outpatient hospital services provided to Medicaid individuals as determined in accordance with § 447.295(d) are included in the calculation of hospital-specific DSH limit.
Finally, we proposed to revise § 455.304(d)(6), which requires that auditors include a description of the methodology for calculating each hospital's hospital-specific DSH limit, including “how the State defines incurred inpatient hospital and outpatient hospital costs for furnishing inpatient hospital and outpatient hospital services to Medicaid eligible individuals.” We proposed this change because for most hospitals, for SPRYs beginning on or after October 1, 2021, the methodology by which these DSH payments were calculated and paid will be reflective of Medicaid costs and payments associated with Medicaid eligible individuals for whom Medicaid is the primary payer. Therefore, we proposed to revise § 455.304(d)(6) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that inpatient hospital and outpatient hospital services provided to Medicaid individuals are determined in accordance with § 447.295(d).
We proposed that these and other CAA 2021-related proposals, noted in the respective sections, be applicable to fiscal years beginning on or after October 1, 2021, to align with the effective date of the CAA 2021.
We solicited comments on these proposed changes. We did not receive public comments on the proposed changes to § 455.304 and are finalizing them as proposed, with minor phrasing changes to § 455.304(d)(1), (3), (4), and (6) replacing “pursuant to” with “in accordance with” to align with current style guidelines.
We have not published CHIP allotments in the
We solicited comments related to this proposed change and received public comments. The following is a summary of the public comments we received and our responses.
We also note that the new regulation commits us to publishing final CHIP allotments on
The amendments made by section division CC, title II, section 203 of the CAA 2021, require that the changes to the calculations of Medicaid hospital-specific DSH limits take effect on October 1, 2021, and apply to payment adjustments made under section 1923 of the Act during fiscal years beginning on or after that date. Accordingly, the CAA 2021 provisions finalized in this rule at §§ 447.295(b) and (d), 447.299(c)(6), (7), (10), and (16), and 455.304(d)(1), (3), (4), and (6) will apply retroactively as set out in statute.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
To fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the PRA requires that we solicit comment on the following issues:
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Our effort to minimize the information collection burden on the affected public, including the use of automated collection techniques.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
In the February 24, 2023 (88 FR 11865) proposed rule, we solicited public comment on each of the aforementioned issues for the sections of the rule that contained information collection requirements. We did not receive any such comments.
To derive average costs, we used data from the U.S. Bureau of Labor Statistics' (BLS) May 2022 National Occupational Employment and Wage Estimates for all salary estimates (
As indicated, we are adjusting our employee hourly wage estimates by a factor of 100 percent. This is necessarily a rough adjustment, both because fringe benefits and overhead costs vary significantly from employer to employer, and because methods of estimating these costs vary widely from study to study. Nonetheless, we believe
The following ICR section sets out requirements and burden that are subject to OMB review and approval under the authority of the PRA.
The provisions that are not discussed in this section (IV) of the preamble are not associated with any information collection requirements. In that regard they are not subject to the requirements of the PRA. For this rule's full burden implications, please see the Regulatory Impact Analysis under section V. of this preamble.
The following changes will be submitted to OMB for approval under control number 0938-0746 (CMS-R-266).
Under § 447.299 as finalized in this rule, States will be required to provide an additional data element as part of their annual DSH audit reports. This additional element will require a State auditor to quantify the financial impact of any audit finding not captured within any other data element under § 447.299(c), which may affect whether each hospital has received DSH payments for which it is eligible within its hospital-specific DSH limit.
The additional data element requires auditors to indicate the financial impact of all findings rather than indicating that the financial impact of any finding is unknown.
The burden consists of the time it would take each State to quantify any audit finding identified during the independent certified audit required under section 1923(j)(2) of the Act. As we rarely receive audits with no identified findings, we assume (for the purposes of this estimate) that all applicable States will complete this work. The territories have been excluded from this requirement since they do not receive a DSH allotment under section 1923(f) of the Act. We have also excluded Massachusetts from the total burden estimate, as it currently does not complete DSH audits because its entire DSH allotment amount is diverted for payments under a section 1115 demonstration project.
We believe the additional burden associated with the new data element would be 2 hours given that auditors are already engaged in a focused review of available documentation to quantify the aggregate amounts that comprise each of the existing data elements required under § 447.299(c). We estimate that the 2 hours would consist of 1 hour at $80.36/hr for a financial specialist to add the additional data to the report and 1 hour at $135.76/hr for management and professional staff to review the additional data in the report. In aggregate we estimate an annual burden of 100 hours (50 States × 2 hr/response × 1 response/year) at a cost of $10,806 (50 States × [(1 hr × $135.76/hr) + (1 hr × $80.36/hr)]).
If the auditor is unable to determine the actual financial impact amount of an audit finding, the auditor would be required to provide a statement of the estimated financial impact for each audit finding identified in the independent certified audit. For the purposes of this burden estimate, we assume that every State may have some quantifiable findings and some unquantifiable findings. As such, we anticipate that a State auditor would have to spend an additional 1 hour at $83.40/hr quantifying the financial impact of DSH findings that are classified as unknown. In aggregate, we estimate an annual burden of 50 hours (50 States × 1 hr) at a cost of $4,170 (50 hr × $83.40/hr).
When taking into account the 50 percent Federal administrative match, we estimate an annual cost of $7,488 ([$10,806 + $4,170] × 0.5).
Table 2 summarizes the burden for the provisions.
In this rule our proposed burden estimates have been adjusted by using BLS' most recent wage estimates (May 2022 vs May 2021) and by accounting for 50 respondents, instead of the 51 respondents that was accounted for in our proposed rule to remove Massachusetts as it currently does not complete DSH audits because its entire DSH allotment amount is diverted for payments under a section 1115 demonstration project.
This final rule will codify in Federal regulations the statutory requirements of division CC, title II, section 203 of the CAA 2021, which relate to Medicaid shortfall and third-party payments. These changes are necessary to align with Federal statute and to provide States and hospitals an understanding of how qualifying hospitals' DSH payments may be impacted by the CAA 2021. These changes are necessary in order to reflect the statutory changes to section 1923(g) of the Act to update the methodology for calculating the Medicaid shortfall portion of the hospital-specific DSH limit to only include costs and payments for hospital services furnished to beneficiaries for whom Medicaid is the primary payer, and to codify the exception for certain hospitals that are in the 97th percentile or above of all hospitals with respect to the number of Medicare SSI days or percentage of Medicare SSI days to total inpatient days.
Since we were required to engage in rulemaking to codify the statutory
We have examined the impacts of this final rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). The Executive Order 14094, entitled “Modernizing Regulatory Review” (hereinafter, the Modernizing E.O.), amends section 3(f)(1) of Executive Order 12866 (Regulatory Planning and Review). The amended section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) having an annual effect on the economy of $200 million or more in any 1 year (adjusted every 3 years by the Administrator of OMB's Office of Information and Regulatory Affairs (OIRA) for changes in gross domestic product), or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or tribal governments or communities; (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise legal or policy issues for which centralized review would meaningfully further the President's priorities or the principles set forth in this Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case.
A regulatory impact analysis (RIA) must be prepared for major rules with significant regulatory action/s and/or with significant effects as per section 3(f)(1) ($200 million or more in any 1 year). Based on our estimates using a “no action” baseline, OIRA has determined that this rulemaking is “significant” under section 3(f)(1) and meets the criteria set forth in 5 U.S.C. 804(2) under subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act)”.
Some amendments made by the CAA 2021 required us to propose regulatory updates, but there are statutory changes that are effective regardless of our actions. Typically, under OMB Circular A-4, our analysis for instances such as this would utilize a “pre-statute” baseline. However, we are unable to assess the impact of the statutory changes in a meaningful way due to the potential for variation in the Medicare cost reporting and claims data, as well as supplemental security income eligibility data, that inform the new standard. Additionally, the ranking created by those data whereby an unknown 3 percent of entities would have the higher of two options, further inhibited our ability to estimate the impact in a meaningful way. Therefore, for the assessment of incremental economic impact that appears below, we compare the effects of this rulemaking against a “no action” baseline. This baseline incorporates the statutory changes made by the CAA 2021 that do not require rulemaking to be in effect, such as the change to the definition of Medicaid shortfall. This will be the focus of our analysis. Similarly, for the non-CAA 2021-required or related DSH provisions in the proposed rule, our analytical baseline is a direct comparison between the proposed provisions and not finalizing this rule.
Because the impact of our rule depends on downstream impacts of changes created in statute unaffected by this rulemaking, such as the change to only include Medicaid costs and payments in the hospital-specific DSH limit when Medicaid is the primary payer, calculating financial cost and transfer impacts specific to this rulemaking presents challenges which we will discuss further in those sections.
The policies in this final rule will enhance Federal oversight of the Medicaid DSH program, improve the accuracy of DSH audit overpayments identified through and collected as a result of annual DSH audits, and provide clarity on certain existing Medicaid DSH policies. This final rule will codify certain existing CMS policies, including that the date of discovery of DSH overpayments is determined according to the earliest of the date on which the State submits its annual DSH independent certified audit to CMS, or any of the dates specified in § 433.316(c). Further, this final rule will provide additional transparency regarding the DSH allotment reductions calculated under the DHRM, specifically regarding the BNF, by updating the applicable regulations to specify that amounts diverted under a section 1115 demonstration approved after July 31, 2009, or approved as of that date but for a purpose other than coverage expansion, are subject to reduction under the HMF and HUF. Further, these regulatory updates will provide transparency regarding how the amounts diverted under a section 1115 demonstration are to be determined and applied in the DHRM. In addition, this final rule includes specific details related to the development and application of the data set used to determine the qualification for the exception for 97th percentile hospitals. This final rule details how hospital-specific DSH limits should be calculated under section 1923(g) of the Act and reported in the independent certified audit, as specified in § 447.299(c). Further, the additional data reporting element in § 447.299(c)(21) will strengthen CMS oversight of the Medicaid DSH program and better ensure compliance with the hospital-specific DSH limit under section 1923(g) of the Act. Finally, this final rule will
Under § 447.299, this final rule will require States to determine the hospital-specific DSH limit for hospitals meeting the exception for 97th percentile hospitals. For these hospitals, the hospital-specific DSH limit is calculated using the higher value of either the hospital-specific DSH limit amount determined for the hospital under section 1923(g)(1)(A) of the Act as amended by section 203 of the CAA 2021 or the amount determined for the hospital under section 1923(g)(1)(A) of the Act as in effect on January 1, 2020. This amount will be captured under the reporting element at § 447.299(c)(10). While we proposed that CMS will produce the source of data used to identify hospitals qualifying to meet the exception for 97th percentile hospitals, this will require a State auditor to calculate two separate hospital-specific DSH limits and determine the higher value thereof for hospitals meeting this exception. Given this exception applies to a limited number of hospitals and that the identity of these hospitals and the information required to determine their hospital-specific DSH limit amounts under both calculations would be based on readily available information, we believe the additional burden associated with determining the hospital-specific DSH limit for hospitals qualifying under this exception to be minimal.
To estimate the overall burden of adding this requirement for the calculation of the hospital-specific DSH limit for hospitals meeting the exception for 97th percentile hospitals, we considered the number of annual independent certified audits received by CMS in addition to the limited number of hospitals that will qualify under this exception. In order for States to assess which hospitals meet the exception, we estimate that it would take approximately 2 hours, consisting of: 1 hour at $80.36/hr for a financial specialist to prepare the aforementioned spreadsheet report, and 1 hour at $135.76/hr for management and professional staff to review the report. In the aggregate, we estimate an ongoing annual burden of 100 hours (50 States × 2 hr/response × 1 response/year) at a cost of $10,806 (50 States × [(1 hr $135.76/hr) + (1 hr × $80.36/hr)] or $216.12 per State [$10,806/50 States]). Additionally, we anticipate that a State auditor would have to spend an additional hour verifying the hospital-specific DSH limits for hospitals meeting the exception for 97th percentile hospitals. The estimated annual burden would be 1 hour per State (50 States × 1 hour) 50 hours × $83.40/hr for auditors to complete the audit at a cost of $4,170 per year (50 States × 1 hour × $83.40 per hour). The total cost of this provision of the proposed rule would be $14,976 ($10,806 + $4,170) and 150 hours, or $299.52 and 3 hours per State.
As described in section IV.C.1. of this final rule, the additional DSH audit data reporting element creates a burden of 150 hours at a cost of $14,976, with an average of 3 hours ($299.52 hr/50 States) at a cost of $299.52 per State Medicaid agency per year ($14,976/50 States).
We do not estimate there will be a cost impact related to the DHRM BNF proposal. This proposal merely provides clarification regarding how amounts are determined, and the impact of the policy itself was accounted for the in the 2019 final rule that finalized the factor amounts. Therefore, the only costs would be associated with review of this rule, which are accounted for in part 4 of this section.
Similarly, there will be no cost impact related to the proposals to publish DSH and CHIP allotments through an alternative means. Under current CMS practice, States are already informed of their allotment amounts prior to the
Although the policies discussed in this final rule would affect the calculation of the hospital-specific DSH limit established at section 1923(g) of the Act and some providers may see a decrease in their historic hospital-specific DSH limits, these effects are a direct result of statutory changes rather than the proposals in this rule. In addition, some providers may see an increase in their historic hospital-specific DSH limits, again as a result of the changes made by statute. Further, lower hospital-specific DSH limits for some hospitals may result in States choosing to distribute higher DSH payments to hospitals that historically had not been paid at higher levels. We note that this rule would not affect the considerable flexibility afforded States in setting DSH State plan payment methodologies to the extent that these methodologies are consistent with section 1923(c) of the Act and all other applicable statutes and regulations. Therefore, we cannot predict whether and how States would exercise their flexibility in setting DSH payments to account for changes in historic hospital-specific DSH limits and how this would affect individual providers or specific groups of providers. We invited comments from State agencies and hospitals providing information or data for the calculation of these estimates. We did not receive any data that would aid in calculating a more accurate estimate. We made minor adjustments to correct the total number of States whose DSH programs would be impacted by the provisions of this rule and to reflect the latest BLS wage data, but otherwise and generally we are finalizing the estimates as proposed.
If regulations impose administrative costs on private entities, such as the time needed to read and interpret this final rule, we estimate the cost associated with regulatory review. Due to the uncertainty involved with accurately quantifying the number of entities that will review the rule, we assume that States, Medicaid DSH hospitals, and independent auditors will likely be reviewers of this final rule. We acknowledge that this assumption may understate or overstate the costs of reviewing this rule. It is possible that not all Medicaid DSH hospitals will choose to review individually, or that State agencies will have multiple people in different roles review. Nevertheless, we thought the entities directly or indirectly impacted by this rule served as the best basis. As such, we will assume half of the approximately 2,700 Medicaid DSH hospitals will review the rule, in addition to at least one person from each of the 50 State agencies impacted by this rule, and at least one person from the independent DSH auditor for each of the 50 States, resulting in 1,450 total entities. We welcomed comments on the approach in estimating the number of entities which will review this final rule.
Although this rule has a number of provisions, they more or less all relate to DSH, and we assume entities with DSH equities will review the entire rule. Using the 2022 wage information from the BLS,
In developing this final rule, the following alternatives were considered:
Despite the effort involved in developing a proposed rule, we still consider whether the effort of finalizing the proposed rule, in general, is worthwhile and necessary additional effort to meet policy goals. As with the proposed rule, we concluded that, due to the changes to regulatory language necessitated by the legislation, rulemaking was necessary. Accordingly, once the decision to issue a final rule was reached, the additional DSH-related provisions were discrete decisions and not part of the calculus of whether to issue a final rule.
As discussed in section II.A.3. of this final rule, we performed additional work to consider where data anomalies that exist in the status of available cost reports should impact our proposal to use the total inpatient days from the cost report with the most updated cost report status, for the most recent cost reporting period, available on the day that the data are pulled, in determining the hospitals that meet the 97th percentile threshold. However, through our additional review we determined our proposal was most in line with the statutory requirement to use the most recent cost reporting period and that anomalies in the status of the most recent reports did not create issues that would affect our decision.
CMS considered various alternatives for making the determination regarding how far back the time period of a hospital's cost report could relate in order to be included in the data set for the calculation of hospitals that meet the 97th percentile threshold exception. We proposed not including any cost report ending earlier than September 30, 3 years prior to the March 31 snapshot date for compiling the data set. For the proposed rule, we considered a shorter cutoff, such as excluding any cost report ending earlier than September 30, 2 years prior to the March 31 snapshot date. However, we were concerned that establishing too short of a cutoff could exclude a material number of hospitals due to either delays in hospitals filing cost reports or delays in the transmitting and processing of cost report files into HCRIS. At that time, we also considered a longer cutoff than 3 years, but we were concerned this could create too much variability in the cost reporting periods and would also capture in the data set hospitals that are currently inactive or terminated. While the proposed rule was out for comment, we continued assessing whether expanding to 4 years would be a net positive for DSH hospitals. However, our additional testing did not demonstrate a benefit in expanding to 4 years and therefore we did not amend the proposal in this final rule. We believe the 3-year cutoff is equitable in ensuring there is general consistency in the cost reporting periods used, conforms with the use of “most recent cost reporting period,” and is practical for implementation purposes.
As required by OMB Circular A-4 (available at
The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. The great majority of hospitals and most other health care providers and suppliers are small entities, either by being nonprofit organizations or by meeting the Small Business Administration definition of a small business (having revenues of less than $9.0 million to $47 million in any 1 year). Individuals and States are not included in the definition of a small entity. As its measure of significant economic impact on a substantial number of small entities, HHS uses a change in revenue of more than 3 to 5 percent. We do not believe that this threshold will be reached by the provisions in this final rule.
This rule establishes requirements that are solely the responsibility of State Medicaid agencies, which are not small entities. Therefore, the Secretary certifies this final rule would not, if issued, have a significant economic impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. This rule will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
Executive Order 13132 establishes certain requirements that an agency must meet when it issues a proposed rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has federalism implications. This rule does not impose substantial direct costs on State or local governments, preempt State law, or otherwise have federalism implications.
The policies in this final rule will enable CMS to implement statutory changes, strengthen financial oversight, clarify existing financial management policies, and reduce unnecessary administrative burden.
The analysis in this section V., together with the rest of this preamble, provides a regulatory impact analysis. In accordance with the provisions of Executive Order 12866, this final rule was reviewed by the Office of Management and Budget.
Chiquita Brooks-LaSure, Administrator of the Centers for Medicare & Medicaid Services, approved this document on February 15, 2024.
Administrative practice and procedure, Child support, Claims, Grant programs—health, Medicaid, Reporting and recordkeeping requirements.
Accounting, Administrative practice and procedure, Drugs, Grant programs—health, Health facilities, Health professions, Medicaid, Reporting and recordkeeping requirements, Rural areas.
Fraud, Grant programs—health, Health facilities, Health professions, Investigations, Medicaid, Reporting and recordkeeping requirements.
Administrative practice and procedure, Grant programs—health, Health insurance, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 42 CFR chapter IV as set forth below:
42 U.S.C. 1302.
The addition reads as follows:
(f)
(1) The date that the State submits the independent certified audit report required under § 455.304(b) of this chapter to CMS.
(2) Any of the dates specified in paragraph (c)(1), (2), or (3) of this section.
42 U.S.C. 1302 and 1396r-8.
(e) * * *
(12)
(i) For States in which the State's DSH allotment was included in the budget neutrality calculation for a coverage expansion that was approved under section 1115 as of July 31, 2009, determining the amount of the State's DSH allotment included in the budget neutrality calculation for coverage expansion. This amount is not subject to reductions under the HMF and HUF calculations. DSH allotment amounts included in the budget neutrality calculation for purposes other than coverage expansion for a demonstration project under section 1115 that was approved as of July 31, 2009, are subject to reduction as specified in paragraphs (e)(12)(ii) through (iv) of this section. For States whose DSH allotment was included in the budget neutrality calculation for a demonstration project that was approved under section 1115 after July 31, 2009, whether for coverage expansion or otherwise, the entire DSH allotment amount that was included in the budget neutrality calculation is subject to reduction as specified in paragraphs (e)(12)(ii) through (iv) of this section.
(ii) Determining the amount of the State's DSH allotment included in the budget neutrality calculation subject to reduction. The amount to be assigned reductions under paragraphs (e)(12)(iii) and (iv) of this section is the total of each State's DSH allotment diverted under an approved 1115 demonstration during the period that aligns with the associated State plan rate year DSH audit utilized in the DSH allotment reductions.
(b) * * *
(i) CMS will identify the 97th percentile hospitals, for each Medicaid
(ii) CMS will publish lists identifying each 97th percentile hospital annually in advance of October 1 of each year. CMS will revise a published list only to correct a mathematical or other similar technical error that is identified to CMS during the one-year period beginning on the date the list is published.
(d)
(2) For each State's first Medicaid State plan rate year beginning on or after October 1, 2021, and thereafter, subject to paragraph (d)(3) of this section, only costs incurred in providing inpatient hospital and outpatient hospital services to Medicaid individuals when Medicaid is the primary payer for such services, and revenues received with respect to those services, and costs incurred in providing inpatient hospital and outpatient hospital services, and revenues received with respect to those services, for which a determination has been made in accordance with paragraph (c) of this section that the services were furnished to individuals who have no source of third-party coverage for the specific inpatient hospital or outpatient hospital service are included when calculating the costs and revenues for Medicaid individuals and individuals who have no health insurance or other source of third-party coverage for purposes of section 1923(g)(1) of the Act.
(3) Effective for each State's first Medicaid State plan rate year beginning on or after October 1, 2021, and thereafter, the hospital-specific DSH limit for a 97th percentile hospital defined in paragraph (b) of this section is the higher of the values from the calculations described in paragraphs (d)(1) and (2) of this section.
The revisions and additions read as follows:
(c) * * *
(6)
(7)
(10)
(ii) Must capture the total burden on the hospital of treating Medicaid patients as determined in accordance with § 447.295(d), not including payment by Medicaid. Thus, costs must be determined in the aggregate and not by estimating the cost of individual patients. For example, if a hospital treats two Medicaid patients at a cost of $2,000 and receives a $500 payment from a third party for each individual, the total cost to the hospital for purposes of this section is $1,000, regardless of whether the third-party payment received for one patient exceeds the cost of providing the service to that individual.
(16)
(21)
(f) DSH payments found in the independent certified audit process under part 455, subpart D, of this chapter to exceed hospital-specific cost limits are provider overpayments which must be returned to the Federal Government in accordance with the requirements in part 433, subpart F, or redistributed by the State to other qualifying hospitals, if redistribution is provided for under the approved State plan. Overpayment amounts returned to the Federal Government must be separately reported on the Form CMS-64 as a decreasing adjustment which corresponds to the fiscal year DSH allotment and Medicaid State plan rate year of the original DSH expenditure claimed by the State.
(g) As applicable, States must report any overpayment redistribution amounts on the Form CMS-64 within 2 years from the date of discovery that a hospital-specific limit has been exceeded, as determined under § 433.316(f) of this chapter in accordance with a redistribution methodology in the approved Medicaid State plan. The State must report redistribution of DSH overpayments on the Form CMS-64 as separately identifiable decreasing adjustments reflecting the return of the overpayment as specified in paragraph (f) of this section and increasing adjustments representing the redistribution by the State. Both adjustments must correspond to the fiscal year DSH allotment and Medicaid State plan rate year of the related original DSH expenditure claimed by the State.
42 U.S.C. 1302.
(d) * * *
(1)
(3)
(4)
(6)
42 U.S.C. 1302.
(h)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Summary presentation of an interim and final rule.
This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) in this Federal Acquisition Circular (FAC) 2024-03. A companion document, the
For effective dates see the separate documents, which follow.
The FAC, including the SECG, is available at
The analyst whose name appears in the table below in relation to the FAR case. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755 or
Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these FAR rules, refer to the specific item numbers and subjects set forth in the documents following these summaries. FAC 2024-03 amends the FAR as follows:
This interim rule amends the Federal Acquisition Regulation to implement the Governmentwide certification requirement for service-disabled veteran-owned small business (SDVOSB) concerns seeking sole-source and set-aside awards under the SDVOSB Program. Beginning January 1, 2024, SDVOSB concerns must either be certified by the Small Business Administration (SBA), or have both submitted an application for certification to SBA on or before December 31, 2023, and represented that it is an SDVOSB in the System for Award Management (SAM), in order to be eligible for sole-source or set-aside awards under the SDVOSB Program. This rule also requires that an SDVOSB concern update its status in the System for Award Management no later than two days after the date of a final determination that the concern does not meet the requirements of the status the concern claims to hold, and provides new SDVOSB protest and appeal procedures. The interim rule will not have a significant economic impact on a substantial number of small entities because the rule simply implements the requirements of SBA's regulations and does not impose any additional compliance burden on entities.
This final rule amends the FAR to adjust the thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements as determined by the United States Trade Representative, according to predetermined formulae under the agreements.
Federal Acquisition Circular (FAC) 2024-03 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator of National Aeronautics and Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2024-03 is effective February 23, 2024.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Interim rule.
DoD, GSA, and NASA are issuing an interim rule amending the Federal Acquisition Regulation (FAR) to implement the final rules published by the Small Business Administration to implement sections of the National Defense Authorization Acts for Fiscal Years 2021 and 2022.
Submit comments in response to FAC 2024-03, FAR Case
For clarification of content, contact Ms. Carrie Moore, Procurement Analyst, at 571-300-5917, or by email at
This interim rule revises the FAR to implement regulatory changes made by the Small Business Administration (SBA) in its final rule to implement section 862 of the William M. (Mac) Thornberry National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021 (Pub. L. 116-283; 15 U.S.C. 657f). Section 862 transfers the verification of small business concerns owned and controlled by veterans or service-disabled veterans from the Department of Veterans Affairs (VA) to SBA as of January 1, 2023, and creates a certification requirement for service-disabled veteran-owned small business (SDVOSB) concerns seeking sole-source and set-aside awards under the SDVOSB Program across the Federal Government. Section 862 provides for a one-year grace period after the transfer date for SDVOSBs to submit an application for certification to SBA. During the one-year grace period, SDVOSBs may continue to self-represent their socioeconomic status in the System for Award Management (SAM).
To implement section 862, SBA published a final rule on November 29, 2022, at 87 FR 73400. SBA also issued a final rule on July 3, 2023, at 88 FR 42592, to correct its final rule published on November 29, 2022, to modify the effect of a protest decision. In its final rule published on November 29, 2022, SBA removed SDVOSB requirements from 13 CFR part 125 and established 13 CFR part 128 to implement the requirement for SDVOSB concerns to be certified by SBA in order to be eligible for set-aside or sole-source awards under the SDVOSB Program. SBA's final rule also specifies that concerns that submit a complete application for certification to SBA on or before December 31, 2023, and represent their SDVOSB status in SAM are eligible for awards made under the SDVOSB Program until SBA makes a final eligibility determination. Beginning January 1, 2024, SDVOSBs that are not certified by SBA, and do not have a pending application for certification, will not be eligible to receive sole-source or set-aside awards under the SDVOSB Program but may continue to self-represent their status for awards outside of the SDVOSB Program.
When determining a concern's eligibility for a set-aside or sole-source award under the SDVOSB Program, contracting officers must review the concern's SAM record for its designation as an SDVOSB certified by SBA. If the concern's SAM record does not reflect an SDVOSB certification by SBA, contracting officers shall verify that the concern has represented that it is an SDVOSB concern and submitted an application for certification to SBA on or before December 31, 2023. Contracting officers will verify the concern's application status through SBA's Veteran Small Business Certification Program database. The need to check this database for pending applications is expected to diminish as SBA reviews and dispositions the applications received on or before the deadline. It is anticipated that the review of all such applications will be completed by the time this rule is finalized and, if they are, the requirement to check the SBA database for pending applications may be removed from the final rule.
As explained in SBA's final rule at 87 FR 73400, concerns verified by VA prior to the transfer date are considered to be certified by SBA during the time that remains in the concern's three-year term of eligibility. In addition, the SBA Administrator may extend a participant's eligibility period up to one year. Further, to facilitate the transition of those concerns already verified by the VA prior to January 1, 2023, that have an eligibility period that expires within the first year of the SDVOSB certification program, SBA will extend the eligibility of those concerns for a period of up to one year.
As indicated in SBA's final rule and prior to the transfer of the certification program to SBA, veteran-owned small businesses (VOSBs) and SDVOSBs had to be verified by the VA's Center for Verification and Evaluation. There was no Governmentwide SDVOSB certification program, and firms seeking to be awarded SDVOSB sole-source or set-aside contracts with Federal agencies other than the VA were only required to self-represent their status in SAM; therefore, this rule amends the FAR to implement this Governmentwide SDVOSB certification program.
This interim rule also partially implements section 863 of the NDAA for FY 2022 (Pub. L. 117-81; 15 U.S.C. 634(i)), as implemented by SBA in its final rule published on April 27, 2023, at 88 FR 26164. Section 863 requires that a small business concern update its status in SAM no later than two days after the date of a final determination that the concern does not meet the requirements of the status the concern claims to hold. Section 863 also requires that SBA update such a concern's status in SAM if the concern fails to do so. This interim rule implements this requirement for SDVOSB concerns. The implementation of section 863 for the other socioeconomic programs in FAR part 19 will be addressed in a separate case.
The changes to the FAR and the rationale are summarized as follows:
This rule amends the following provisions and clauses at FAR: 52.212-3, Offeror Representations and Certifications—Commercial Products and Commercial Services; 52.212-5, Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Products and Commercial Services; 52.213-4, Terms and Conditions—Simplified Acquisitions (Other Than Commercial Products and Commercial Services); 52.219-1, Small Business Program Representations; 52.219-8, Utilization of Small Business Concerns; 52.219-27, Notice of Service-Disabled Veteran-Owned Small Business Set-Aside; 52.219-28, Post-Award Small Business Program Rerepresentation; and 52.244-6, Subcontracts for Commercial Products and Commercial Services. These provisions and clauses continue to apply to acquisitions at or below the SAT and to acquisitions for commercial products, including COTS items, and commercial services.
This rule applies section 862 of the NDAA for FY 2021 and section 863 of the NDAA for FY 2022, as implemented by this interim rule, to contracts at or below the SAT and/or for commercial products (including COTS items) or commercial services.
The statute at 41 U.S.C. 1905 governs the applicability of laws to acquisitions at or below the SAT. Section 1905 generally limits the applicability of new laws when agencies are making acquisitions at or below the SAT, but provides that such acquisitions will not be exempt from a provision of law under certain circumstances, including when the Federal Acquisition Regulation (FAR) Council makes a written determination and finding that it would not be in the best interest of the Federal Government to exempt contracts and subcontracts in amounts not greater than the SAT from the provision of law. The FAR Council has made a determination to apply this statute to acquisitions at or below the SAT.
The statute at 41 U.S.C. 1906 governs the applicability of laws to contracts for the acquisition of commercial products and commercial services, and is intended to limit the applicability of laws to contracts for the acquisition of commercial products and commercial services. Section 1906 provides that if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial contracts, the provision of law will apply to contracts for the acquisition of commercial products and commercial services.
The statute at 41 U.S.C. 1907 states that acquisitions of COTS items will be exempt from certain provisions of law unless the Administrator for Federal Procurement Policy makes a written determination and finds that it would not be in the best interest of the Federal Government to exempt contracts for the procurement of COTS items. The FAR Council has made a determination to apply this statute to acquisitions for commercial products and commercial services. The Administrator for Federal Procurement Policy has made a determination to apply this statute to acquisitions for COTS items.
This interim rule is expected to impact Government and contractor operations.
As a result of this interim rule, effective January 1, 2024, contracting officers will be required to check SAM to verify that a concern is designated as an SDVOSB certified by SBA for sole-source or set-aside awards under the SDVOSB Program. If the concern is not designated in SAM as a certified SDVOSB, the contracting officer will be required to check SBA's Veteran Small Business Certification Program database to determine if the concern submitted an application for certification to SBA
A small business concern that pursues a sole-source or set-aside award under the SDVOSB program will be required to be certified by SBA effective January 1, 2024, or the concern must have both submitted a complete application for certification to SBA on or before December 31, 2023, and represented its status as an SDVOSB concern in SAM. A small business concern that submits a complete application for certification to SBA on or before December 31, 2023, may continue to represent its status as an SDVOSB in SAM until SBA makes its final eligibility determination. This interim rule will not impact current participants in the VA's VIP Verification Program as the requirements for the new SBA certification program are nearly identical to those of the VA. The only change that will impact small businesses is the certification requirement for SDVOSB concerns. As indicated in SBA's final rule, SBA does not anticipate the requirement for SBA certification to significantly impact small business concerns seeking SDVOSB certification. To minimize the potential impact on small businesses, SDVOSB concerns previously certified by the VA are reflected as certified in the SBA Veteran Small Business Certification Program database during the time that remains in the firm's three-year term of eligibility. To facilitate the transition of those firms already verified by the VA prior to the transfer date that have an eligibility period that expires in the first year of the Program, SBA extended the eligibility of those verified firms for an additional period of one year. The one-year grace period allows concerns that are not yet certified by the SBA to continue to represent their status as an SDVOSB in SAM while preparing their applications for SDVOSB certification. Furthermore, SBA did not change the documentation requirements for certification. Additionally, firms that represent their status in SAM likely have the documentation necessary for certification as that documentation is necessary to be able to represent their status as an SDVOSB in SAM. Therefore, concerns will only have to enter the information already in hand to apply to be included in SBA's Veteran Small Business Certification Program database.
The public cost associated with obtaining SDVOSB certification is accounted for under SBA's final rule implementing the certification requirements (87 FR 73400). SBA's final rule advises concerns that, effective January 1, 2024, only a certified SDVOSB or a concern that has submitted a complete application for certification to SBA on or before December 31, 2023, may seek a set-aside or sole-source award under the SDVOSB Program. SBA estimates it will take a concern approximately one hour to complete the application process.
Small business concerns will also be required to update SAM within two days of an SBA determination of ineligibility. Small business concerns are already required to update representations in SAM at least annually and ensure that representations are current, accurate, and complete. SBA's final rule published on April 27, 2023, at 88 FR 26164, advised small business concerns of the requirement to remove their designation from SAM within two days of an SBA decision regarding ineligibility.
Given SBA's notice to small business concerns, the cost to the public associated with the FAR implementation of SBA's final rules is de minimis and is limited to the cost of regulatory familiarization.
Executive Orders (E.O.s) 12866 (as amended by E.O 14094) and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.
Pursuant to the Congressional Review Act, DoD, GSA, and NASA will send this rule to each House of the Congress and to the Comptroller General of the United States. The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget has determined that this rule does not meet the definition in 5 U.S.C. 804(2).
DoD, GSA, and NASA do not expect this interim rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612, because this rule simply implements the requirements of SBA's regulations and does not impose any additional compliance burden on applicable small business entities. However, an Initial Regulatory Flexibility Analysis (IRFA) has been performed and is summarized as follows:
DoD, GSA, and NASA are amending the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the Small Business Administration (SBA) in its final rule published on November 29, 2022, at 87 FR 73400, and a correction published on July 3, 2023, at 88 FR 42592, to implement section 862 of the William M. (Mac) Thornberry National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021 (Pub. L. 116-283; 15 U.S.C. 657f); and April 27, 2023, at 88 FR 26164 to implement section 863 of the NDAA for FY 2022 (Pub. L. 117-81; 15 U.S.C. 634).
The objective of this rule is to implement SBA's Governmentwide certification program for SDVOSB concerns, update SDVOSB protest procedures, and to require an SDVOSB concern determined ineligible by SBA to update its status in the System for Award Management (SAM) within two days of the eligibility determination. Promulgation of the FAR is authorized by 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113. The legal basis for this rule is as stated in the preceding paragraph.
This interim rule impacts small business concerns that seek a sole-source or set-aside award under the SDVOSB Program. Effective January 1, 2024, an SDVOSB concern must be certified as an SDVOSB concern by SBA, or have both represented that it is an SDVOSB concern in SAM and submitted a complete application for certification to SBA on or before December 31, 2023, in order to be eligible for these types of awards. SBA has minimized the impact on SDVOSB concerns by accepting verifications of eligibility already determined by the Department of Veterans Affairs (VA). SBA granted a one-year extension on certification for VA verified firms and by providing firms that represent their status in SAM a one-year grace period to apply for certification. In addition, this rule impacts SDVOSB concerns that SBA determines are not eligible for SDVOSB certification, as these concerns will be ineligible for set-aside and sole-source awards under the SDVOSB Program. A concern determined ineligible for SDVOSB certification, however, may continue to represent its SDVOSB status in SAM and be eligible for set-aside and sole-source awards outside of the SDVOSB Program.
The cost to concerns seeking SDVOSB certification should be de minimis because the eligibility documentation requirements currently exist under the VA's verification program. In addition, the initial application, program examination, and recertification requirement will remain the same under
According to SAM, there are 32,284 concerns registered as SDVOSBs. Of the 32,284 SDVOSB concerns registered in SAM, 10,635 are already verified SDVOSBs in VA's verification program, which leaves 21,649 SDVOSB concerns that represent their socioeconomic status in SAM. Of the 21,649 that represent their socioeconomic status as an SDVOSB in SAM, 181 are veteran-owned small business concerns that are SDVOSB certified in the VA's certification database. Therefore, there are 21,468 SDVOSBs that represent their status in SAM that are not currently in the VA's verification program and that may submit an application for certification to SBA. However, the number of SDVOSB concerns that will submit applications for certification is unknown as is the number of potential new SDVOSB entrants; therefore, the number of small business entities impacted by this rule may be greater than or less than the 21,468 SDVOSBs that currently represent their status in SAM.
Effective January 1, 2024, this interim rule requires small business concerns that submit an offer for a set-aside or sole-source requirement under the SDVOSB Program to either be certified by SBA, or have both submitted an application for certification to SBA on or before December 31, 2023, and represented their SDVOSB status in SAM. Concerns found ineligible to be a certified SDVOSB by SBA must update their status in SAM within two days of the eligibility determination. SDVOSB protests will be decided by OHA instead of SBA's Director of Government Contracting.
SBA implemented a certification and information collection platform that replicates the VA's Center for Verification and Evaluation currently approved information collection and recordkeeping requirements under OMB Control Number 2900-0675.
The interim rule does not duplicate, overlap, or conflict with any other Federal rules.
There are no known significant alternative approaches to the interim rule which would accomplish the stated objectives of the applicable statutes and which would minimize any significant economic impact of this interim rule on small entities, as the economic impact is not anticipated to be significant.
The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2022-009), in correspondence.
This interim rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501-3521). These changes to the FAR do not impose additional information collection requirements to the associated paperwork burdens previously approved under Office of Management and Budget (OMB) Control Numbers 2900-0675, VETBIZ Vendor Information Pages Verification Program; 9000-0136, Commercial Acquisitions; FAR Sections Affected: 52.212-3(b)(2); 9000-0034, Examination of Records by Comptroller General and Contract Audit: FAR Section(s) Affected: 52.212-5(d), 52.214-26, 52.215-2; and 9000-0163, Small Business Size Rerepresentation; FAR Sections Affected: 19.301 and 52.219-28.
A determination has been made under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator of the National Aeronautics and Space Administration that urgent and compelling reasons exist to promulgate this interim rule effective immediately without prior opportunity for public comment, see 41 U.S.C. 1707(d). This action is necessary because section 862 of the William M. (Mac) Thornberry National Defense Authorization Act for FY 2021 (Pub. L. 116-283; 15 U.S.C. 657f): (1) transferred the responsibility for verifying the status of small business concerns owned and controlled by veterans or service-disabled veterans from the Department of Veterans Affairs (VA) to the Small Business Administration (SBA) as of January 1, 2023; and (2) established a Governmentwide certification requirement for service-disabled veteran-owned small businesses (SDVOSB) concerns seeking sole-source and set-aside contract awards under the SDVOSB Program beginning on January 1, 2024. The transfer of this responsibility also requires that all SDVOSB protests now be decided by a judge.
SBA published a final rule on November 29, 2022, and a correction to its final rule on July 3, 2023, to implement section 862 and codify these requirements in their agency regulations at title 13 of the Code of Federal Regulations. SBA's rule was published for public comment and SBA considered those public comments in the drafting of their final rule. As of January 1, 2023, SBA is processing applications for SDVOSB certification in accordance with their regulations.
Beginning January 1, 2024, contracting officers can only award set-aside or sole-source contracts to SDVOSB concerns that have been certified by SBA, or have both submitted a complete application for certification to SBA on or before December 31, 2023, and represented their SDVOSB status in SAM. For these types of awards, contracting officers will no longer be able to accept an offeror's representation in SAM that they are an SDVOSB concern. Additionally, all SDVOSB protests will be handled in accordance with SBA's updated regulations, which require SBA's Office of Hearings and Appeals (OHA) to decide SDVOSB protests.
Current guidance in the Federal Acquisition Regulation (FAR) regarding SDVOSB set-aside and sole-source requirements and SDVOSB protest procedures is not aligned with the current statute and SBA's regulations. The FAR permits contracting officers to accept an offeror's self-representation that they are an SDVOSB concern, which conflicts with section 862 and SBA's regulations, which impose the Governmentwide SDVOSB certification requirement on offerors and contract awards beginning January 1, 2024.
FAR guidance on SDVOSB protests and appeals is also not aligned with section 862 and SBA's regulations. Currently, the FAR advises contracting officers and offerors that SDVOSB status protests should be submitted to and will be decided by SBA's Director, Office of Government Contracting. This guidance conflicts with the SBA regulations that require OHA to now hear and decide these protests. The FAR also provides processes and procedures to offerors and contracting officers on SDVOSB status protest appeals; however, this guidance also conflicts with SBA's revised regulations, which do not have a process to appeal an SDVOSB status protest decision, as OHA's decisions are
Rulemaking is necessary to align the FAR with the statute and SBA's regulations; however, the rulemaking process cannot facilitate a proposed and final rule by the statutory deadline of January 1, 2024. To properly implement the statute, the rulemaking must be sequential. The SBA regulations must be implemented first, followed by FAR regulatory changes that reflect the requirements of SBA.
The consequences of missing the statutory deadline would be significant. If the FAR is not updated to implement the statute and SBA's regulations, individual agencies will implement the new requirements on their own. Having each agency implement its own interpretation of section 862 and SBA's SDVOSB regulations may result in an inconsistent application of these requirements across the Federal Government. Inconsistency in the application of these regulations will:
(1) Put agencies at a high risk for protests of SDVOSB awards if an award is made to an SDVOSB that is no longer eligible for an award under SBA regulations, but appears eligible under FAR or agency guidance;
(2) Negate, minimize, or put at risk SDVOSB status protest rights of interested parties through the dissemination of inaccurate or incomplete information;
(3) Cause undue confusion and frustration for small businesses attempting to win an SDVOSB award, protest the SDVOSB status of an awardee, or appeal a protest decision of an awardee's SDVOSB status due to inconsistent application of the statute and regulations across the Federal Government;
(4) Harm small businesses eligible for an SDVOSB set-aside or sole-source award through an increase in improper awards to entities no longer eligible for such awards, as well as the loss of opportunity, income, and experience that comes with a Federal contract;
(5) Jeopardize the ability of the Government to meet its mission needs and, for DoD, impact the ability to meet the needs of the warfighter to deter war and ensure the security of the United States, because an increase in granted protests of an awardee's SDVOSB status will delay contract awards due to the need for the Government to resolicit and re-evaluate offers; and
(6) Negatively impact agency small business goals due to improper awards and inconsistent application of statute, SBA regulations, FAR regulations, and agency guidance.
Issuing an interim rule will allow the Government to issue, in a timely manner, a single set of policies and procedures that accurately and thoroughly implement the SDVOSB certification requirement that takes effect on January 1, 2024, which will ensure consistent implementation across the entirety of the Federal Government. An interim rule will ensure the Government and small businesses avoid the negative impacts discussed above, while providing the public an opportunity to review and comment on the rule during its implementation.
The public reviewed and commented on SBA's implementation of section 862 and SBA considered those comments in finalizing their rule. This rule simply implements SBA's requirements, so there is little risk that the interim rule will impose a requirement on the public that they have not already had the opportunity to comment on. However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), the Department of Defense, General Services Administration, and National Aeronautics and Space Administration will consider public comments received in response to this interim rule in the formation of the final rule.
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 6, 9, 18, 19, and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113.
The revisions and additions read as follows:
A word or a term, defined in this section, has the same meaning throughout this chapter (the Federal Acquisition Regulation (FAR)) unless the context in which the word or term is used clearly requires a different meaning or another FAR part, subpart, or section provides a different definition for the particular part or portion of the part. If a word or term that is defined in this section is defined differently in another part, subpart, or section of this chapter, the definition in this section includes a cross-reference to the other definitions and that part, subpart, or section applies to the word or term when used in that part, subpart, or section.
(1)(i) Not less than 51 percent of which is owned and controlled by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and
(ii) The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a service-disabled veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran; or
(2) A small business concern eligible under the SDVOSB Program in accordance with 13 CFR part 128 (see subpart 19.14).
(3)
(1) Effective January 1, 2024, is designated in the System for Award Management (SAM) as certified by the Small Business Administration (SBA) in accordance with 13 CFR 128.300; or
(2) Has represented that it is an SDVOSB concern in SAM and submitted a complete application for certification to SBA on or before December 31, 2023.
(1) Not less than 51 percent of which is owned and controlled by one or more veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more veterans; and
The revision reads as follows:
(d) * * *
(2)
(a) * * *
(4) Set-asides for SDVOSB concerns eligible under the SDVOSB Program (
The addition reads as follows:
(a)
The revisions and additions read as follows:
(a)
(b)
(2) SBA's protest regulations are found in 13 CFR 128.500 and 13 CFR part 134.
(d) * * *
(1) OHA will consider protests challenging the SDVOSB status or the ownership and control of a concern if—
(i) For status protests, the protester presents evidence supporting the contention that the owner(s) cannot provide documentation from the VA to show that they meet the definition of “service-disabled veteran” or “service-disabled veteran with a permanent and severe disability” as set forth in 13 CFR 128.102; or
(iv) For joint venture protests, the protester presents evidence that the managing SDVOSB joint venture partner does not meet the requirements at 13 CFR 128.402.
(e) * * * (1) An interested party (except contracting officers should see paragraph (f)(1) of this section) shall submit its protest to the contracting officer—
(iii) To be received by close of business on the fifth business day after notification by the contracting officer of the intended awardee for an order that is set aside for SDVOSBs under a multiple-award contract that was not totally or partially set aside or reserved for SDVOSB concerns. This paragraph (e)(1)(iii) does not apply to an order issued under a Federal Supply Schedule (FSS) contract; or
(iv) To be received by the close of the fifth business day after notification by the contracting officer of the intended awardee for a blanket purchase agreement that is set aside for SDVOSBs under a multiple-award contract that was not totally or partially set aside or reserved for SDVOSB concerns. This paragraph (e)(1)(iv) does not apply to a blanket purchase agreement issued under a FSS contract.
(2) Any protest received after the designated time limits is untimely, except—
(i) The VA or SBA may file an SDVOSB status protest at any time; and
(ii) The contracting officer, SBA, or VA may file an SDVOSB status protest at any time after the apparent awardee has been identified or after bid opening, whichever applies.
(f)
(g)
(h)
(i) Withhold award of the contract until OHA determines the status of the protested concern; or
(ii) Award the contract after receipt of the protest but before OHA issues its decision if the contracting officer determines in writing that an award must be made to protect the public interest. The contracting officer shall notify OHA and SBA D/GC in writing of the determination and a copy shall be included in the contract file.
(2) OHA will determine the merits of the status protest.
(3) OHA does not have a standard timeline for issuing decisions.
(i)
(1) If the contracting officer has withheld contract award and OHA has determined that the protested concern is an eligible SDVOSB or dismissed all protests against the protested concern, then the contracting officer may award the contract to the protested concern.
(2) If the contracting officer has withheld contract award, and OHA has sustained the protest and determined that the concern is not an SDVOSB, then the contracting officer shall not award the contract to the protested concern.
(3) If the contracting officer has made a written determination in accordance with paragraph (h)(1)(ii) of this section, the contract has been awarded, and the OHA decision to sustain the protest is received after award—
(i) The contracting officer shall terminate the contract, unless the contracting officer has made a written determination that termination is not in the best interests of the Government. However, the contracting officer shall not exercise any options or award further task or delivery orders;
(ii) The contracting officer shall update FPDS to reflect the final OHA decision; and
(iii) The concern must remove its designation in the System for Award Management (SAM) as an SDVOSB concern within 2 days of the OHA decision. SBA will update the concern's SDVOSB status in SAM if the concern fails to do so. The concern shall not submit an offer as a SDVOSB concern or an SDVOSB concern eligible under the SDVOSB Program, until the concern is designated as an SDVOSB by SBA in the SBA Veteran Small Business Certification Program database at
(4) A concern found to be ineligible may not submit future offers as an SDVOSB concern until the concern is designated as an SDVOSB by SBA in the SBA Veteran Small Business Certification Program database at
Any contractor receiving a contract with a value greater than the simplified acquisition threshold must agree in the contract that small business, veteran-owned small business (VOSB), service-disabled veteran-owned small business (SDVOSB), HUBZone small business, small disadvantaged business (SDB), and women-owned small business (WOSB) concerns will have the maximum practicable opportunity to participate in contract performance consistent with its efficient performance. It is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with small business, VOSB concerns, SDVOSB concerns, HUBZone small business concerns, SDB concerns, and WOSB concerns.
(a) Status as an SDVOSB concern is determined by SBA in accordance with 13 CFR part 128; also see 19.307.
(b) For an SDVOSB concern that seeks an SDVOSB set-aside or sole-source contract, the contracting officer shall verify that the offeror—
(1) Effective January 1, 2024, is designated in the System for Award Management (SAM) as an SDVOSB concern certified by SBA; or
(2) Has represented that it is an SDVOSB concern in SAM and submitted an application for certification to SBA on or before December 31, 2023. Pending applications for certification are in the SBA Veteran Small Business Certification Program database at
(c) If there is a decision issued by SBA as a result of a current eligibility examination finding that the concern did not qualify as an SDVOSB concern eligible under the SDVOSB Program or SBA denies a concern's application for SDVOSB certification, the concern must update its SDVOSB status in SAM within 2 days of SBA's final decision to reflect that the concern is not an eligible SDVOSB. SBA will update the concern's SDVOSB status in SAM within 2 days of the concern's failure to make the update.
(d) Effective January 1, 2024, a joint venture may be considered an SDVOSB concern eligible under the SDVOSB Program if—
(1) The joint venture qualifies as small under 19.301-1(a)(2)(i);
(2) The managing SDVOSB joint venture partner—
(i) Is designated in SAM as an SDVOSB concern certified by SBA; or
(ii) Has represented that it is an SDVOSB concern in SAM and submitted an application for certification to SBA on or before December 31, 2023. Pending applications for certification are in the SBA Veteran Small Business Certification database at
(3) The joint venture complies with the requirements of 13 CFR 128.402.
The revisions and addition read as follows:
(b) A contracting officer may restrict competition to SDVOSB concerns eligible under the SDVOSB Program if there is a reasonable expectation based on market research that—
(1) Two or more SDVOSB concerns eligible under the SDVOSB Program will submit offers; and
(2) Award will be made at a fair market price.
(c) Effective January 1, 2024, the contracting officer shall—
(1) Verify that offers received are eligible for consideration for award by checking if the offeror—
(i) Is designated in SAM as an SDVOSB concern certified by SBA; or
(ii) Has represented that it is an SDVOSB concern in SAM and submitted an application for certification to SBA on or before December 31, 2023. Pending applications for certification are in the SBA Veteran Small Business Certification database at
(2) Proceed with the offer evaluation, if the offeror meets the criteria in paragraph (c)(1)(i) or (ii) of this section; or
(3) Remove the offeror from consideration, if the offeror does not meet the criteria in paragraph (c)(1)(i) or (ii) of this section, as the offeror is not eligible for award.
(d) If the contracting officer receives only one acceptable offer from an SDVOSB concern eligible under the SDVOSB Program in response to a set-aside, the contracting officer should make an award to that concern. If the contracting officer receives no acceptable offers from SDVOSB concerns eligible under the SDVOSB Program, the SDVOSB set-aside shall be withdrawn and the requirement, if still valid, set aside for small business concerns, as appropriate (see 19.203).
The revisions and addition read as follows:
(b) Effective January 1, 2024, a contracting officer shall only award a sole-source contract to a concern that—
(1) Is designated in SAM as an SDVOSB concern certified by SBA; or
(2) Has represented that it is an SDVOSB concern in SAM and submitted an application for certification to SBA on or before December 31, 2023. Pending applications for certification are in the SBA Veteran Small Business Certification Program database at
(c) The SBA has the right to appeal the contracting officer's decision not to make an SDVOSB sole-source award.
(a) The contracting officer shall insert the clause at 52.219-27, Notice of Set-Aside for, or Sole-Source Award to, Service-Disabled Veteran-Owned Small Business (SDVOSB) Concerns Eligible Under the SDVOSB Program, in solicitations and contracts for acquisitions that are set aside or awarded on a sole-source basis to, service-disabled veteran-owned small business concerns under 19.1405 and 19.1406. * * *
The revisions and additions read as follows:
(a) * * *
(1)(i) Not less than 51 percent of which is owned and controlled by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and
(ii) The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a service-disabled veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran; or
(2) A small business concern eligible under the SDVOSB Program in accordance with 13 CFR part 128 (see subpart 19.14).
(3)
(1) Effective January 1, 2024, is designated in the System for Award Management (SAM) as certified by the Small Business Administration (SBA) in accordance with 13 CFR 128.300; or
(2) Has represented that it is an SDVOSB concern in SAM and submitted a complete application for certification to SBA on or before December 31, 2023.
(c) * * *
(3)
(4)
(8) * * *
Complete paragraphs (c)(9) and (10) only if this solicitation is expected to exceed the simplified acquisition threshold.
The revisions read as follows:
(b) * * *
(25) 52.219-27, Notice of Set-Aside for, or Sole-Source Award to, Service-Disabled Veteran-Owned Small Business (SDVOSB) Concerns Eligible Under the SDVOSB Program (FEB 2024) (15 U.S.C. 657f).
The revision reads as follows:
The revisions and additions read as follows:
(a) * * *
(1)(i) Not less than 51 percent of which is owned and controlled by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and
(ii) The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a service-disabled veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran or;
(2) A small business concern eligible under the SDVOSB Program in accordance with 13 CFR part 128 (see subpart 19.14).
(3)
(1) Effective January 1, 2024, is designated in the System for Award Management (SAM) as certified by the Small Business Administration (SBA) in accordance with 13 CFR 128.300; or
(2) Has represented that it is an SDVOSB concern in SAM and submitted a complete application for certification to SBA on or before December 31, 2023.
(c) * * *
(6)
(7)
(8)
(9)
The revisions and additions read as follows:
(a) * * *
(1)(i) Not less than 51 percent of which is owned and controlled by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and
(ii) The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a service-disabled veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran; or
(2) A small business concern eligible under the SDVOSB Program in accordance with 13 CFR part 128 (see subpart 19.14).
(3)
(1) Effective January 1, 2024, is designated in the System for Award Management (SAM) as certified by the Small Business Administration (SBA) in accordance with 13 CFR 128.300; or
(2) Has represented that it is an SDVOSB concern in SAM and submitted a complete application for certification to SBA on or before December 31, 2023.
(c) * * *
(2) A joint venture qualifies as a HUBZone small business concern if it complies with the requirements in 13 CFR 126.616(a) through (c).
As prescribed in 19.1408, insert the following clause:
(a)
(1)(i) Not less than 51 percent of which is owned and controlled by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and
(ii) The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a service-disabled veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran; or
(2) A small business concern eligible under the SDVOSB Program in accordance with 13 CFR part 128 (see subpart 19.14).
(3)
(1) Effective January 1, 2024, is designated in the System for Award Management (SAM) as certified by the Small Business Administration (SBA) in accordance with 13 CFR 128.300; or
(2) Has represented that it is an SDVOSB concern in SAM and submitted a complete application for certification to SBA on or before December 31, 2023.
(b)
(1) Contracts that have been set aside for, or awarded on a sole-source basis to, SDVOSB concerns eligible under the SDVOSB Program;
(2) Part or parts of a multiple-award contract that have been set aside for SDVOSB concerns eligible under the SDVOSB Program;
(3) Orders set aside for SDVOSB concerns eligible under the SDVOSB Program, under multiple-award contracts as described in 8.405-5 and 16.505(b)(2)(i)(F); and
(4) Orders issued directly to SDVOSB concerns eligible under the SDVOSB Program, under multiple-award contracts as described in 19.504(c)(1)(ii).
(c)
(i) Designated in SAM as an SDVOSB concern certified by SBA; or
(ii) That have represented their status as an SDVOSB in SAM and submitted a complete application for certification to SBA on or before December 31, 2023.
(2) Offers received from concerns that do not meet the criteria of paragraph (c)(1)(i) or (ii) of this clause, shall not be considered.
(d) A joint venture may be considered an SDVOSB concern if the managing partner of the joint venture complies with the criteria defined in paragraph (a) of this clause and 13 CFR 128.402.
(e) In a joint venture that complies with paragraph (d) of this clause, the SDVOSB party or parties to the joint venture shall perform at least 40 percent of the work performed by the joint venture. Work performed by the SDVOSB party or parties to the joint venture must be more than administrative functions.
The revision and addition read as follows:
(h) * * *
(8)
The revision reads as follows:
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to incorporate revised thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative.
Mr. Michael O. Jackson, Procurement Analyst, at 202-208-4949 or by email at
Approximately every two years, the trade agreements thresholds for the World Trade Organization Government Procurement Agreement (WTO GPA) and the free trade agreements (FTAs) are adjusted according to predetermined formulae under the agreements. These thresholds are effective as of January 1, 2024. On December 8, 2023 (88 FR 85718), the United States Trade Representative (USTR) published new procurement thresholds.
The United States Trade Representative has specified the following new thresholds:
This final rule implements the new thresholds in FAR subpart 25.4, Trade Agreements, and other sections in the FAR that include trade agreements thresholds (
A group of FTAs have been at the $92,319 threshold and are increasing to $102,280. This group includes the Australia, Chile, Colombia, and Singapore FTAs, CAFTA-DR, and Mexico in the USMCA. The 2024 threshold change places these FTAs above the $100,000 Korea FTA threshold, instead of beneath it. These new thresholds do not work with the pre-existing framework in the FAR. The Korea FTA at $100,000 and above previously fit alongside the Australia FTA/CAFTA-DR group at $92,319 and above, but this will no longer be so because there can no longer be any values that are less than the Korea FTA threshold, but greater than the Australia FTA/CAFTA-DR group threshold. Three primary changes were made to fix the framework.
1. At FAR 25.1101, the prescription for Alternate II of FAR 52.225-3, Buy American—Free Trade Agreements—Israeli Trade Act, is changed so that it no longer applies to the Australia FTA/CAFTA-DR group, but instead only to the Israeli Trade Act. There are no changes to the Alternate II language.
2. At FAR 25.1101, the prescription for Alternate III of FAR 52.225-3 is changed so that it only applies to the Korea FTA and Israeli Trade Act. Application of the Australia FTA/CAFTA-DR group moves into the base clause of FAR 52.225-3.
3. A change to the Alternate III language was needed due to the change in the prescription. DoD, GSA, and NASA deleted the definition of “Bahraini, Moroccan, Omani, Panamanian, or Peruvian end product,” and in its place added a definition of “Korean end product.” DoD, GSA, and NASA also added a corresponding change in the prescription and Alternate III of FAR 52.225-4, Buy American—Free Trade Agreements—Israeli Trade Act Certificate.
In addition, changes are required to the provisions at FAR 52.204-8, Annual Representations and Certifications, and 52.212-3, Offeror Representations and Certifications—Commercial Products and Commercial Services, and to the clause at FAR 52.222-19, Child Labor—Cooperation with Authorities and Remedies, with conforming changes to the clause dates in FAR 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Products and Commercial Services, and FAR 52.213-4, Terms and Conditions—Simplified Acquisitions (Other Than Commercial Products and Commercial Services).
The statute that applies to the publication of the FAR is 41 U.S.C. 1707. Subsection (a)(1) of 41 U.S.C. 1707 requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it only adjusts the thresholds according to predetermined formulae to adjust for changes in economic conditions, thus maintaining the status quo, without significant effect beyond the internal operating procedures of the Government and without a significant cost or administrative impact on contractors or offerors.
This final rule will adjust the thresholds for application of the WTO GPA and FTAs, as determined by the USTR. For acquisitions covered by the WTO GPA or FTAs, the USTR has waived the Buy American statute and other discriminatory provisions for eligible products. As a result, eligible products and services will receive equal consideration with domestic offers if the estimated value of the contract meets or exceeds the new thresholds set by the USTR. This rule is not expected to significantly impact domestic offerors or offerors covered by the WTO GPA or a FTA because the threshold adjustments made under this rule simply accommodate changes in economic conditions, while maintaining the status quo.
This rule amends the FAR to make minor revisions in the thresholds for application of the WTO GPA and the FTAs. The revisions do not add any new burdens or, except for the thresholds changes themselves, impact applicability of clauses and provisions at or below the simplified acquisition threshold, to acquisitions of commercial products (including commercially available off-the-shelf items), or to acquisitions of commercial services.
Executive Orders (E.O.s) 12866 (as amended by E.O. 14094) and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.
Pursuant to the Congressional Review Act, DoD, GSA, and NASA will send this rule to each House of the Congress and to the Comptroller General of the United States. The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget has determined that this rule does not meet the definition in 5 U.S.C. 804(2).
Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section III of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.
This rule affects the information collection requirements in the provisions at FAR 52.225-2, 52.225-4, 52.225-6, and 52.225-10, and the clauses at FAR 52.225-9, 52.225-11, 52.225-21, and 52.225-23, currently approved under OMB Control Number 9000-0024, entitled “Buy American Act, Trade Agreements, and Duty-Free Entry,” in accordance with the Paperwork Reduction Act (44 U.S.C. 3501-3521). The impact, however, is negligible, because the threshold changes are in line with inflation and
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 22, 25, and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113.
(b) * * *
The revision reads as follows:
(g) * * *
(3)
(g)(1)(i)(B) The terms “Korean end product”, “commercially available off-the-shelf (COTS) item,” “critical component,” “domestic end product,” “end product,” “foreign end product,” “Free Trade Agreement country,” “Free Trade Agreement country end product,” “Israeli end product,” and “United States” are defined in the clause of this solicitation entitled “Buy American—Free Trade Agreements—Israeli Trade Act.”
(g)(1)(ii) The Offeror certifies that the following supplies are Korean end products or Israeli end products as defined in the clause of this solicitation entitled “Buy American—Free Trade Agreements—Israeli Trade Act”:
Korean End Products or Israeli End Products:
[
The revision reads as follows:
The revision reads as follows:
c. Removing from paragraph (a)(3) “$183,000” and adding “$174,000” in its place.
The revision reads as follows:
(1) Is wholly the growth, product, or manufacture of Korea (Republic of); or
(2) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Korea (Republic of) into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to the article, provided that the value of those incidental services does not exceed that of the article itself.
(c)
(b) The Offeror certifies that the following supplies are Korean end products or Israeli end products as defined in the clause of this solicitation entitled “Buy American—Free Trade Agreements—Israeli Trade Act”:
Korean End Products or Israeli End Products:
[List as necessary]