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Rural Housing Service, U.S. Department of Agriculture (USDA).
Final rule; announcement of enforcement date.
On October 25, 2024, Rural Development's Multifamily Housing (MFH or Agency), an Agency of the United States Department of Agriculture (USDA), published a final rule. The final rule amended the current regulation for the Off-Farm Labor Housing (Off-FLH) program to clarify the grant agreement term and adopted the period of performance as required by Federal award information requirements. The changes clarified for applicants and grantees their obligations and requirements as Federal award recipients. The effective date set out in the preamble of the final rule was October 25, 2024 (the date the final rule published in the
The enforcement date for the amendments to 7 CFR 3560.5668 in the final rule published at 89 FR 85035 on October 25, 2024, is November 25, 2024.
Christa Lindsey, Finance and Loan Analyst, United States Department of Agriculture Rural Housing Service, Multifamily Housing Production and Preservation Division; telephone number: (352) 538-5747; email address:
On October 25, 2024, RHS published a final rule amending 7 CFR 3560.5668. RHS incorrectly established the effective date as October 25, 2024. The intention was for the final rule to become effective on November 25, 2024. Because the amendments in the rule were incorporated into the CFR on October 25, 2024, RHS is announcing in this document that enforcement of, and compliance with, the amended regulations is November 25, 2024.
Office of Postsecondary Education, Department of Education.
Interim final rule; request for comments.
The Department of Education (Department) issues this interim final rule (IFR) to amend the regulations governing income contingent repayment (ICR) plans available to Federal student loan borrowers to make certain that the Department meets its statutory obligation under the Higher Education Act of 1965, as amended, (HEA) to offer borrowers access to an income contingent repayment plan. The scope of this rule is narrow. It just revises the end date for most borrowers to enroll in ICR or Pay as You Earn plans from July 1, 2024, to July 1, 2027. This time-limited change to eligibility restrictions that went into effect on July 1, 2024, will allow the Department to meet its statutory obligations while it undertakes the necessary administrative changes to make its repayment plans that would otherwise be available for borrowers compliant with the terms of an injunction from the U.S. Court of Appeals for the Eighth Circuit (Eighth Circuit).
For more information regarding submission of comments, please see
A summary of the rule is available at
For further information contact Tamy Abernathy, U.S. Department of Education, Office of Postsecondary Education, 400 Maryland Avenue SW, 5th Floor, Washington, DC 20202. Telephone: (202) 245-4595. 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.
The Secretary is exercising the authority under section 482(c) of the HEA to designate the regulatory changes to 34 CFR part 685 included in this document for early implementation effective on December 16, 2024, for the reasons set forth in the
The following tips are meant to help you prepare your comments and provide a basis for the Department to respond to issues raised in your comments in the final regulations:
• Be concise but support your claims.
• Explain your views as clearly as possible and avoid using profanity.
• Refer to specific sections and subsections of the regulations throughout your comments, particularly in any headings that are used to organize your submission.
• Explain why you agree or disagree with the regulatory text and support these reasons with data-driven evidence, including the depth and breadth of your personal or professional experiences.
• Where you disagree with the regulatory text, suggest alternatives, including regulatory language, and your rationale for the alternative suggestion.
• Do not include personally identifiable information (PII) such as Social Security numbers or loan account numbers for yourself or for others in your submission. Should you include any PII in your comment, such information may be posted publicly.
• Do not include any information that directly identifies or could identify other individuals or that permits readers to identify other individuals. Your comment may not be posted publicly if it includes PII about other individuals.
In instances where individual submissions are bundled together (submitted as a single document or packaged together), the Department will post all the substantive comments included in the submissions along with the total comment count for that document or package to
The Department may, at its discretion, decide not to post or to withdraw certain comments and other materials that are computer-generated. Comments containing the promotion of commercial services or products, and spam will be removed.
We may not address comments outside of the scope of this IFR. Generally, comments that are outside of the scope of this IFR are comments that do not discuss the content or impact of the rule or the Department's evidence or reasons for this IFR. For instance, the Department is not changing the terms of the Income Based Repayment (IBR) plan, so we would not respond to a comment exclusively about the terms of IBR because it is outside the scope of these regulations.
Comments that are submitted after the comment period closes will not be posted to
Comments containing personal threats will not be posted to
We invite you to assist us in complying with the specific requirements of Executive Orders 12866, 13563, and 14094 and their overall requirement of reducing regulatory burden that might result from these regulations. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities.
During and after the comment period, you may inspect public comments about this IFR by accessing
In this interim final rule, the Department uses “income contingent repayment plans” to refer to repayment plans promulgated by regulation pursuant to the statutory requirement to create an opportunity for borrowers to
Section 455(d)(1) of the HEA requires the Secretary of Education (Secretary) to offer Direct Loan borrowers a variety of student loan repayment plans. This includes an “income contingent repayment plan,” under which a borrower makes payments “based on the borrower's income” for “an extended period of time prescribed by the Secretary, not to exceed 25 years.”
On May 26, 2021, the Department announced its intent to consider changes to regulations on a range of topics, including income driven repayment (IDR) plans.
As noted in the IDR final rule's preamble and in response to public comments, the Department chose to limit future eligibility for PAYE and ICR because we believed the changes that the rule made to the 2015 REPAYE plan were such that virtually all borrowers who might otherwise have chosen ICR or PAYE would be better off under the updated REPAYE plan.
Since the publication of the IDR final rule, the SAVE plan has been challenged in Federal court actions.
In the IDR final rule, the Department explained that each of those SAVE plan provisions operated in a manner that was separate and independent from the others.
Following the Eighth Circuit's injunction pending appeal and ongoing litigation, the Department is not currently complying with the HEA requirement to provide all Direct Loan borrowers with a repayment option issued under the income contingent repayment authority. The Department has placed borrowers enrolled in the SAVE plan into forbearance and is not currently able to offer borrowers a version of the SAVE plan that reflects the terms of the 2015 REPAYE plan that was in place prior to the issuance of the IDR final rule and is now in effect due
While the Department works to implement a compliant version of the SAVE plan, the absence of such a plan, coupled with the regulatory limitations on new borrowers enrolling in ICR and PAYE established by the IDR final rule, have rendered the Department unable to meet its statutory obligation to offer all Direct Loan borrowers in repayment the ability to make payments on an income contingent repayment plan as required by the HEA.
The changes in this IFR therefore address the immediate issue of the Department's inability to offer plans under the income contingent repayment authority to all Direct Loan borrowers in repayment, by adjusting the restrictions in the IDR final rule that prevented borrowers from enrolling in the PAYE or ICR plans after July 1, 2024, unless they were already on that plan on that date (provisions affecting borrowers who consolidate a Parent PLUS loan do not currently have an enrollment limitation date on ICR). Moving this date from July 1, 2024, to July 1, 2027, allows the Department to comply with the HEA while we continue to build a version of the SAVE plan that complies with the Eighth Circuit's injunction pending appeal. This adjustment also allows time for the Department to implement further changes that may result from final court orders on the merits of the SAVE plan, and would accommodate, if necessary, the master calendar for any additional required rulemaking. Because these changes are time-limited, the long-term effect of this IFR after July 1, 2027, is the same as what the Department established in the IDR final rule.
The Department for good cause finds that conducting notice-and-comment rulemaking would be impracticable, as explained further below. Under the Administrative Procedure Act (APA), an agency is not required to conduct notice-and-comment rulemaking when the agency “for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”
The Department issues this IFR so that it can expeditiously provide affected borrowers with the option to make payments on an income contingent repayment plan. Providing such a plan is an HEA requirement that the Department is not currently meeting for the vast majority of borrowers. In particular, borrowers who are not currently enrolled on PAYE or ICR do not have access to any repayment plan created under the income contingent repayment authority on which they can make payments, as is their statutory right. Borrowers not enrolled in an income contingent repayment plan can only sign up for the SAVE plan. But the Department cannot bill borrowers on SAVE, and has therefore placed them all in forbearance, because we are still making the administrative changes necessary to offer a version of that plan that complies with the Eighth Circuit injunction.
Under section 492(b)(2) of the HEA, regulations governing rules under title IV of the HEA are generally subject to negotiated rulemaking, unless the Secretary determines that applying such a requirement with respect to given regulations is impracticable, unnecessary, or contrary to the public interest (within the meaning of section 553(b) of title 5, United States Code), and publishes the basis for such determination in the
Conducting negotiated and notice-and-comment rulemaking regarding availability of the ICR and PAYE plans would create an extended time-period during which the Secretary could not meet the statutory obligation to offer income contingent repayment to most borrowers. Accordingly, consistent with section 492(b)(2) of the HEA, the Secretary determines that applying the negotiated rulemaking requirement with respect to these regulations is impracticable within the meaning of 5 U.S.C. 553(b).
The Department undertook work over many months to prepare for the implementation of all provisions of the IDR final rule by July 2024. Although the regulations were issued in summer 2023 and some pieces were implemented beginning in July 2023, cases challenging the rule were filed in late March and early April 2024, with motions for emergency relief nearly concurrent with the complaints. Two district courts ruled on preliminary injunction motions on June 24, 2024, and from there the two cases have taken divergent paths through the district and appellate courts. These two different rulings just a few days prior to the rule's effective date meant it was not possible to reverse the many months of prior work immediately. The two circuit courts entered their own orders—one limiting the district court's injunction
This IFR allows the Department to comply as quickly as possible with the HEA requirement to offer an income contingent repayment plan. The Department is actively working to offer borrowers a version of the SAVE plan that complies with the Eighth Circuit injunction but anticipates that will not be completed until well into 2025. Providing such a plan requires making coding changes to major FSA systems related to loan repayment and working with all major student loan contractors. That involves a “change management process” that takes significant time to negotiate costs, test the new programming to confirm accuracy, and other necessary steps to make sure the Department does not violate any terms of the injunction. It is not until the first few steps of this process (drafting requirements, submitting change requests to servicers, receiving times and estimates and negotiating with servicers to complete the required work) are finished that the Department can accurately assess how long the rebuild will take. Once it became clear that this process would take the better part of a year, the Department needed to find a stopgap solution to meet its statutory obligations. As noted above, implementing these changes for a limited period also allows the Department to address any further alterations to income contingent repayment plans required by future court orders, while continuing to meet its HEA requirements. The long-term effect of these changes is the same as what was issued in the final IDR rules.
The following is a discussion of the regulations in this IFR.
However, the Department is concerned that current restrictions on REPAYE plus the current inability to offer a version of the SAVE plan that complies with the Eighth Circuit's injunction pending appeal leaves us unable to meet our HEA requirement to offer an income contingent repayment plan to Direct Loan borrowers in repayment. The Department does not have discretion to waive this requirement.
The Department is therefore changing the dates limiting eligibility for the ICR and PAYE plans so that we can comply with the HEA requirement to offer an income contingent repayment plan to borrowers as fast as possible through a time-limited adjustment. Absent these changes, the only income contingent repayment plan currently available to borrowers who are newly entering repayment or who did not remain in the ICR or PAYE plan is the SAVE plan. However, the Eighth Circuit's injunction pending appeal requires the Department to update and modify that plan to offer a version that is compliant with the court order. The Department is actively working to make such changes. However, we anticipate they will not be ready until well into 2025, as changes must be made to every major system that touches student loan repayment, including significant additional work by Department contractors, the speed of which the Department is often unable to fully control. Those changes must be negotiated through the change management process and include extensive development and testing. Altering the eligibility dates for the PAYE and ICR plans therefore is the
The Department views these changes to the eligibility dates as severable, as each could operate sensibly and independently if the other were struck down. Specifically, § 685.209(c)(4)(iv) relates only to borrower eligibility to repay under PAYE, while § 685.209(c)(5)(i)(B) relates only to borrower eligibility to repay under ICR.
The Department is making these changes time-limited to reflect that providing a compliant version of SAVE will eventually allow us to otherwise fulfill our obligations under the HEA to offer an income contingent repayment plan. We ultimately selected the end date of July 1, 2027, because we believe that date provides a sufficient window to implement any future court-ordered changes to SAVE. Although the Department hopes for a final decision on the merits of the SAVE plan by summer 2025, it is possible the cases could not be fully resolved until later, even extending as far as summer 2026 or beyond. The Department also wants to make sure that if any further implementation work is needed to comply with a final decision, that the Department has time to meet its HEA requirement to offer borrowers an income contingent repayment plan. Because the Department generally implements changes to the title IV programs on July 1, at the start of the new award year, we believe July 1, 2027, is the most reasonable date that makes certain we will not need to further adjust dates if the litigation is not resolved relatively quickly.
Though the Department's focus in this IFR is on meeting its statutory requirement to offer borrowers an income contingent repayment plan, we note that the timing of the early implementation of these changes is also critical for borrowers due to the expiration of temporary benefits to help ease the transition to repayment following the national pause on payments, interest, and collections. In particular, until September 2024 the Department had in effect an on-ramp period that assisted borrowers who were unable to make their payments or needed more time to access information to best determine the right repayment plan. The on-ramp required borrowers to make their payments, and interest continued to accrue. However, the policy prevented the worst consequences of missed, late, or partial payments, including negative credit reporting delinquent payments. Now that the on-ramp period has ended, borrowers who miss at least 90 days of payments will start seeing negative credit reporting as early as January 2025 and borrowers will start moving toward default. Making these time-limited changes now will allow borrowers to have the full set of repayment options required under the HEA as they begin to navigate this final stage of return to repayment.
The Department recognizes that granting access to PAYE and ICR for some additional time is contrary to the other policy goal stated in the IDR final rule of simplifying the set of repayment options for borrowers. However, we believe this step is reasonable in light of changed circumstances and legal developments that have occurred since the finalization of the rule that created those eligibility limitations. In particular, we enacted those limitations because borrowers would have access to the SAVE plan. But the Department is not currently able to offer a version of that plan that complies with the Eighth Circuit injunction. Therefore, the simplification goal of the IDR final rule is not currently achievable, and the Department is not otherwise meeting the HEA requirement to offer an income contingent repayment plan for borrowers who are not currently enrolled in ICR, PAYE, or REPAYE.
Finally, the Department notes that restoring access to PAYE and ICR is not inconsistent with the Eighth Circuit's injunction pending appeal that prevents the Department from providing loan forgiveness to borrowers on plans established under the income contingent repayment authority, nor with any other court order. The Eighth Circuit's injunction pending appeal affects the provision of forgiveness to borrowers on these plans, not the authority to offer them. The injunction, as the court noted, does not otherwise apply to borrowers on the PAYE and ICR plans and borrowers currently enrolled in those plans continue to make payments. The Department will continue to comply with any orders from any court preventing the offering of forgiveness on plans promulgated using the income contingent repayment authority.
Until borrowers receive final certainty about the pending cases, the necessary step taken by this IFR represents a stop-gap solution for the Department to carry out its responsibilities under the HEA. At the same time, it is critical to note that the Eighth Circuit's injunction against forgiveness, if continued long-term, would impose a significant limitation on the share of borrowers who would achieve their best financial outcomes through a restored PAYE or ICR plan. As noted above, borrowers seeking PSLF and other subsets of borrowers who would benefit from entering repayment at a reduced payment amount would derive the greatest benefit from PAYE and ICR.
Under Executive Order 12866, the Office of Management and Budget (OMB) must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866, as amended by Executive Order 14094, defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $200 million or more (adjusted every 3 years by the Administrator of the Office of Information and Regulatory Affairs (OIRA) at OMB for changes in gross domestic product), or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise legal or policy issues for which centralized review would meaningfully further the President's priorities, or the principles stated in the Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case.
This regulatory action is a significant regulatory action subject to review by OMB under section 3(f)(4) of Executive Order 12866, as amended by Executive Order 14094. The proposed annual net budget effect is not larger than $200 million, as a result this regulatory action is not significant under section 3(f)(1) of Executive Order 12866, as amended by Executive Order 14094. Notwithstanding this determination, we have assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action and have determined that the benefits will justify the costs.
We have also reviewed these regulations under Executive Order 13563, which supplements and
(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and considering—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” OIRA has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final regulations only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that in the Department's estimation best balance the size of the estimated transfer and qualitative benefits and costs. Based on the analysis that follows, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.
We have also determined that this regulatory action will not unduly interfere with State, local, territorial, and Tribal governments in the exercise of their governmental functions.
As required by OMB Circular A-4, we compare the final regulations to the current regulations. In this regulatory impact analysis, we discuss the need for regulatory action and summarize key provisions, potential costs and benefits, net budget impacts, and the regulatory alternatives we considered.
Elsewhere in this section under
Pursuant to the Congressional Review Act (5 U.S.C. 801
These regulations address an urgent challenge that prevents the Department from currently complying with requirements in section 455(d)(1)(D) of the HEA to offer an income contingent repayment plan to Direct Loan borrowers. This is a result of restrictions on the ability of borrowers not currently enrolled in PAYE or ICR to participate in those plans, plus the urgent need to revise the SAVE plan to comply with an injunction issued by the Eighth Circuit. These regulations allow the Department to offer at least one repayment option under the income contingent repayment authority to borrowers on a time-limited basis while the Department actively works to carry out the operational steps necessary to offer an injunction-compliant version of SAVE.
This rule adjusts the eligibility requirements that allow borrowers to enroll in the ICR and PAYE plans until July 1, 2027, an extension from the existing date of July 1, 2024.
As described further in the
The primary benefit of these changes for the Department is that they allow us to meet our statutory obligation under the HEA to offer payments under the income contingent repayment authority. There may also be secondary benefits to the Department. This includes the possibility that borrowers choose to enroll in PAYE or ICR instead of falling delinquent or going into default. It could also mean a reduction in questions or concerns from borrowers, such as those seeking PSLF, who are trying to figure out how to make qualifying monthly payments.
Borrowers who elect to enroll in the PAYE or ICR plans during this time-limited period may also see some benefits, which would include some additional certainty about their payment amounts in the face of litigation as well as the ability to make progress toward certain types of forgiveness during the time until the pending cases are resolved. For instance, there are approximately 200,000 borrowers enrolled in the SAVE plan who have certified at least some employment toward PSLF, and who are eligible for the PAYE plan, but who are not eligible for the terms of the IBR plan offered to borrowers who first took out a loan on or after July 1, 2014. If these individuals choose to sign up for PAYE, they would
Beyond borrowers currently enrolled in SAVE, there are approximately 13.9 million borrowers who are in repayment and who do not have Parent PLUS loans who are not currently on an income contingent repayment plan.
The monthly payment savings described above would be similar for any borrower with older loans that are not eligible for the version of IBR for newer borrowers but who is eligible for PAYE. This could include borrowers who have recently returned to repayment through the Fresh Start Initiative, which allowed borrowers to exit default. It also could include older borrowers who are now considering IDR plans.
This IFR creates administrative costs relating to systems updates that allow borrowers to access PAYE and ICR. We anticipate these would be one-time costs of $400,000 as these plans still exist for continuously enrolled borrowers. The ability to select PAYE or ICR could also create costs in the form of transfers if borrowers are able to select plans that produce lower payments over the borrower's time in repayment. The nature and extent of these costs depends on baseline policy, namely what other plans are available and the terms of those plans. We do not anticipate these costs will be significant, as we discuss in the
There may be additional costs related to the potential that borrowers may have a harder time choosing among repayment plans. However, we think several factors mitigate this concern. One is that, until a version of the SAVE plan that is compliant with the court injunction is available, the number of options for borrowers to make payments on an income contingent repayment plan will not be appreciably larger. For some borrowers, the ICR plan may be their only option, while the choice for borrowers who are eligible for PAYE and ICR should be simple, because the former generally produces lower payments for most borrowers. Over the long run, the time-limited nature of these changes means that eventually borrowers will go back to only choosing the SAVE plan, or the ICR plan if they have a consolidation loan that repaid a Parent PLUS loan. The Department will also continue working to improve and update tools available to help borrowers choose their plans.
As the Department expects the SAVE plan to be available and advantageous to most borrowers in the long run, we do not estimate a significant budget impact from making PAYE and ICR available again to eligible borrowers, including those who had chosen SAVE. As was noted in the final rule that created the SAVE plan (88 FR 43820), the Department's budget modeling assigns IDR borrowers to specific plans based on a comparison of the net present value of the payments the borrower makes under the various plans for which they are eligible.
However, there is considerable uncertainty regarding when borrowers in SAVE may see their payments resume due to ongoing litigation. A lengthy forbearance for borrowers in the SAVE plan could lead some borrowers to decide to enroll in a different income contingent repayment plan if that would result in lower net present value of payments. In order to evaluate this, the Department has done a sensitivity analysis that includes a nine-month forbearance in FY 2025 that does not count toward IDR forgiveness with the PB2025 baseline SAVE borrowers and compared that to a run with the SAVE or PAYE/ICR choice redone to include that forbearance in the choice decision. As is the case for the baseline choice decision, the plan choice for the sensitivity is based on the net present value (NPV) at a 30 percent discount rate between the cashflow streams for each plan generated for the borrower sample. This is the approach the Department has used for modeling IDR plan choice decisions and takes into account changes across the entire payment stream. This approach assumes borrowers know their income and family profile trajectories over the life of their loans and choose the plan that offers the lowest lifetime, present-discounted payments. The Department recognizes that borrowers may use different logic when choosing a repayment plan, such as comparing near-term monthly payments, and will not have information about their future incomes and family patterns to match this type of analysis, but we believe any decision logic would result in a relatively small percentage of borrowers choosing to revert to PAYE or ICR long-term. The sensitivity run resulted in a cost of $70.5 million, which represents the effect of the change in payments on the estimated net present value of all future non-administrative Federal costs associated with cohorts of loans.
As required by OMB Circular A-4, we have prepared an accounting statement
The Department considered a few alternatives in issuing this IFR. First, we considered not issuing any regulations and leaving access to IDR plans unchanged. Second, we considered not issuing these regulations as an IFR and instead conducting negotiated rulemaking followed by notice and comment. However, for the reasons explained above, we decided to make these changes in an IFR. As outlined in the preamble to this IFR, we are making these time-limited changes because the Department is not currently complying with the statutory requirement to offer borrowers an income contingent repayment plan while we work to offer a version of the SAVE plan that complies with the Eighth Circuit's injunction. We also considered alternative new dates for when a borrower would no longer be able to access PAYE or ICR unless they were already enrolled in that plan. All the dates we considered were on July 1 to reflect the start of the new award year, which is when changes to Federal student aid regulations generally go into effect. We initially considered dates before July 1, 2026 but were concerned that we may not have a final decision on SAVE by that point and therefore will not know if we need to make any further changes that would prevent us from offering a compliant version of SAVE by that date. We also declined to use these earlier dates because we thought choosing a date to sunset these provisions that was the same as or before the effective date of this IFR would generate unwanted confusion. Because we want to provide clarity to borrowers and not make further adjustments to the dates in this IFR, we chose July 1, 2027, as the date that provides sufficient time to make certain the Department is not again in a position of being unable to offer an income contingent repayment plan without making a change that reopens PAYE and ICR without a cutoff.
The Secretary certifies, under the Regulatory Flexibility Act (5 U.S.C. 601
These regulations will not have a significant impact on a substantial number of small entities because they are focused on arrangements between the individual borrower and the Department. There are no small entities that are impacted by this rule. This rule does not affect institutions of higher education in any way, and those entities are typically the focus of the Regulatory Flexibility Act analysis for the Department of Education.
We have determined that there are no Paperwork Reduction Act of 1995 implications specifically associated with regulations in this IFR. Borrowers who wish to sign up for PAYE or ICR repayment plans under this IFR will be completing the form that already exists for enrollment in other IDR plans, OMB Control Number 1845-0102. To accommodate the changes made to the programs in the IDR final rule and the court challenges, we are separately updating the current IDR form under an emergency clearance and will be providing a full 60-day and 30-day public comment period. We do not estimate any new burden to 1845-0102 from this IFR.
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for this program.
In accordance with section 411 of the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on whether these final regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.
Executive Order 13132 requires us to provide meaningful and timely input by State and local elected officials in the development of regulatory policies that have federalism implications. “Federalism implications” means substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. The regulations do not have federalism implications.
You may also access Department documents published in the
Administrative practice and procedure, Colleges and universities, Education, Loan programs—education, Reporting and recordkeeping requirements, Student aid, Vocational education.
For the reasons discussed in the preamble, the Secretary of Education amends part 685 of title 34 of the Code of Federal Regulations as follows:
(c) * * *
(4) A borrower may repay under the PAYE plan only if the borrower—
(i) Has loans eligible for repayment under the plan;
(ii) Is a new borrower;
(iii) Has a partial financial hardship when the borrower initially enters the plan; and
(iv) Was repaying a loan under the PAYE plan on July 1, 2027. A borrower who was repaying under the PAYE plan on or after July 1, 2027, and changes to a different repayment plan in accordance with § 685.210(b) may not re-enroll in the PAYE plan.
(5)(i) Except as provided in paragraph (c)(5)(ii) or (iii) of this section, a borrower may enroll under the ICR plan only if the borrower—
(A) Has loans eligible for repayment under the plan; and
(B) Was repaying a loan under the ICR plan on July 1, 2027. A borrower who was repaying under the ICR plan on or after July 1, 2027, and changes to a different repayment plan in accordance with § 685.210(b) may not re-enroll in the ICR plan unless they meet the criteria in paragraph (c)(5)(ii) or (iii) of this section.
(ii) A borrower may choose the ICR plan to repay a Direct Consolidation Loan disbursed on or after July 1, 2006, and that repaid a parent Direct PLUS Loan or a parent Federal PLUS Loan.
(iii) A borrower who has a Direct Consolidation Loan disbursed on or after July 1, 2025, which repaid a Direct parent PLUS loan, a FFEL parent PLUS loan, or a Direct Consolidation Loan that repaid a consolidation loan that included a Direct parent PLUS or FFEL parent PLUS loan, may not choose any IDR plan except the ICR plan.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of Connecticut. On May 9, 2023, and supplemented on February 21, 2024, the State submitted a Limited Maintenance Plan (LMP) for the 2006 24-hour PM
This rule is effective on December 16, 2024.
EPA has established a docket for this action under Docket Identification No. EPA-R01-OAR-2024-0117. All documents in the docket are listed on the
Ayla Martinelli, Air Quality Branch, U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office Square—Suite 100, (Mail code 5-MI), Boston, MA 02109-3912, tel. (617) 918-1057, email
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On December 14, 2009, EPA designated the New Haven-Fairfield area as nonattainment for the 2006 PM
The New Haven-Fairfield LMP for the 2006 PM
EPA received one comment during the comment period. The comment we received supports the final approval of the proposed action.
EPA is approving the Connecticut LMP for the New Haven-Fairfield area for the 2006 24-hour PM
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. EPA defines EJ as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
CT DEEP did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for communities with EJ concerns.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 14, 2025. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Particulate matter, Sulfur oxides, Volatile organic compounds.
For the reasons stated in the preamble, the Environmental Protection Agency amends part 52 of chapter I, title 40 of the Code of Federal Regulations as follows:
42 U.S.C. 7401
(c) * * *
(134) Revisions to the State Implementation Plan submitted by the Connecticut Department of Environmental Protection on May 9, 2023, and supplemented on February 21, 2024.
(i) [Reserved]
(ii) Additional materials.
(A) The Connecticut Department of Energy and Environmental Protection document “Limited Maintenance Plan for Connecticut's Fine Particulate Matter (PM
(B) The CT DEEP document “Motor Vehicle Assessment for Connecticut's Fine Particulate Matter (PM
(i) Approval—EPA is approving a 2006 24-hour PM
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to provide updates to the existing definition of “departments and agencies.”
Effective November 15, 2024.
Tonya De Saussure, telephone (202) 805-1388.
This final rule revises the DFARS definition of “departments and agencies” at DFARS 202.101, Definitions, to add recently established defense agencies. This update is part of a periodic policy review to ensure the accuracy of the regulation. The last update to this definition occurred on January 30, 2013 (77 FR 76938), under DFARS case 2012-D045.
The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is 41 U.S.C. 1707, Publication of Proposed Regulations. Subsection (a)(1) of the statute 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 does not have a significant effect beyond the internal operating procedures of DoD. The final rule provides for recent additions to the defense agencies identified in the definition of “departments and agencies.”
This final rule does not create any new solicitation provisions or contract clauses. It does not impact any existing solicitation provisions or contract clauses or their applicability to contracts valued at or below the simplified acquisition threshold, for commercial products including COTS items, or for commercial services.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, as amended.
As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the
The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.
This final 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. chapter 35).
Government procurement.
Therefore, the Defense Acquisition Regulations System amends 48 CFR part 202 as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement sections of the National Defense Authorization Acts for Fiscal Years 2018 and 2019 regarding the applicability of certain solicitation provisions and contract clauses to contracts and subcontracts for commercial products, commercial services, and commercially available off-the-shelf items.
Effective November 25, 2024.
Ms. Jeanette Snyder, telephone 703-508-7524.
DoD published a proposed rule in the
Paragraph (a) of section 837 of the NDAA for FY 2019 revises 10 U.S.C. 2375(b)(2), redesignated as 10 U.S.C. 3452(b)(2), by deleting the date “January 1, 2015” and adding the date “October 13, 1994” (the date of the Federal Acquisition Streamlining Act (FASA) of 1994). DoD published an extension to the comment period in the
DoD reviewed the public comments in the development of the final rule; however, no changes were made to the rule as a result of the comments received. A discussion of the comments is provided, as follows:
DFARS 212.371 is amended to add the contract clauses at DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting, and 252.205-7000, Provision of Information to Cooperative Agreement Holders, to the list of solicitation provisions and contract clauses that are inapplicable to contracts for the acquisition of COTS items. These clauses are not applicable to contracts solely for the acquisition of COTS items. DFARS 212.301 is amended to restore, to the list of provisions and clauses that apply to commercial products and commercial services, the clause at DFARS 252.203-7005, Representation Relating to Compensation of Former DoD Officials, that was removed from the list in the proposed rule. This change aligns this final rule with the final rule for DFARS Case 2010-D020 published in the
A conforming change is made to the prescription at 205.470 for the clause at DFARS 252.205-7000. Language at 203.171-4(b) regarding applicability to commercial products and commercial services, which was proposed for deletion, has been restored in the prescription for the provision at DFARS 252.203-7005. DFARS 212.205, Offers, is removed to align with changes made at DFARS 215.371-4(a)(7). DFARS 212.371 is amended to change the date “October 14, 1994”, to “October 13, 1994” to align with 10 U.S.C. 3452. The prescription at DFARS 225.1103(4) for the clause at 252.225-7007, Prohibition on Acquisition of Certain Items from Communist Chinese Military Companies, is amended to add the requirement to include the clause in solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, to align with the determination made in the final rule for DFARS Case 2018-D020 published on December 21, 2018, at 83 FR 66066.
This final rule does not create any new solicitation provisions or contract clauses. However, the final rule clarifies the applicability of the following provisions and clause by amending the list under paragraph (f) at DFARS 212.301, Solicitation provisions and contract clauses for the acquisition of commercial products and commercial services, to remove DFARS clause 252.203-7003, Agency Office of the Inspector General, and DFARS provision 252.215-7007, Notice of Intent to Resolicit. This rule also clarifies the applicability of certain provisions and clauses by amending the list at DFARS 212.370, Inapplicability of certain provisions and clauses to contracts and subcontracts for the acquisition of commercial products, commercial services, and COTS items, to add the following: (1) DFARS clause 252.203-7003, Agency Office of the Inspector General; and (3) DFARS provision 252.215-7007, Notice of Intent to Resolicit. In addition, this rule makes similar clarifications at DFARS 212.371, Inapplicability of certain provisions and clauses to contracts for the acquisition of COTS items, to add the following: (1) DFARS clause 252.205-7000, Provision of Information to Cooperative Agreement Holders; (2) DFARS provision 252.204-7008, Compliance with Safeguarding Covered Defense Information Controls; (3) DFARS clause 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting; (4) DFARS provision 252.204-7019, Notice of NIST SP 800-171 DoD Assessment Requirements; (5) DFARS clause 252.204-7020, NIST SP 800-171 DoD Assessment Requirements; and (6) DFARS clause 252.204-7021, Cybersecurity Maturity Model Certification Requirements.
This final rule could impact any large or small business that is awarded a commercial contract by DoD. This rule does not add any new solicitation provisions or contract clauses. Rather, there may be a reduction in burden on contractors by making one solicitation provision and one contract clause no longer applicable to solicitations and contracts for commercial products, commercial services, and COTS items, and by making two provisions and four clauses no longer applicable to solicitations and contracts for COTS items.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, as amended.
As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the
A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
This rule is necessary to implement sections of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 and the NDAA for FY 2019 regarding the applicability of certain solicitation provisions and contract clauses to contracts and subcontracts for commercial products, commercial services, and commercially available off-the-shelf (COTS) items.
The objective of this rule is to implement paragraphs (b) and (c) of section 849 of the NDAA for FY 2018 (Pub. L. 115-91). Section 849 paragraph (b) requires an amendment to the DFARS to eliminate certain contract clause requirements applicable to FAR part 12 commercial product and commercial service acquisitions, except for regulations required by law or Executive order, unless the Secretary of Defense determines that there is a
This rule also includes revisions to implement paragraph (a) of section 837 of the NDAA for FY 2019 (Pub. L. 115-232). Section 837 paragraph (a) revises 10 U.S.C. 2375(b)(2), redesignated as 10 U.S.C. 3452(b)(2), by deleting the date “January 1, 2015” and adding the date “October 13, 1994.” This rule implements the change at 10 U.S.C. 3452(b)(2) by amending the DFARS to eliminate solicitation provisions and contract clauses enacted after October 13, 1994, not including the provisions or clauses referred to in 10 U.S.C. 3452(e)(1), (e)(2), and (e)(3), from commercial product and commercial service solicitations and contracts, respectively, unless the Under Secretary of Defense for Acquisition and Sustainment makes a written determination that it would not be in the best interest of the Department of Defense to exclude them.
No significant issues were raised by the public comments in response to the initial regulatory flexibility analysis.
According to data from the Federal Procurement Data System for FY 2021 through FY 2023, DoD awarded approximately 31,022 contracts for commercial products, commercial services, or COTS items to an average of 13,335 unique small entities per year. Therefore, DoD estimates that the number of small entities to which this rule will apply is 13,335.
This rule does not include any new reporting, recordkeeping, or other compliance requirements for small entities.
There are no known alternatives that would accomplish the stated objectives of the statutes.
This final 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. chapter 35).
Government procurement.
Therefore, the Defense Acquisition Regulations System amends 48 CFR parts 203, 204, 205, 212, 215, and 225 as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(a) Use the clause at 252.203-7003, Agency Office of the Inspector General, in solicitations and contracts that include the FAR clause 52.203-13, Contractor Code of Business Ethics and Conduct.
(b) Use the clause at 252.204-7015, Notice of Authorized Disclosure of Information for Litigation Support, in solicitations and contracts that involve litigation support services, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services.
Use the clause at 252.205-7000, Provision of Information to Cooperative Agreement Holders, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, except for solicitations and contracts solely for the acquisition of commercially available off-the-shelf items, that are expected to exceed $1.5 million. This clause implements 10 U.S.C. 4957.
The revisions read as follows:
(f) * * *
(ii) * * *
(B) Use the provision at 252.204-7008, Compliance with Safeguarding Covered Defense Information Controls, as prescribed in 204.7304(a), to comply with section 941 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239) and section 1632 of the National Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291).
(C) Use the clause at 252.204-7009, Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber Incident Information, as prescribed in 204.7304(b), to comply with section 941 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239) and section 1632 of the National
(D) Use the clause at 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting, as prescribed in 204.7304(c), to comply with section 941 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239) and section 1632 of the National Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291).
(viii) * * *
(D) Use the provision at 252.219-7012, Competition for Religious-Related Services, as prescribed in 219.270-3, to comply with section 898 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92).
(x) * * *
(J) Use the clause at 252.225-7016, Restriction on Acquisition of Ball and Roller Bearings, as prescribed in 225.7009-5, to comply with section 8065 of Public Law 107-117 and the same restriction in subsequent DoD appropriations acts.
(K) Use the clause at 252.225-7017, Photovoltaic Devices, as prescribed in 225.7017-4(a), to comply with section 846 of the National Defense Authorization Act for Fiscal Year 2011 (Pub. L. 111-383).
(L) Use the provision at 252.225-7018, Photovoltaic Devices—Certificate, as prescribed in 225.7017-4(b), to comply with section 846 of the National Defense Authorization Act for Fiscal Year 2011 (Pub. L. 111-383).
(U) Use the clause at 252.225-7029, Acquisition of Uniform Components for Afghan Military or Afghan National Police, as prescribed in 225.7703-4(d), to comply with section 826 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239).
(Y) Use the clause at 252.225-7039, Defense Contractors Performing Private Security Functions Outside the United States, as prescribed in 225.302-6, to comply with section 862 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
(xi) * * *
(B) Use the provision at 252.226-7002, Representation for Demonstration Project for Contractors Employing Persons with Disabilities, as prescribed in 226.7203, to comply with section 853 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136).
(xv) * * *
(A) Use the clause at 252.237-7010, Prohibition on Interrogation of Detainees by Contractor Personnel, as prescribed in 237.173-5, to comply with section 1038 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84).
(B) Use the clause at 252.237-7019, Training for Contractor Personnel Interacting with Detainees, as prescribed in 237.171-4, to comply with section 1092 of the National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375).
(xx) * * *
(B) Use the clause at 252.246-7004, Safety of Facilities, Infrastructure, and Equipment for Military Operations, as prescribed in 246.270-4, to comply with section 807 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84).
(xxi) * * *
(A) Use the clause at 252.247-7003, Pass-Through of Motor Carrier Fuel Surcharge Adjustment to the Cost Bearer, as prescribed in 247.207, to comply with section 884 of the National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-417).
(D) Use the provision at 252.247-7026, Evaluation Preference for Use of Domestic Shipyards—Applicable to Acquisition of Carriage by Vessel for DoD Cargo in the Coastwise or Noncontiguous Trade, as prescribed in 247.574(c), to comply with section 1017 of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364).
(b) 252.203-7003, Agency Office of the Inspector General.
(c) 252.215-7007, Notice of Intent to Resolicit.
The revision and additions read as follows:
Commercially available off-the-shelf (COTS) items are a subset of commercial products. Therefore, the provisions and clauses listed in 212.370 as not applicable to contracts or subcontracts for the acquisition of commercial products are also not applicable to contracts or subcontracts for the acquisition of COTS items. In addition, the following provisions and clauses published after October 13, 1994, not expressly authorized in law, are not applicable or are modified in their applicability to contracts for the acquisition of COTS items:
(b) 252.204-7008, Compliance with Safeguarding Covered Defense Information Controls.
(c) 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting.
(d) 252.204-7019, Notice of NIST SP 800-171 DoD Assessment Requirements.
(e) 252.204-7020, NIST SP 800-171 DoD Assessment Requirements.
(f) 252.204-7021, Cybersecurity Maturity Model Certification Requirements.
(g) 252.205-7000, Provision of Information to Cooperative Agreement Holders.
The addition reads as follows:
(a) * * *
(7) Acquisitions of commercial products and commercial services using FAR part 12 procedures.
Use the provision at 252.215-7007, Notice of Intent to Resolicit, in competitive solicitations that will be solicited for fewer than 30 days, unless an exception at 215.371-4 applies or the requirement is waived in accordance with 215.371-5.
(4) Unless an exception in 225.770-3 applies, use the clause at 252.225-7007, Prohibition on Acquisition of Certain Items from Communist Chinese Military Companies, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, involving the delivery of items covered by the United States Munitions List or the 600 series of the Commerce Control List.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2024 that provides direction to contracting officers evaluating the past performance of small business concerns.
Effective November 15, 2024.
Ms. Kimberly R. Ziegler, telephone 703-901-3176.
DoD is issuing a final rule amending the DFARS to implement section 865 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2024 (Pub. L. 118-31). Section 865 requires DoD contracting officers to consider relevant past performance of affiliate companies of small business concerns during the evaluation of past performance in response to a competitive solicitation.
The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is 41 U.S.C. 1707, Publication of Proposed Regulations. Subsection (a)(1) of the statute 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 there is no significant cost or administrative impact on contractors or offerors. When past performance will be evaluated in a source selection, contracting officers already request offerors to submit past performance information. This rule will allow offerors to provide past performance information for an affiliate company within that submission, and the Government would consider those submissions during the existing evaluation process.
This final rule does not create any new solicitation provisions or contract clauses. It does not impact any existing solicitation provisions or contract clauses or their applicability to contracts valued at or below the simplified acquisition threshold, for commercial products including COTS items, or for commercial services.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, as amended.
As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules Under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the
The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.
This final 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. chapter 35).
Government procurement.
Therefore, the Defense Acquisition Regulations System amends 48 CFR part 215 as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(a)(2)
(B) Contracting officers shall consider an offeror's failure to make a good faith effort to comply with its comprehensive subcontracting plan under the Test Program described at 219.702-70 as part of the evaluation of the past performance.
(C) When evaluating the past performance of an offeror that is a small business concern in response to a competitive solicitation, contracting officers shall consider relevant past performance information provided for affiliates of the offeror.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule; technical amendment.
DoD is amending the Defense Federal Acquisition Regulation Supplement (DFARS) to make needed editorial changes.
Effective November 15, 2024.
Ms. Jennifer D. Johnson, Defense Acquisition Regulations System, telephone 703-717-8226.
This final rule amends the DFARS to make needed editorial changes to add a pointer to new text in DFARS Procedures, Guidance, and Information.
Government procurement.
Therefore, the Defense Acquisition Regulations System amends 48 CFR part 225 as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
If construction and construction materials will be used during the performance of a contract for DoD energy savings service requirements, see PGI 225.270 for additional guidance.
Office of Acquisition Policy, General Services Administration (GSA).
Final rule.
The General Services Administration is issuing this final rule amending the General Services Administration Acquisition Regulation (GSAR) to remove the requirement for lease offerors to have an active System for Award Management registration when submitting offers and instead allow offers up until the time of award to obtain an active registration.
For clarification of content, contact Ms. Michaela Mastroianni, Procurement Analyst, or Ms. Amy Lara, Procurement Analyst, at
GSA published a proposed rule in the
On February 12, 2020, GSA established a GSA specific version of the FAR clause to permit the completion of SAM representation for leases prior to award instead of prior to offer for leasing companies. GSA would therefore only require the apparent awardee to complete the SAM registration. This change will codify this provision in the GSAR.
GSA provided the public a 60-day comment period (March 27, 2024, to May 28, 2024). GSA did not receive any comments from the public.
Two editorial fixes were made:
• GSA corrected the Office of Management and Budget (OMB) Control Number referenced in error in the proposed rule and included the OMB Control Number in GSAR 501.106 for this final rule.
• The prescribed Alternate I (552.270-35) language was erroneously not included in the proposed rule. This language is now included.
There were no public comments received that are specific to the
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 14094 Modernizing Regulatory Review (
OIRA has determined this rule is not to be a “major rule” under 5 U.S.C. 804(2). The Congressional Review Act, 5 U.S.C. 801
GSA does not expect this 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. 601,
The Regulatory Secretariat will submit a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the FRFA may be obtained from the Regulatory Secretariat Division.
The analysis is summarized as follows:
GSA is amending the GSAR to permit the completion of the SAM representations at award instead of at offer for lease procurements.
There were no comments submitted and therefore no significant issues raised by the public in response to the initial regulatory flexibility analysis.
Two editorial fixes were made:
• GSA corrected the OMB Control Number referenced in error in the proposed rule and included the OMB Control Number in GSAR 501.106 for this final rule.
• The prescribed Alternate I (552.270-35) language was erroneously not included in the proposed rule. This language is now included.
The objective of the rule is to amend the GSAR to amend Part 552, Solicitation Provisions and Contract Clauses, of the GSAR by creating Subsection 552.270-35, System for Award Management—Leasing.
Title 40 of the United States Code (U.S.C.) Section 121 authorizes GSA to issue regulations, including the GSAR, to control the relationship between GSA and contractors.
GSA has approximately 8,000 leases in total. Approximately 70 percent of leasing entities were small entities. This information is based on internal inventory data sources.
GSA does not expect this rule to have a significant economic impact on a substantial number of small business entities within the meaning of the Regulatory Flexibility Act, at 5 U.S.C. 601. This rule reduces the burden on small business entities by allowing offerors to complete SAM representation for leases prior to award instead of prior to offer, and does not implement new or changed requirements.
The rule involves reporting and recordkeeping that are currently covered under OMB Control Number 9000-0189, Certain Federal Acquisition Regulation Part 4 Requirements. This rule does not include any new reporting, recordkeeping, or other compliance requirements for small business entities.
This rule does not duplicate, overlap, or conflict with any other Federal rules.
There are no known alternatives to this rule which would accomplish the stated objectives. This rule does not initiate or impose any new administrative or performance requirements on small business contractors.
The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply; however these changes to the GSAR do not impose additional information collection requirements to the paperwork burden previously approved under the Office of Management and Budget Control Number 9000-0189,
Government procurement.
Therefore, GSA is amending 48 CFR parts 501, 552, and 570 as set forth below:
40 U.S.C. 121(c).
The addition reads as follows:
As prescribed in 570.702, insert the following provision:
(a)
(i) The Offeror has entered all mandatory information, including the unique entity identifier and the EFT indicator, if applicable, the Commercial and Government Entity (CAGE) code, as well as data required by the Federal Funding Accountability and Transparency Act of 2006 (see subpart 4.14) into SAM;
(ii) The Offeror has completed the Core, Assertions, Representations and Certifications, and Points of Contact sections of the registration in SAM;
(iii) The Government has validated all mandatory data fields, to include validation of the Taxpayer Identification Number (TIN) with the Internal Revenue Service (IRS). The offeror will be required to provide consent for TIN validation to the Government as a part of the SAM registration process; and
(iv) The Government has marked the record “Active”.
(b)(1) An Offeror is required to be registered in SAM at time of award, and shall maintain registration in SAM during contract performance, and through final payment of any contract, basic agreement, basic ordering agreement, or blanket purchasing agreement resulting from this solicitation.
(2) The Offeror shall enter, in the block with its name and address on the cover page of its offer, the annotation “Unique Entity Identifier” followed by the unique entity identifier that identifies the Offeror's name and address exactly as stated in the offer. The Offeror also shall enter its EFT indicator, if applicable. The unique entity identifier will be used by the Contracting Officer to verify that the Offeror is registered in SAM.
(c) If the Offeror does not have a unique entity identifier, it should contact the entity designated at
(1) Company legal business name.
(2) Tradestyle, doing business, or other name by which the entity is commonly recognized.
(3) Company physical street address, city, state, and Zip Code.
(4) Company mailing address, city, state and Zip Code (if separate from physical).
(5) Company telephone number.
(6) Date the company was started.
(7) Number of employees at your location.
(8) Chief executive officer/key manager.
(9) Line of business (industry).
(10) Company headquarters name and address (reporting relationship within the entity).
(d) If the Offeror does not become registered in the SAM database in the time prescribed by the Contracting Officer, the Contracting Officer will proceed to award to the next otherwise successful registered Offeror.
(e) Processing time should be taken into consideration when registering. Offerors who are not registered in SAM should consider applying for registration immediately upon receipt of the solicitation. See
Alternate I (12/2024).As prescribed in 570.702, substitute the following paragraph (b)(1) for paragraph (b)(1) of the basic provision:
(b)(1) An Offeror is required to be registered in SAM as soon as possible. If registration is not possible prior to award, the Contractor shall be registered in SAM within 30 days after award or before three days prior to submission of the first invoice, whichever occurs first.
Use Alternate I of the provision for procurements not providing for full and open competition due to unusual or compelling urgency.
Postal Service
Proposed rule.
The United States Postal Service seeks public comment on proposed revisions to the service standards for certain market-dominant mail products. The Postal Service proposes to restructure the service standards, such that service standards for domestic First-Class Mail would retain the current day range of 1-5 days (as well as the current 0-1 days for USPS Connect® Local), while being calculated, with certain exceptions, as the sum of delivery days accruing across three successive operational legs reflecting end-to-end service from an originating 5-digit ZIP Code to a destinating 5-digit ZIP Code. The proposed rule would also partially adjust the service standards for end-to-end Periodicals, USPS Marketing Mail, and Package Services so that they would all be primarily based on the standards for First-Class Mail, consistent with the Postal Service's implementation of a more integrated network, thus continuing our efforts to eliminate our legacy network that, due to its poor design, has multiple, redundant network flows. In particular, the proposed service standards align with operational initiatives that the Postal Service plans to implement on a nationwide basis to fundamentally transform our processing and transportation networks to achieve greater operational precision and efficiency, significantly reduce costs, and enhance service pursuant to the
Comments must be received on or before December 31, 2024.
Mail or deliver written comments to the Director, Product Classification, U.S. Postal Service, 475 L'Enfant Plaza SW, Room 4446, Washington, DC 20260-3436. Email comments, containing the name and address of the commenter, may be sent to:
Martha Johnson, Senior Public Relations Representative, at
The Postal Service proposes to amend 39 CFR part 121 to revise the current service standards for certain market-dominant products. These revisions achieve the objectives set forth in 39 U.S.C. 3691(b), taking into account the factors of 39 U.S.C. 3691(c). Overall, they further the Postal Service's obligations under 39 U.S.C. 101 and other provisions of Title 39 of the U.S. Code to provide universal postal services in a prompt, reliable, and efficient manner. The Postal Service is required by law to provide universal postal services in a financially self-sufficient manner, through an integrated network for the delivery of mail and packages at least six days a week. The Postal Service currently is not financially self-sufficient, and also lacks a network that is conducive to the logical, efficient, cost-effective, and reliable movement of mail and packages in an integrated manner from origin to destination in the modern postal environment, taking into account the current and projected volume and product mix. By implementing these operational initiatives and the proposed standards with which they are aligned, the Postal Service would be able to better balance and achieve these statutory policies and achieve the goals of the Plan to create a high-performing, financially sustainable organization.
The current standards for First-Class Mail lead to high costs and inefficiencies in the transportation and processing network, and are not conducive to providing reliable and consistent service. The Postal Service is adjusting the service standards to improve our capability to deliver mail reliably and predictably for Postal Service customers, while enhancing the ability to increase operational efficiency and effectiveness consistent with best business practices. These standards would allow the Postal Service to better meet customer needs for prompt and reliable service, while supporting the maintenance of reasonable postage rates.
Before describing how service standards would be revised, it is important to understand how service
With respect to Leg 1, the Postal Service intends to redesign regional transportation (routes between processing facilities, Post Offices, and delivery units) through the Regional Transportation Optimization (RTO) initiative to address the significant inefficiencies that exist in local and regional transportation networks and to ensure service reliability and cost efficiency. With respect to Leg 2, the Postal Service intends to systematically redesign and invest in our outmoded processing facilities to create a network of Regional Processing and Distribution Centers or Campuses (RPDCs) and Local Processing Centers (LPCs), which deploy standardized and logically sequenced operating plans and schedules for the movement of mail and packages, more sortation equipment, optimized transportation routes, and improved operating tactics to increase throughput, gain productivity, and increase asset utilization across the country.
The Postal Service is proposing to revise service standards for end-to-end market-dominant products to align with our operational initiatives; these standards would be more operationally precise and specific for customers, enable the Postal Service to maintain or upgrade service standards for a majority of volume, and enhance the ability to reliably achieve standards. In particular, the Postal Service plans to reimagine how service standards are established by breaking that service into segments so that customers have clear, understandable, and logical information about the service provided to them from a 5-digit to 5-digit ZIP Code perspective.
For First-Class Mail, the existing day ranges would be preserved, meaning all mail would continue to be delivered within the existing day range of 1-5 days (as well as the current range of 0-1 days for USPS Connect® Local). For some end-to-end products within the contiguous 48 states (Periodicals, USPS Marketing Mail, and Package Services), the maximums for those day ranges would be shortened. (Unless specified otherwise, references in this document to the “contiguous states” or the “contiguous 48 states” include the District of Columbia.) No destination entry product standards would be changed, except to reflect the new RPDC/LPC network. Overall, most mail and packages in the contiguous 48 states would either receive the same service standard or an accelerated standard so that they are delivered faster than today, while some mail and packages under the new standards would have a service expectation that is longer than the current expectation but still within the current day-ranges.
Specifically, current First-Class Mail standards are predicated solely on plant-to-plant (3-digit ZIP Code to 3-digit ZIP Code) driving distances. The proposed rule would transition to 5-digit to 5-digit ZIP Code service standards that maintain the existing delivery day ranges while, for inter-RPDC volume, accurately and logically reflecting the three operational legs applicable to the movement of mail and packages: collection to origin processing facility (Leg 1), origin processing facility to destination processing facility (Leg 2), and destination processing facility to delivery (Leg 3). Distinct rules would apply to intra-RPDC volume (that is, First-Class Mail volume that originates and destinates in the same RDPC region), as well as certain intra-LPC volume.
Because the current standards are predicated on plant-to-plant driving distances, they do not consider the regional and local transportation operations necessary to transport mail and packages from where they are collected to the processing network: that is, within a particular 3-digit ZIP Code, a mailpiece that originates at a Post Office that is 300 miles from the processing facility in which the mailpiece is dispatched to the network has the same standard as a mailpiece that originates 20 miles from that processing facility (if they are going to the same destination 3-digit ZIP Code). To meet the constraints imposed by this current approach to service standards, the Postal Service must structure our transportation network to ensure that all originating mail gets to the processing network on the day it is collected from customers, no matter how far away from the processing network it is entered. This leads to significant inefficiencies in our regional transportation practices, because the Postal Service must conduct separate trips to drop-off destinating volume from the processing network to collection/delivery facilities in the morning (AM drop-off) and pick-up originating volume from the collection/delivery facilities to the processing network in the afternoon (PM collections), or alternatively pay Highway Contract Route (HCR) contractors to layover for multiple hours between the AM and PM legs of their routes.
While this practice of separating drop-off and pick-up activities may have made sense in a different era where the volume of single-piece letter mail was much greater, it engenders costs and inefficiencies impossible to justify in today's environment. Overall, the current practice results in inefficient transportation—characterized by excessive trips, poor utilization of truck capacity, and excess carbon emissions. In addition, the current practice reduces the efficiency and reliability of our Leg 2 operations (processing and network transportation), because the need to wait for the volume from outlying collection/delivery facilities to arrive at the processing plant on the PM transportation creates a volume arrival profile which reduces efficiencies, requires the scheduled dispatch to the network to be later, and increases the likelihood either for the scheduled dispatch to leave late in order to wait for all of the mail and packages to arrive at the plant and be processed, or for mail and packages to not make the scheduled dispatch at all because it does not make it to the plant on time to be processed on that day given the compressed processing window. This impacts not only the efficiency and velocity of originating operations, but can also have substantial negative downstream effects that reduce our service performance for all volume.
With respect to Leg 1, the Postal Service proposes the nationwide implementation of RTO, for mail originating in the contiguous states, to correct for these inefficiencies. Pursuant to RTO, the Postal Service will have the ability to structure transportation routes that go to facilities that are farther from the processing network so that trucks would pick up originating volume on
The proposed standards will more logically and accurately reflect our operations within Leg 1 and enable the implementation of the RTO initiative, thereby giving the Postal Service the ability to optimize our regional and local transportation. Specifically, and as part of the proposed shift from the 3-digit to 3-digit ZIP Code standards to a more refined service calculation based on 5-digit ZIP Codes, the service standards will explicitly accommodate the fact that mail and packages entered the prior day would under RTO be picked up on the next day's transportation route for certain ZIP Codes. Mailpieces entered in ZIP Codes subject to RTO would therefore have one day assigned for Leg 1 in the service standards; zero days will apply in Leg 1 to pieces originating in other 5-digit ZIP Codes not subject to RTO. Implementing this change is the only way to correct for the significant deficiencies of the current network, while also ensuring that the standards set forth achievable, reliable, and understandable service expectations for customers.
With respect to Leg 2, the proposed standards reflect the increased efficiency, velocity, and reach of our processing and network transportation due to the operational benefits of the RPDC/LPC redesign and RTO. As noted above, the network of RPDCs and LPCs will deploy standardized and logically sequenced operating plans and schedules, more sortation equipment, optimized transportation routes, and improved operating tactics to increase throughput, gain productivity, and increase asset utilization across the country. In addition, RTO enables more efficient and accelerated originating processing operations, therefore allowing volumes to enter the network earlier. As a result of these benefits, the Postal Service is proposing to expand by four hours each of the existing service standard bands within Leg 2 for First-Class Mail so that such mail can travel farther to plants that are a greater distance from the originating plant within the Leg 2 bands.
Finally, while the Postal Service is recognizing Leg 3 in our First-Class Mail standards, no additional days are being added for this leg, which is the same as the current standards.
These proposed adjustments to the service standards would lead to a net positive impact for First-Class Mail from a service standard perspective, and generally faster service for end-to-end USPS Marketing Mail, Periodicals, and Package Services. The proposed service standards reflect the fact that the operational changes will enable volume to be accelerated through Leg 2, due to the benefits of the new network design and RTO; as a result, the Leg 2 bands for First-Class Mail will be expanded by four hours compared to the current standards. All volume would benefit from greater service reliability. Some mail and packages (constituting a minority of volume) in the contiguous states would experience a service standard that is longer than the current service standard (although still within the current day ranges), primarily because the Postal Service would assign one day within Leg 1 for all volume originating in a 5-digit ZIP Code that is subject to the RTO, as described below. In addition, as a result of the overall changes, a small volume of mail and packages to and/or from locations outside the contiguous states would experience a service standard that is longer than the current service standards, while other volume outside the contiguous states would experience a service standard that is shorter than the current service standards. The relative upgrades and downgrades demonstrate the Postal Service's efforts to maintain high quality service and mitigate any customer impacts to the extent possible, while also implementing operational changes necessary to achieve the critical—and significant—cost savings that are necessary for financial sustainability.
The proposed service standards are a critical aspect of the Plan's overall goals to create a financially sustainable and reliable Postal Service capable of achieving our universal service mission for all customers for years to come. In this regard, and considering the Postal Service's statutory obligations, the proposed changes would enable the Postal Service to achieve a better balance of cost-effectiveness and reliability, by enabling the Postal Service to undertake critically necessary operational initiatives and more realistically aligning the service standards with our operational capabilities. The proposed rule would result in much more precise and efficient network operations that better match current and projected mail mix and volumes, and the Postal Service anticipates that the changes will result in significant cost savings, in addition to enhancing service reliability and predictability. This keeps costs at reasonable levels and helps to ensure affordable rates. Overall, the operational changes and associated service standards will revitalize and rationalize our network in a way that enables us to be a modern and high-performing organization.
Pursuant to 39 U.S.C. 3661(b), on October 4, 2024, the Postal Service requested an advisory opinion from the Postal Regulatory Commission relating to these proposed revisions to 39 CFR part 121; the Commission is considering the request in Docket No. N2024-1. Further explanation and justification of the operational initiatives and the proposed service standards, and how they are consistent with 39 U.S.C. 3691 and other provisions of law, can be found in the materials that the Postal Service has filed in that docket.
Finally, while the proposed changes must also be pursued with a sense of urgency, given both our financial condition and the fundamental fact that we cannot be an efficient, high-performing organization until we fix the inefficiencies of our current network, it is important to note that the Postal Service would not implement the proposed service standard changes any sooner than 90 days after the filing of the advisory opinion request noted above. As such, these proposed changes would not be implemented until the next calendar year and would therefore not impact our preparedness for peak season 2024 (and also did not impact our efforts to deliver Election Mail in a timely fashion for the 2024 General Election).
The Postal Service's market-dominant service standards are contained in 39 CFR part 121. The specific proposed revisions to 39 CFR part 121 appear at the end of this document. The following is a summary of the proposed revisions.
Under the proposed rule, the process for collections would not change, nor would access to Postal Service retail services. Instead, RTO would eliminate the interdependency between the time mail is collected from our customers and network transportation schedules and plant processing schedules; eliminating this interdependency between local retail and collection operations, and our network logistics and processing operations, is critically important to enabling us to create a precise, efficient, and cost-effective network, as discussed in more detail above. ZIP Codes would be designated for RTO when a retail/collection facility within that 5-digit ZIP Code is more than 50 miles from the RPDC (though exceptions may apply). In situations where the RPDC is a campus, the 50-mile rule will be based on the location of the specific facility that performs cancellation operations. The proposed rule generally would add no day for Leg 1 for ZIP Codes within 50 miles from the RPDC campus and would add one day to the service standard for ZIP Codes that are more than 50 miles from the originating RPDC. This would allow for more efficient and flexible transportation schedules and improve the arrival profile for mail processing operations, enabling the Postal Service to more timely dispatch the volume that is collected closer to the RPDC to the Leg 2 transportation network.
This logic would generally apply to all end-to-end volume across market-dominant products. Because Leg 1 is the portion of operations from collection to the originating plant, this rule would not apply to any products entered at an RPDC, Presort First-Class Mail, or any destination-entered volume. For operational efficiency, the Postal Service is considering how to adjust when and where Presort First-Class Mail volume may be entered to ensure that it is not subject to RTO. This may result in specification of locations where Presort First-Class Mail can be entered, or changing the critical entry time (CET) for Presort First-Class Mail to ensure there is sufficient time for volume to enter the network. The CET is the latest time on a particular day that a mail piece can be entered into the postal network and still have its service standard calculated based on that day (this day is termed “day-zero”); all of the service standards are contingent upon proper acceptance before the applicable CET.
RTO would provide flexibility in regional transportation scheduling, as the standards would accommodate the fact that mail and packages could under RTO be picked up the next day from the Post Office on the same trip that also dropped off mail at that Post Office for delivery that day. Explicitly accounting for this operational practice in the service standards enables the Postal Service to achieve the benefits of RTO, while also providing customers with more precise and reliable service expectations. Additionally, by no longer requiring all mail to wait for the volumes collected from the furthest away Post Offices, the Postal Service would be able to accelerate the mail that is within the 50-mile radius of an RPDC through mail processing, allowing for it to be dispatched to the network earlier, thus enabling the expansion of the Leg 2 service standard bands. As such, the addition of a day for Leg 1 would not necessarily equate to the addition of a day for the service standard overall for a given mailpiece. Rather, the service standard for a particular mailpiece would depend on the specific origin and destination and the cumulative number of days that are applicable across the operational segments (with no First-Class Mail having a service standard that exceeds five days).
Under the proposed rule for First-Class Mail, there are several fundamental changes to the calculation of service standards at Leg 2 to align with the end-state RPDC network. First, the measured transit path would be updated. The current network path used for measurement is Origin Processing and Distribution Center or Facility (OPDC/F) to Area Distribution Center (ADC) to Sectional Center Facility (SCF). The proposed rule would instead measure the distance between the Originating RPDC and the Destination RPDC and then the distance between the Destination RPDC to the Destination LPC.
Second, because of the improved arrival profiles facilitated by RTO and the improved efficiencies in the RPDC network, under the proposed rule, each of the existing service standard bands would expand by four hours for First-Class Mail. For example, under the current standards, First-Class Mail traveling three hours or less receives a 2-day standard. Under the proposed changes, First-Class Mail traveling up to seven hours (
Finally, even for pairs of originating and destinating 5-digit ZIP Codes where the application of the Leg 1 and Leg 2 rules noted above would otherwise result in a 6-day standard, the standard would nonetheless be capped at five days for such pairs.
This segment-by-segment approach applies to inter-RDPC volume (
Currently, a 1-day service standard is applied to intra-SCF domestic Presort First-Class Mail pieces properly accepted at the SCF before the day-zero CET. To account for the redesigned network, a 1-day service standard would instead apply to eligible intra-LPC Presort First-Class Mail pieces properly accepted at the LPC before the day-zero CET. On the other hand, for eligible Presort First-Class Mail within the contiguous 48 states that is not eligible for the intra-LPC 1-day standard, but that nevertheless originates and destinates within the same RPDC, a 2-day service standard would apply.
RTO would not apply to originating locations outside of the contiguous 48 states; also, the service standards for domestic First-Class Mail originating and/or destinating in such locations would not necessarily depend on the segment-by-segment network path. As a result, service standards for domestic First-Class Mail originating and/or destinating in such locations would generally not change; an exception, for example, would be application of RTO to domestic Single-Piece First-Class Mail that (1) originates in the contiguous 48 states, (2) is collected in and dispatched from a 5-digit ZIP Code that is over 50 miles in driving distance from the originating RPDC, and (3) destinates in the city of Anchorage, Alaska (5-digit ZIP Codes 99501 through 99539), the 968 3-digit ZIP Code area in Hawaii, or the 006, 007, or 009 3-digit ZIP Code areas in Puerto Rico. Nevertheless, notwithstanding application of RTO generally for domestic First-Class Mail that meets these conditions, a maximum 5-day service standard would be applied.
A same-day service standard will continue to apply to USPS Connect® Local Mail pieces accepted at participating Destination Delivery Units (DDUs) before the applicable day-zero CET; for USPS Connect® Local Mail, Sorting & Delivery Centers are also considered DDUs. A 1-day service standard will continue to apply to all other pieces accepted as USPS Connect® Local Mail, including pieces accepted via carrier pick-up.
The proposed rule would also have certain effects on standards for international mail. As a result of the proposed application of 5-digit to 5-digit ZIP Code pairs, the service standard for outbound Single-Piece First-Class Mail International pieces properly accepted before the day-zero CET would be equivalent to the service standard for domestic First-Class Mail pieces originating from the same 5-digit ZIP Code area and destined to the 5-digit ZIP Code area in which the designated International Service Center is located. Similarly, the service standard for Inbound Letter Post pieces properly accepted before the day-zero CET would be equivalent to the service standard for domestic First-Class Mail pieces destined to the same 5-digit ZIP Code area and originating from the 5-digit ZIP Code area in which the applicable International Service Center is located. Because Inbound Parcel Post (at Universal Postal Union (UPU) rates) includes Inbound Surface Parcel Post (at UPU rates), and because that product is now competitively classified, the proposed rule would remove it from these market-dominant service standards.
Service standards for end-to-end Periodicals and USPS Marketing Mail originating and destinating in the contiguous 48 states would generally flow from the Single-Piece First-Class Mail standards using the same measured travel path (disregarding standards for USPS Connect® Local Mail and for intra-LPC “turnaround” service). For Periodicals, the general rule in relation to First-Class Mail would remain the same—
With respect to Destination Entry Periodicals, Destination Entry USPS Marketing Mail, and Destination Entry Package Services, the service standards generally would not change, except to reflect the new network. That is, to correspond with the operational network and infrastructure changes that the Postal Service is implementing, the LPCs would replace the ADCs and the SCFs in the service standards. Likewise, the RPDCs would replace the Network Distribution Centers (NDCs) in the service standards. These changes would allow some Destination Entry Periodicals to receive an accelerated service standard, in part because it will no longer matter in this respect whether Destination ADCs (DADCs) and Destination SCFs (DSCFs) are co-located, given that they are both being replaced by Destination LPCs (DLPCs).
Under the proposed rule, for Destination Entry Periodicals originating and/or destinating in locations outside of the contiguous 48 states, service standards would largely remain unchanged, aside from facility nomenclature updates reflecting the network redesign, with certain exceptions. A small volume of mail to and/or from locations outside the contiguous states would experience a service standard that is longer than the current service standards, while some other volume outside the contiguous states would experience a service standard that is shorter than the current service standards. Currently, for example, a 3-day service standard is applied to Periodicals pieces that qualify for a DSCF rate and are properly accepted before the day-zero CET at the designated DSCF, if they are entered at the DSCF in Puerto Rico and destined to the U.S. Virgin Islands, or destined to the following 3-digit ZIP Code areas in Alaska (or designated portions thereof): 995 (5-digit ZIP Codes 99540 through 99599), 996, 997, 998, and 999; on the other hand, currently a 4-day service standard is applied to Periodicals pieces that qualify for a DADC rate and are properly accepted before the day-zero CET at the designated DADC, if they are entered at the DADC in Puerto Rico and destined to the U.S. Virgin Islands, or if they are destined to the following 3-digit ZIP Code areas in Alaska (or designated portions thereof): 995 (5- ZIP Codes 99540 through 99599), 996, 997, 998, and 999. Since LPCs would replace ADCs, and since DLPC service standards would largely track those currently applied to DSCF volume, for such mail, the shorter of the two service standards (
Furthermore, a 3-day service standard is currently applied to Periodicals pieces that qualify for a DSCF rate and are properly accepted before the day-zero CET at the designated DSCF, if they are entered at the DSCF in Hawaii and are destined to American Samoa; on the other hand, currently a 4-day standard applies to Periodicals pieces that qualify for a DADC rate, are properly accepted before the day-zero CET at the designated DADC, and are destined to American Samoa. For reasons of operational feasibility, under the proposed rule, a 4-day service standard would be applied to Periodicals pieces
Finally, as the service standards themselves have been simplified, the tables depicting day-ranges for non-contiguous states and territories at the end of Part 121 (Tables 2 and 4) likewise have been streamlined. Table 2 reflects the general standards for end-to-end day-ranges for the non-contiguous states and territories, including exceptions for some intermodal transportation. Table 4 reflects the general standards for destination entry day-ranges for the non-contiguous states and territories, including consolidated day-ranges resulting from LPCs and RPDCs superseding SCFs, ADCs, and NDCs.
The Postal Service requests comments on all aspects of the proposal. In particular, the Postal Service solicits comments on the effects that the proposal could have on senders and recipients of the affected market-dominant mail classes. Mail users are encouraged to comment on the nature and extent of costs or savings they might experience as a result of the changes described in this document, as well as any additional possible costs or benefits they foresee, such as increased reliability and predictability. The provision of empirical data supporting any cost-benefit analysis also would be useful. Further, the Postal Service requests mail users' views regarding the application of the policies and requirements of Title 39 of the U.S. Code, particularly sections 101, 403, 404, and 3691, to the proposal. The Postal Service intends to consider comments received in response to this document as it determines whether to amend the service standard regulations and the manner in which any such amendments would be implemented. The Postal Service has also requested an advisory opinion from the Postal Regulatory Commission pursuant to 39 U.S.C. 3661(b).
Although exempt from the document and comment requirements of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites public comments on the proposed revisions to 39 CFR part 121 and on the proposal generally. A more extensive discussion of the proposal and its associated network and service implications is available in the materials filed by the Postal Service with the Postal Regulatory Commission in Docket No. N2024-1, at
Administrative practice and procedure, Postal Service.
Accordingly, for the reasons stated in the preamble, the Postal Service proposes to amend 39 CFR part 121 as follows:
39 U.S.C. 101, 401, 403, 404, 1001, 3691.
Service standards in this part are contingent upon proper acceptance before the applicable day-zero Critical Entry Time (CET). Applying the service standards appearing in this part, effective service standards for combinations of 5-digit originating ZIP Codes and 5-digit destinating ZIP Codes can be found in a lookup table at
(a)
(1)
(2)
(ii) Three service expectation days are added to First-Class Mail if the combined drive time between the originating RPDC, the destinating RPDC, and the destinating LPC is more than 7 hours and not more than 24 hours;
(iii) Four service expectation days are added to First-Class Mail pieces if the combined drive time between the originating RPDC, the destinating RPDC, and the destinating LPC is more than 24 hours and not more than 45 hours; and
(iv) Five service expectation days are added to all remaining First-Class Mail pieces, except that four days are added to any such First-Class Mail for which a day is added under Leg 1.
(3)
(b)
(2) A one-day service standard applies to eligible intra-LPC Presort First-Class Mail pieces accepted at the LPC.
(3) For First-Class Mail that is not USPS Connect® Local Mail, with respect to “turnaround” service for pieces originating and destinating within the same RPDC service area or within the same LPC service area for certain qualifying LPCs (designated by the Postal Service based on operational considerations such as an LPC's distance from its servicing RPDC and volume processed at the LPC):
(i) A two-day service standard applies to:
(A) Eligible Presort First-Class Mail that is not eligible for a one day service standard under paragraph (2) and that originates and destinates in the same RPDC service area; and
(B) Single-Piece First-Class Mail originating in a 5-digit ZIP Code when no facility from which mail is dispatched for the originating 5-digit ZIP Code is over 50 miles in driving distance of the originating RPDC or qualifying LPC and destinates within the same RPDC's or qualifying LPC's service area.
(ii) A three-day service standard applies to Single-Piece First-Class Mail originating in a 5-digit ZIP Code when
(c)
(2) Except as provided in paragraph (3), a one-day service standard applies to:
(i) Eligible intra-LPC Presort First-Class Mail pieces accepted at the LPC, whose origin and destination are outside the contiguous 48 states; and
(ii) All other pieces accepted as USPS Connect® Local Mail.
(3) A two-day service standard applies to:
(i) Eligible Presort First-Class Mail that originates in Puerto Rico and destinates in the U.S. Virgin Islands, or vice versa;
(ii) Eligible intra-LPC Presort First-Class Mail with an origin or destination that is in American Samoa or one of the following 3-digit ZIP Code areas in Alaska (or designated portions thereof): 995 (5-digit ZIP Codes 99540 through 99599), 996, 997, 998, and 999; and
(iii) Other intra-LPC First-Class Mail pieces whose origin and destination are outside the contiguous 48 states, including any other intra-LPC Presort pieces that are not eligible for a one-day service standard.
(4) A four-day service standard applies to First-Class Mail pieces if the same-day, one-day, or two-day service standards do not apply and:
(i) The origin is in the 006, 007, or 009 3-digit ZIP Code areas in Puerto Rico, and the destination is in the contiguous 48 states;
(ii) The origin is in Hawaii, and the destination is in Guam, or vice versa;
(iii) The origin is in Hawaii, and the destination is in American Samoa, or vice versa;
(iv) Both the origin and destination are within Alaska; or
(v) Such mail originates in a 5-digit ZIP Code where no facility from which mail is dispatched for that 5-digit ZIP Code is over 50 miles of driving distance from its originating RPDC, and the origin is in the contiguous 48 states and the destination is in the city of Anchorage, Alaska (5-digit ZIP Codes 99501 through 99539), the 968 3-digit ZIP Code area in Hawaii, or the 006, 007, or 009 3-digit ZIP Code areas in Puerto Rico.
(5) A five-day service standard applies to all remaining domestic First-Class Mail pieces originating and/or destinating outside the contiguous 48 states.
(d)
(2) The service standard for Inbound Letter Post pieces from the first USPS scan is equivalent to the service standard for domestic Single-Piece First-Class Mail pieces destined to the same 5-digit ZIP Code area and originating from the 5-digit ZIP Code area in which the applicable International Service Center, or its functional equivalent, is located.
(a)
(2) For certain end-to-end Periodicals pieces originating and/or destinating outside the contiguous 48 states, a 10- to 27-day service standard applies, with the standard generally equaling the sum of 3 to 6 days plus the number of additional days (from 7 to 21) for which certain intermodal (
(b)
(2)
(ii) A 3-day service standard applies to Periodicals pieces that qualify for a DLPC (or analogous legacy) rate, if they are entered in Puerto Rico and destined to the U.S. Virgin Islands, or if they are destined to the following 3-digit ZIP Code areas in Alaska (or designated portions thereof): 995 (5-digit ZIP Codes 99540 through 99599), 996, 997, 998, and 999.
(iii) A 4-day service standard applies to Periodicals pieces that qualify for a DLPC (or analogous legacy) rate if they are destined to American Samoa.
(3)
(ii) An 8- to 10-day service standard applies to Periodicals pieces that qualify for a DRPDC (or analogous legacy) rate, are entered in the contiguous 48 states, and are destined outside the contiguous 48 states, with the specific standard being based on the number of days required for transportation outside the contiguous 48 states.
(a)
(2) For certain end-to-end USPS Marketing Mail pieces originating and/or destinating outside the contiguous 48 states, an 11- to 28-day service standard applies, with the standard generally equaling the sum of 4 to 7 days plus the number of additional days (from 7 to 21) for which certain intermodal (
(b)
(2) USPS Marketing Mail pieces that qualify for a Destination Local Processing Center (DLPC) (or analogous legacy) rate have a 3-day service standard when accepted on Sunday through Thursday and a 4-day service standard when accepted on Friday or Saturday, except for mail dropped at the LPC in the territory of Puerto Rico and destined to the territory of the U.S.
(3) USPS Marketing Mail pieces that qualify for a DLPC (or analogous legacy) rate and that are entered in the territory of Puerto Rico and destined to the territory of the U.S. Virgin Islands, or that are destined to American Samoa, have a 4-day service standard when accepted on Sunday through Thursday and a 5-day service standard when accepted on Friday or Saturday.
(4) USPS Marketing Mail pieces that qualify for a Destination Regional Processing and Distribution Center or Campus (DRPDC) (or analogous legacy) rate have a 5-day service standard, if both the origin and the destination are in the contiguous 48 states.
(5) USPS Marketing Mail pieces that qualify for a DRPDC (or analogous legacy) rate, and that are entered in the contiguous 48 states for delivery to addresses in the states of Alaska or Hawaii or the territories of Guam, American Samoa, Puerto Rico, or the U.S. Virgin Islands, have a service standard of 12-14 days, depending on the 3-digit origin-destination ZIP Code pair. For each such pair, the applicable day within the range is based on the number of days required for transportation outside the contiguous 48 states.
(a)
(2) For certain end-to-end Package Services pieces originating and/or destinating outside the contiguous 48 states, an 11- to 29-day service standard applies, with the standard generally equaling the sum of 4 to 7 days plus the number of additional days (from 7 to 22) for which certain intermodal (
(b)
(2) Package Services mail that qualifies for a Destination Local Processing Center (DLPC) (or analogous legacy) rate has a 2-day service standard, except for mail that is destined to either American Samoa or the U.S. Virgin Islands.
(3) Package Services mail that qualifies for a DLPC rate, and that is destined to either American Samoa or the U.S. Virgin Islands, has a 3-day service standard.
(4) Package Services mail that qualifies for a Destination Regional Processing and Distribution Center or Campus (DRPDC) (or analogous legacy) rate, and that originates and destinates in the contiguous 48 states, has a 3-day service standard.
(5) Package Services mail that qualifies for a DRPDC (or analogous legacy) rate, and that is entered in the contiguous 48 states for delivery to addresses in the states of Alaska or Hawaii, or the territories of Guam, American Samoa, Puerto Rico, or the U.S. Virgin Islands, has a service standard of either 11 or 12 days, depending on the 3-digit ZIP Code origin-destination pair. For each such pair, the applicable day within the range is based on the number of days required for transportation outside the contiguous 48 states.
The following tables reflect the service standard day ranges resulting from the application of the business rules applicable to the market-dominant mail products referenced in §§ 121.0 through 121.4 (for purposes of Part 121, references to the contiguous states or the contiguous 48 states also include the District of Columbia):
Table 1. End-to-end service standard day ranges for mail originating and destinating within the contiguous 48 states and the District of Columbia.
Table 2. End-to-end service standard day ranges for mail originating and/or destinating in non-contiguous states and territories.
Table 3. Destination-entry service standard day ranges for mail to the contiguous 48 states and the District of Columbia.
Table 4. Destination entry service standard day ranges for mail to non-contiguous states and territories.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to determine that the Washington, DC-MD-VA nonattainment area (the Washington Area or the Area) has attained the 2015 8-hour ozone national ambient air quality standards (2015 ozone NAAQS) by the applicable attainment date of August 3, 2024. Accompanying this proposed determination of attainment by the attainment date is a re-proposed clean data determination (CDD) under the EPA's Clean Data Policy. If finalized, this action will address the EPA's obligation under Clean Air Act (CAA) sections 179(c) and 181(b)(2) to determine whether the Washington Area attained the 2015 ozone NAAQS by the August 3, 2024 attainment date and, as set forth in the EPA's Clean Data Policy, suspend the obligation of the District of Columbia (DC), the State of Maryland (MD), and the Commonwealth of Virginia (VA) to submit certain attainment planning requirements for as long as the Area continues to attain the 2015 ozone NAAQS. As part of this rulemaking, the EPA also proposes to take final agency action on an exceptional events request submitted by the District of Columbia on March 20, 2024, and concurred on by the EPA on July 17, 2024. The proposed attainment determination and CDD are based upon the EPA's concurrence on the exceptional events demonstration. This action is being taken under the CAA.
Written comments must be received on or before December 16, 2024.
Submit your comments, identified by Docket ID No. EPA-R03-OAR-2022-0987 at
Ian Neiswinter, Planning & Implementation Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection Agency, Region III, 1600 John F Kennedy Boulevard, Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-2011. Mr. Neiswinter can also be reached via electronic mail at
This proposed determination is based upon quality-assured, quality-controlled, and certified ambient air monitoring data from 2021 to 2023 available in the EPA's Air Quality System (AQS) database.
On October 26, 2015 (80 FR 65292), the EPA promulgated a revised primary and secondary ozone NAAQS to provide requisite increased protection of public health and welfare, respectively. In that action, the EPA strengthened both standards from 0.075 parts per million (ppm) to 0.070 ppm and retained the indicator (ozone), averaging time (8-hour), and form (annual fourth-highest daily maximum, averaged over three years) of the existing standards. Effective August 3, 2018 (83 FR 25776, June 4, 2018), the EPA designated 52 areas throughout the country as nonattainment for the 2015 ozone NAAQS, including the Washington Area,
Effective November 7, 2022 (87 FR 60897), the EPA determined that 22 Marginal areas or portions of areas failed to attain the standard by the applicable Marginal attainment date, including the Washington Area. In that action, the EPA reclassified the Washington Area as Moderate nonattainment for the 2015 ozone NAAQS because it failed to attain the standard by the attainment date of August 3, 2021. That designation was based on quality-assured, quality-controlled, and certified ambient air monitoring data from calendar years 2018 to 2020. In that same action, the EPA established the Moderate attainment date as August 3, 2024.
On February 1, 2023 (88 FR 6688), the EPA proposed a CDD for the Washington Area based on quality-assured, quality-controlled, and certified ambient air quality monitoring data showing the Area attained the 2015 ozone NAAQS based on 2019 to 2021 data. The EPA did not finalize that action due to a monitored violation of the 2015 ozone NAAQS prior to final approval.
Congress has recognized that it may not be appropriate for the EPA to use certain monitoring data collected by the ambient air quality monitoring network and maintained in the EPA's AQS database in certain regulatory determinations. Thus, in 2005, Congress provided the statutory authority for the exclusion of data influenced by “exceptional events” meeting specific criteria by adding section 319(b) to the CAA and granted the EPA with the authority to propose regulations to review and manage air quality monitoring data influenced by exceptional events.
On March 22, 2007 (72 FR 13560), the EPA promulgated the 2007 Exceptional Events Rule in order to implement this 2005 CAA amendment. The 2007 Exceptional Events Rule created a regulatory process codified at 40 CFR parts 50 and 51 (§§ 50.1, 50.14, and 51.930). These regulatory sections, which superseded the EPA's previous guidance on handling data influenced by exceptional events, contain definitions, procedural requirements, requirements for air agency demonstrations, criteria for the EPA's approval of the exclusion of event-affected air quality data from the data set used for regulation decisions, and requirements for air agencies to take appropriate and reasonable actions to protect public health from exceedances and violations of the NAAQS. On October 3, 2016 (81 FR 68216), the EPA promulgated a comprehensive revision to the 2007 Exceptional Events Rule. The 2016 Exceptional Events Rule revision included the requirement that, if a State demonstrates to the Administrator's satisfaction that emissions from a wildfire smoke event cause a specific air pollution concentration in excess of the NAAQS at a particular air quality monitoring location and otherwise satisfies the requirements of 40 CFR 50.14, the EPA must exclude that data from use in determinations of exceedances and violations.
The CAA provides for the exclusion of air quality monitoring data from design value (DV) calculations when there are NAAQS exceedances caused by events, such as wildfires, that meet the criteria for an exceptional event identified in the EPA's Exceptional Events Rule at 40 CFR 50.1, 50.14, and 51.930. For the purposes of this proposed action, on March 20, 2024, DOEE on behalf of DC submitted an exceptional events demonstration to show that the maximum daily 8-hour average ozone concentration recorded at the McMillan monitor (AQS Site ID #110010043) on June 29, 2023, was influenced by Canadian wildfires. The EPA concurred on this request on July 17, 2024.
The EPA found that DOEE's demonstration met the Exceptional Events Rule criteria and determined that wildfire smoke events had regulatory significance for purposes of calculating the Area's most recent design value to make a determination of attainment by the attainment date and a CDD for the 2015 ozone NAAQS. As such, the EPA proposes to take final regulatory action on the concurred date, as an exceptional event to be removed from the dataset used for regulatory purposes. The rationale of the EPA's exceptional events proposal is detailed in the docket. For this proposed action, the EPA will rely on the calculated design values that exclude the event-influenced data for the purpose of demonstrating attainment of the 2015 ozone NAAQS. Further details on DOEE's analyses and the EPA's concurrence, including the exceptional events initial notification, exceptional events demonstration, and the EPA's response to the initial notification can be found in the docket for this regulatory action.
While the EPA has concurred with DOEE's request to exclude event-influenced air quality monitoring data from regulatory decisions, these regulatory actions require the EPA to provide an opportunity for public comment on the claimed exceptional events and all supporting data prior to the EPA taking final agency action. This proposed action provides the public with an opportunity to comment on the claimed exceptional events, all supporting documents, and the EPA's concurrence with DOEE's request.
Sections 179(c)(1) and 181(b)(2)(A) of the CAA require the EPA to determine whether an ozone nonattainment area attained the ozone standard by the applicable attainment date. The EPA is required to issue this determination within six months of the attainment date. Because the ozone NAAQS is a concentration-based standard, a determination of attainment is based on a nonattainment area's DV as of the attainment date.
As such, the EPA's proposed determination for the Area is based upon the complete, quality-assured, quality-controlled, and certified ozone monitoring data from calendar years 2021, 2022, and 2023. The EPA's determination of attainment is based upon data that have been collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA's AQS database.
As detailed in section III.C of this document, the EPA has evaluated the relevant data and determined that the Washington Area attained the 2015 Ozone NAAQS by the Moderate area attainment date of August 3, 2024, based on the area's 2021-2023 DV. Notably, a determination of attainment by the attainment date does not constitute formal redesignation to attainment as provided for under CAA section 107(d)(3). Redesignations to attainment require, among other things, that the States responsible for ensuring attainment and maintenance of the NAAQS have met the applicable requirements under CAA section 110 and part D, and to submit to the EPA for approval a maintenance plan to ensure continued attainment of the standard for 10 years following redesignation, as provided under CAA section 175A.
Following the enactment of the CAA Amendments of 1990, the EPA discussed its interpretation of the requirements for implementing the NAAQS in the “General Preamble for the Implementation of title I of the CAA Amendments of 1990” (General Preamble).
The EPA may issue a CDD under the EPA's Clean Data Policy when a nonattainment area is attaining the 2015 ozone NAAQS based on the most recent available data. The EPA will determine whether the area has attained the 2015 ozone NAAQS based on available information, including air quality monitoring data for the affected area. If the CDD is made final, then certain attainment plan requirements for the area are suspended for so long as the area continues to attain the NAAQS.
Furthermore, the suspension of the obligation to submit an attainment plan is only appropriate where the area remains in attainment of the NAAQS. A CDD under the Clean Data Policy does not serve to alter the area's nonattainment designation. The EPA will not take final action on the CDD for the Washington Area if the design value of a monitoring site within the Area violates the 2015 ozone NAAQS prior to final approval of the CDD. CDDs are not redesignations to attainment. As noted above, for the EPA to redesignate an area to attainment the State must submit, and the EPA must approve, a redesignation request for the area that meets the requirements of CAA section 107(d)(3).
The EPA has reviewed the ambient air monitoring data for ozone, consistent with the requirements contained in 40 CFR part 50 and recorded in the EPA's AQS database for the Washington Area from 2021 through 2023. That data is detailed in tables 1 through 3 of this document. On the basis of that review, the EPA has concluded that the Washington Area attained the 2015 ozone NAAQS by the applicable attainment date (August 3, 2024) based on quality-assured, quality-controlled, and certified ozone data from 2021 to 2023. Prior DVs from the monitoring periods 2019-2021 and 2020-2022 further support the EPA's conclusion that the area attained the 2015 ozone NAAQS.
As stated previously, under the EPA's regulations, the 2015 ozone NAAQS is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations at an ozone monitor is less than or equal to 0.070 ppm.
The data completeness requirement in 40 CFR part 50, appendix U, is met when the average percentage of days with valid ambient monitoring data is greater than 90% and no single year is less than 75% data complete. The Washington Area has complete data for the years 2019 to 2023, as shown in table 1 in this document, except for the Takoma Recreation Center monitor (AQS Site ID #110010050).
Due to building repairs, the Takoma Recreation Center monitoring operations were temporarily halted from April 28 to October 7, 2022. During this timeframe, the DC Department of Parks and Recreation began repairing the Takoma Recreation Center station's roof, forcing the site's closure.
The Takoma Recreation Center monitoring site (AQS ID #110010050) had a valid attaining design value in 2019-2021 of 0.066 ppm. The Takoma Recreation Center monitoring site has attained the 2015 ozone NAAQS standard of 0.070 ppm since 2016. Based on the monitoring history for this site and other sites in the Area, the EPA reasonably concludes that the Takoma Recreation Center monitoring site would not have exceeded the 2015 ozone NAAQS standard for the 2020-2022 or 2021-2023 DVs. For each monitor site in the area, except for the Takoma Recreation Center, the average completeness data percentage from 2019-2021, 2020-2022 and 2021-2023 is greater than 90% and no single monitor year is below 75% complete.
Table 2 in this document shows the fourth-highest maximum 8-hour average ozone concentrations for the Washington Area monitors in each of the years 2019 to 2023. Table 3 in this document shows the ozone DV for these same monitors based on the average of the fourth-highest maximum 8-hour average ozone concentrations for the 2019-2021, 2020-2022, and 2021-2023 3-year periods.
The EPA's review of these data indicates that the 2021-2023 DV at each of the Washington Area's monitors that has valid 2021-2023 data met the attainment standard of 0.070 ppm, excluding the exceptional event impacted monitoring day summarized in section II of this document.
The EPA is proposing to determine that the Washington moderate ozone nonattainment area has attained the 2015 8-hour ozone NAAQS by the attainment date of August 3, 2024. This proposed determination is based upon complete, quality-assured, quality-controlled, and certified ambient air monitoring data that show the Washington Area has monitored attainment of the 2015 8-hour ozone NAAQS for the 2021-2023 monitoring period, including an evaluation of an exceptional events demonstration. If finalized, this action will address the EPA's obligation under CAA sections 179(c) and 181(b)(2) to determine whether the Washington Area attained the 2015 ozone NAAQS by the August 3, 2024 attainment date.
The EPA is also re-proposing to determine that the Area has clean data, consistent with Agency policy described above. As provided in 40 CFR 51.1318, if the EPA finalizes this CDD, it would suspend the requirements for such area to submit attainment demonstrations, associated RACM, RFP plans, and contingency measures under CAA section 172(c)(9), and any other planning State implementation plan revision related to attainment of the 2015 8-hour ozone NAAQS for this Area, for so long as the Area continues to attain the standard. Finalizing either the attainment determination or CDD does not constitute a redesignation of the Washington Area to attainment for the 2015 8-hour ozone NAAQS under CAA section 107(d)(3). This action also does not involve approving any maintenance plan for the Washington Area and does not determine that the Washington Area has met all the requirements for redesignation under the CAA, including that the attainment
The EPA also proposes to take final agency action on an exceptional events request submitted by DC on March 20, 2024, and concurred on by the EPA on July 17, 2024.
The EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. The EPA previously received comments on the 2023 CDD Proposal (88 FR 6688, February 1, 2023). In re-proposing the CDD, the EPA will consider all comments received on the 2023 CDD Proposal as the Agency moves forward with the current rulemaking. Accordingly, commenters need not submit duplicate comments on the current proposal.
This rulemaking proposes to make an attainment determination based on air quality data and would, if finalized, result in the suspension of certain Federal requirements and would not impose any additional requirements. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.
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 EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income population, and Indigenous peoples.
In addition, this action for the Washington Area does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because this action is not approved to apply in Indian country located in the Washington Area, and the EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements.
Defense Acquisition Regulations System, Department of Defense (DoD).
Proposed rule.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2019, which prohibits DoD from acquiring products, services, or systems relating to information or operational technology, cybersecurity, industrial control systems, or weapon systems through a contract unless the offeror or contractor provides disclosures related to sharing source code and computer code with foreign governments.
Comments on the proposed rule should be submitted in writing to the address shown below on or before January 14, 2025, to be considered in the formation of a final rule.
Submit comments identified by DFARS Case 2018-D064, using either of the following methods:
○
○
Comments received generally will be posted without change to
Ms. Heather Kitchens, telephone 571-296-7152.
DoD is proposing to revise the DFARS to implement section 1655(a) and (c) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232). Section 1655(a) prohibits DoD from acquiring products, services, or systems relating to information or operational technology, cybersecurity, industrial control systems, or weapon systems through a contract unless the offeror or contractor provides disclosures related to sharing source code and computer code with foreign governments. Section 1655(c) requires contracts for those products, services, or systems to include a clause requiring the disclosures during the contract period of performance if an entity becomes aware of information requiring disclosure.
The first part of the disclosure is related to whether, after August 12, 2013, the entity making the disclosure has allowed, or is under an obligation to allow, a foreign government to review the code of a noncommercial product, system, or service developed for DoD. The second part of the disclosure pertains to whether, after August 12, 2013, the entity making the disclosure has allowed, or is under an obligation to allow, a foreign government in a list required by section 1654 of the NDAA for FY 2019 to review the source code of a product, system, or service that DoD is using or intends to use.
The third part of the disclosure is related to whether the entity making the disclosure holds or has sought a license pursuant to the Export Administration Regulations (15 CFR chapter VII, subchapter C), the International Traffic in Arms Regulations (22 CFR chapter I, subchapter M), or successor regulations, for information technology products, components, software, or services that contain code custom-developed for the noncommercial product, system, or service DoD is using or intends to use.
Once the disclosures are provided to DoD, and if the Secretary of Defense determines that the disclosure relating to a product, system, or service entails a risk to the national security infrastructure or data of the United States, or any national security system under the control of DoD, section 1655 requires the Secretary to take such measures as the Secretary considers appropriate to mitigate such risks. In addition, as the Secretary considers appropriate, the Secretary may condition any agreement for the use, procurement, or acquisition of the product, system, or service on the inclusion of enforceable conditions or requirements that would mitigate such risks.
This proposed rule includes a new subpart, 239.7X, Disclosure of Information Regarding Foreign Obligations. Section 239.7X00 describes the statutory requirement implemented in the new subpart. Section 239.7X01 includes new definitions of computer code, open source software, and source code. The new subpart includes the section 1655 prohibition at 239.7X02. Section 239.7X03 clarifies that the prohibition does not apply to open source software.
A section on procedures was added at 239.7X04 to require contracting officers to validate in the Catalog Data Standard within the Electronic Data Access (EDA) system (
Section 239.7X05 provides prescriptions for a new solicitation provision and contract clause. The new provision is prescribed for use in solicitations that include the clause at 252.239-70ZZ, Postaward Disclosure of Foreign Obligations. The new clause is prescribed for use in solicitations and contracts, task orders, or delivery orders, for the acquisition of products, services, or systems relating to information or operational technology, cybersecurity, industrial control systems, or weapon systems, including those using Federal Acquisition Regulation (FAR) part 12 procedures for the acquisition of commercial products and commercial services.
The purpose of the provision at 252.239-70YY, Preaward Disclosure of Foreign Obligations—Representation, is to notify offerors that they will be required to make disclosures within the Catalog Data Standard in the Electronic Data Access (EDA) system (
The purpose of the clause at 252.239-70ZZ, Postaward Disclosure of Foreign Obligations, is to require contractors to maintain their disclosures in the Catalog Data Standard within EDA and flow down the requirement to maintain disclosures in the Catalog Data Standard within EDA to subcontractors. Similar to the provision, while there are three distinct disclosures, the clause identifies the first and second disclosures in one paragraph at 252.239-70XX, paragraph (b)(1), for clarity. The third disclosure is identified at paragraph (b)(2). The clause also requires contractors to require their subcontractors to complete foreign obligation disclosures in the Catalog Data Standard in EDA prior to awarding the subcontract.
Language was added at part 212 to apply the provision and clause to the acquisition of commercial products and commercial services. In part 213, language was added to apply the requirement to disclose foreign obligations will be applied at or below the micro-purchase threshold. Language was also added at part 217 to instruct the contracting officer exercise options only after verifying in the Catalog Data Standard in the EDA system (
This proposed rule proposes a new provision and clause to implement the requirements of section 1655 of the NDAA for FY 2019: (1) DFARS 252.239-70YY, Preaward Disclosure of Foreign Obligations-Representation; and (2) DFARS 252.239-70ZZ, Postaward Disclosure of Foreign Obligations. The provision at DFARS 252.239-70YY is prescribed at DFARS 239.7X05(a) for use in solicitations that include the clause at DFARS 252.239-70ZZ. The clause at DFARS 252.239-70ZZ is prescribed at DFARS 239.7X05(b) for use in solicitations and contracts for the acquisition of products, services, or
The statute at 41 U.S.C. 1905 governs the applicability of laws to contracts or subcontracts in amounts not greater than the simplified acquisition threshold. It is intended to limit the applicability of laws to such contracts or subcontracts. The statute at 41 U.S.C. 1905 provides that if a provision of law contains criminal or civil penalties, or if the Federal Acquisition Regulatory Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT, the law will apply to them. The Principal Director, Defense Pricing, Contracting, and Acquisition Policy (DPCAP), is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations. DoD does intend to make that determination. Therefore, this proposed rule will apply at or below the simplified acquisition threshold.
The statute at 10 U.S.C. 3452 exempts contracts and subcontracts for the acquisition of commercial products including COTS items, and commercial services from provisions of law enacted after October 13, 1994, unless the Under Secretary of Defense (Acquisition and Sustainment) (USD(A&S)) makes a written determination that it would not be in the best interest of DoD to exempt contracts for the procurement of commercial products and commercial services from the applicability of the provision or contract requirement, except for a provision of law that—
• Provides for criminal or civil penalties;
• Requires that certain articles be bought from American sources pursuant to 10 U.S.C. 4862, or that strategic materials critical to national security be bought from American sources pursuant to 10 U.S.C. 4863; or
• Specifically refers to 10 U.S.C. 3452 and states that it shall apply to contracts and subcontracts for the acquisition of commercial products (including COTS items) and commercial services.
The statute implemented in this proposed rule does not impose criminal or civil penalties, does not require purchase pursuant to 10 U.S.C. 4862 or 4863, and does not refer to 10 U.S.C. 3452. Therefore, section 1655 of the NDAA for FY 2019 will not apply to the acquisition of commercial services or commercial products including COTS items unless a written determination is made. Due to delegations of authority, the Principal Director, DPCAP is the appropriate authority to make this determination. DoD intends to make that determination to apply this statute to the acquisition of commercial products including COTS items and to the acquisition of commercial services. Therefore, this proposed rule will apply to the acquisition of commercial products including COTS items and to the acquisition of commercial services.
Given that the requirements of section 1655 of the NDAA for FY 2019 were enacted to require disclosures of foreign obligations by contractors for contracts that include products, services, or systems relating to information or operational technology, cybersecurity, industrial control systems, or weapon systems and since products, services, or systems related to information or operational technology, cybersecurity, industrial control systems or weapon systems can include COTS items and awards at or below the SAT, it is in the best interest of the Federal Government to apply the statute to contracts for the acquisition of commercial services and commercial products, including COTS items, as defined at Federal Acquisition Regulation 2.101 and awards that are at or below the SAT. An exception for contracts for the acquisition of commercial services and commercial products, including COTS items, or for contracts or subcontracts valued at or below the SAT, would exclude the contracts intended to be covered by the law, thereby undermining the overarching public policy purpose of the law.
The proposed rule implements section 1655 of the NDAA for FY 2019, which prohibits DoD from acquiring products, services, or systems relating to information or operational technology, cybersecurity, industrial control systems, or weapon systems through a contract unless the offeror or contractor provides disclosures related to sharing source code and computer code with foreign governments. Based on data from the Federal Procurement Data System, DoD issued approximately 36,677 new awards for information technology and weapon systems to approximately 4,147 unique entities per year on average from FY 2021 through FY 2023. DoD assumes this number will cover awardees for information or operational technology, cybersecurity, industrial control systems, and weapon systems, as there is no way to track individual awards for operational technology, industrial control systems, and cybersecurity. Of the 4,147 unique entities, on average, that received awards each year, an average of approximately 17,100 awards were made to 2,667 unique small entities from FY 2021 through FY 2023. DoD assumes that the clause will apply to the estimated 4,147 unique entities, including the 2,667 unique small entities.
DoD does not have a way to track the number of unique offerors per award, so DoD estimates that the number of offerors is the number of unique entities that received awards (
The proposed changes will require offerors for products, services, or systems related to information or operational technology, cybersecurity, industrial control systems, or weapon systems to make certain disclosures in the Catalog Data Standard within EDA (
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety
DoD does not expect this proposed rule, when finalized, 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,
This proposed rule is necessary to implement section 1655 of the NDAA for FY 2019. Section 1655 prohibits DoD from using a product, service, or system relating to information or operational technology, cybersecurity, industrial control systems, or weapon systems provided by an entity unless that entity makes certain disclosures. The disclosures required by the statute have three parts.
The first part of the disclosures is related to whether, since August 12, 2013, the entity making the disclosure has allowed, or is under an obligation to allow, a foreign government to review the code of an other than commercial product, system, or service developed for DoD. The second part of the disclosure pertains to whether, since August 12, 2013, the entity making the disclosure has allowed, or is under an obligation to allow, a foreign government in the list required by section 1654 of the NDAA for FY 2019 to review the source code of a product, system, or service that DoD is using or intends to use. The third part of the disclosure is related to whether the entity making the disclosure holds or has sought a license pursuant to the Export Administration Regulations (15 CFR chapter VII, subchapter C), the International Traffic in Arms Regulations (22 CFR chapter I, subchapter M), or successor regulations, for information technology products, components, software, or services that contain code custom-developed for the other than commercial product, system, or service DoD is using or intends to use.
Once the disclosures are provided to DoD, and if the Secretary of Defense determines that the disclosure relating to a product, system, or service entails a risk to the national security infrastructure or data of the United States, or any national security system under the control of DoD, section 1655 requires the Secretary to take such measures as the Secretary considers appropriate to mitigate such risks.
The objective of this proposed rule is to implement the statutory requirement for offeror, contractor, and subcontractor disclosures under section 1655 of the NDAA for FY 2019 prior to award and during contract performance. The legal basis for the proposed rule is section 1655 of the NDAA for FY 2019.
The proposed rule applies to offerors, contractors, and subcontractors for information or operational technology, cybersecurity, industrial control systems, or weapon systems. Based on data from the Federal Procurement Data System, DoD issued approximately 36,677 awards to 4,147 entities, of which 17,100 awards were made to 2,667 small entities, for information technology and weapon systems, on average, from FY 2021 through FY 2023. DoD assumes these numbers will cover small entities awarded contracts for products, services, or systems relating to information or operational technology, cybersecurity, industrial control systems, and weapon systems, as there is no way to track individual awards for operational technology, cybersecurity, and industrial control systems. In order to estimate the number of offerors for information or operational technology, cybersecurity, industrial control systems, and weapon systems, DoD assumes the number of offerors will be the 4,147 awardees multiplied by a factor of three, or 12,441 offerors, of which 8,002 are estimated to be small entities.
This proposed rule does impose new reporting, recordkeeping, or other compliance requirements for small entities. These reporting requirements would apply to any offerors that are small entities for a contract for information or operational technology, cybersecurity, industrial control systems, and weapon systems. These small entities will be required to make disclosures within the Catalog Data Standard within the EDA system (
The proposed rule does not duplicate, overlap, or conflict with any other Federal rules.
There are no known alternatives that would accomplish the stated objectives of the applicable statute.
DoD invites comments from small business concerns and other interested parties on the expected impact of this proposed rule on small entities.
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this proposed rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2018-D064) in correspondence.
This proposed rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). Accordingly, DoD has submitted a request for approval of a new information collection requirement concerning DFARS Case 2018-D064, Disclosure of Information Regarding Foreign Obligations, to the Office of Management and Budget.
Public reporting burden for this collection of information is estimated to average 0.5 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
The annual reporting burden is estimated as follows:
Written comments and recommendations on the proposed information collection, including suggestions for reducing this burden, should be submitted using the Federal eRulemaking Portal at
Public comments are particularly invited on: whether this collection of information is necessary for the proper performance of the functions of DoD, including whether the information will
To obtain a copy of the supporting statement and associated collection instruments, please email
Government procurement.
Therefore, the Defense Acquisition Regulations System proposes to amend 48 CFR parts 212, 213, 217, 239, and 252 as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(f) * * *
(xvi) * * *
(E) Use the provision at 252.239-70YY, Preaward Disclosure of Foreign Obligations—Representation, as prescribed in 239.7X05(a), to comply with section 1655 of the National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232).
(F) Use the clause at 252.239-70ZZ, Postaward Disclosure of Foreign Obligations, as prescribed at 239.7X05(b), to comply with section 1655 of the National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232).
Do not procure or obtain, or exercise an option or otherwise extend a contract relating to, information or operational technology, cybersecurity, industrial control systems, or weapon systems from a contractor, including through a subcontractor at any tier, unless the contractor completes all foreign obligation disclosures in the Catalog Data Standard within the Electronic Data Access system (
(c) * * *
(3) Verifying in the Catalog Data Standard in the Electronic Data Access system (
This section implements the foreign obligation disclosure requirements of section 1655(a) and (c) of the National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232).
As used in this subpart—
(a) Contracting officers shall not procure or obtain, or exercise an option or otherwise extend a contract to procure or obtain, any products, services, or systems relating to information or operational technology, cybersecurity, industrial control systems, or weapon systems through a contract or subcontract at any tier from a prospective contractor unless the offeror or contractor makes the disclosures required by section 1655 of the NDAA for FY 2019.
(b) Contracting officers shall ensure that they do not violate the prohibition by using the provision at 252.239-70YY and the clause at 252.239-70ZZ, as prescribed. The provision requires offerors to provide the required foreign obligation disclosures, and the clause ensures that contractors provide updates to foreign obligation disclosures for the life of the contract.
The prohibition at 239.7X02 does not apply to open source software.
(a) Contracting officers shall not award a contract, task order, or delivery order for information or operational technology, cybersecurity, industrial control systems, or weapon systems, unless the prospective contractor has completed all of the foreign obligation disclosures in the Catalog Data Standard within the Electronic Data Access (EDA) system (
(b) Contracting officers shall not exercise an option or extend the period of performance on a contract, task order, or delivery order for information or operational technology, cybersecurity, industrial control systems, or weapons systems, unless the contractor has completed all of the foreign obligation disclosures in the Catalog Data Standard within the EDA system (see 239.7X02).
(c) Contracting officers shall work with the program office to validate that the offeror has completed all of the foreign obligation disclosures in the Catalog Data Standard within the EDA system.
(d) Contracting officers shall follow agency procedures, as applicable, in the event that the program office notifies the contracting officer that additional steps must be taken prior to award based on information disclosed in EDA.
(a) Use the provision at 252.239-70YY, Preaward Disclosure of Foreign Obligations—Representation, in solicitations that include the clause at 252.239-70ZZ.
(b) Use the clause at 252.239-70ZZ, Postaward Disclosure of Foreign Obligations, in solicitations and contracts, task orders, or delivery orders, including those using FAR part 12 procedures for the acquisition of commercial products and commercial services, for the acquisition of products, services, or systems relating to information or operational technology, cybersecurity, industrial control systems, or weapon systems.
As prescribed in 239.7X05(a), use the following provision:
(a)
(b)
(c)
(1) Whether, and if so, when, at any time after August 12, 2013, the Offeror—
(i) Has allowed a foreign person or foreign government to review the source code for any product, system, or service that DoD is using or intends to use, or the computer code for any other than commercial product, system, or service developed for DoD; or
(ii) Is under any obligation to allow a foreign person or foreign government to review, as a condition of entering into an agreement for sale or other transaction with a foreign government or with a foreign person on behalf of such a government—
(A) The source code for any product, system, or service that DoD is using or intends to use; or
(B) The computer code for any other than commercial product, system, or service developed for DoD; and
(2) Whether or not the Offeror holds or has sought a license pursuant to the Export Administration Regulations (15 CFR chapter VII, subchapter C) or the International Traffic in Arms Regulations (22 CFR chapter I, subchapter M) for information technology products, components, software, or services that contain computer code custom-developed for the other than commercial product, system, or service DoD is procuring.
(d)
(e)
As prescribed in 239.7X05(b), use the following clause:
(a)
(b)
(c)
(1) Whether, and if so, when, at any time after August 12, 2013, the Contractor—
(i) Has allowed a foreign person or foreign government to review the source code for any product, system, or service that DoD is using or intends to use, or the computer code for any other than commercial product, system, or service developed for DoD;
(ii) Is under any obligation to allow a foreign person or foreign government to review, as a condition of entering into an agreement for sale or other transaction with a foreign government or with a foreign person on behalf of such a government—
(A) The source code for any product, system, or service that DoD is using or intends to use; or
(B) The computer code for any other than commercial product, system, or service developed for DoD; and
(2) Whether or not the supplier holds or has sought a license pursuant to the Export Administration Regulations (15 CFR chapter VII, subchapter C) or the International Traffic in Arms Regulations (22 CFR chapter I, subchapter M) for information technology products, components, software, or services that contain computer code custom-developed for the other than commercial product, system, or service DoD is using or intends to use.
(d)
(e)
(f)
(g)
(1) Insert the substance of this clause, including this paragraph (g), in subcontracts, or other contractual instruments, for the acquisition of products, services, or systems relating to information or operational technology, cybersecurity, industrial control systems, or weapon systems, including those for commercial products and commercial services; and
(2) Require the subcontractor to complete the foreign obligation disclosures in EDA prior to awarding a subcontract.
Agency for International Development (USAID).
Notice of information collection.
The U.S. Agency for International Development's Innovation, Technology, and Research Hub invites the general public to review this new information collection. This survey is administered by the USAID Innovation, Technology, and Research Hub's Technology Division. Responses to this survey will be used to select the winners of the 2025 Digital Development Awards once the application opens next year. The Digital Development Awards recognize and celebrate USAID-funded projects and activities that harness the power of digital technology to promote inclusive growth.
All comments should be submitted in writing by January 14, 2025.
To access and review the Google Form, please visit
For specific questions related to this collection, please contact John O'Bryan at
The Digital Development Awards recognize and celebrate USAID-funded projects and activities that embrace the Agency's strategic goals of improving development and humanitarian assistance outcomes through the use of digital technology and strengthening open, secure, and inclusive digital ecosystems.
Forest Service, Agriculture (USDA).
Notice of meeting.
The Northwest Forest Plan Advisory Committee will hold a public meeting according to the details shown below. The Committee is authorized under the National Forest Management Act (the Act) and operates in compliance with the Federal Advisory Committee Act (FACA). The purpose of the Committee is to provide advice and pragmatic recommendations regarding potential regional scale land management planning approaches and solutions within the Northwest Forest Plan Area within the context of the 2012 planning rule.
An in-person and virtual meeting will be held on December 10, 2024, 8:30 a.m.-4:30 p.m. Pacific Standard Time (PST), December 11, 2024, 8:30 a.m.-4:30 p.m. PST, and December 12, 2024, 8:30 a.m.-12:00 p.m. PST.
All committee 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 Hotel Leo, 1224 Cornwall Ave., Bellingham, WA 98225. Committee information and meeting details can be found at the following website:
Jacqueline Buchanan, Designated Federal Officer (DFO), by phone at 303-275-5452 or email at
The purpose of the meeting is to:
1. Provide recommendations for updates to the Northwest Forest Plan to the Forest Service.
2. Schedule the next meeting.
The agenda will include time for individuals to make in-person oral statements of three minutes or less. Individuals wishing to make an oral statement should make a request in writing by 11:59 p.m. PST on December 2, 2024. Written comments may be submitted to the Forest Service up to 14 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 Committee. To ensure that the recommendations of the Committee have taken in 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 Hood-Willamette Resource Advisory Committee (RAC) will hold a public meeting according to the details shown below. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act, as well as make recommendations on recreation fee proposals for sites on the Mt. Hood and Willamette National Forests within Clackamas, Douglas, Hood River, Jefferson, Lane, Linn, Marion, Multnomah, and Wasco Counties, consistent with the Federal Lands Recreation Enhancement Act.
An in-person and virtual meeting will be held on December 2, 2024, 9 a.m. to 4 p.m., Pacific Standard Time.
All committee 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 Keizer Civic Center, located at 930 Chemawa Road Northeast, Keizer, Oregon 97303. The public may also join the meeting virtually via teleconference or videoconference online at
Meta Loftsgaarden, Designated Federal Officer, by phone at (971) 378-9704 or email at
The purpose of the meeting is to:
1. Elect a Chairperson;
2. Hear from Title II project proponents and discuss Title II project proposals;
3. Make funding recommendations on Title II projects;
4. Approve meeting minutes; and
5. Schedule the next meeting
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 14 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
Equal opportunity practices in accordance with USDA's policies will be followed in all appointments to the committee. To ensure that the recommendations of the committee have taken into account the needs of the diverse groups served by the USDA, membership shall include, to the extent practicable, individuals with demonstrated ability to represent the many communities, identities, races, ethnicities, backgrounds, abilities, cultures, and beliefs of the American people, including underserved communities. USDA is an equal opportunity provider, employer, and lender.
Natural Resources Conservation Service, U.S. Department of Agriculture (USDA).
Notice of availability; record of decision.
This notice of availability presents the Record of Decision (ROD) on a Watershed Project Plan—Programmatic Environmental Impact Statement (Plan-PEIS) for the West Fork Kickapoo (WFK) Watershed prepared in partnership with Monroe and Vernon Counties, Wisconsin (Sponsors). This notice announces the plan to proceed with the implementation of Alternative 7—Proposed Action—Decommission All Dams and Replace Jersey Valley County Park Dam (WFK-1) with a high hazard, multi-purpose dam, identified in the Plan-PEIS. Alternative 7 proposes to decommission dams by excavating a notch to pass the 100-year flood without impounding water. It also proposes to replace WFK-1 with a high hazard, multi-purpose dam approximately 1,000 feet downstream of the existing dam. This action will avoid environmental impacts to the extent possible and mitigate impacts that are unavoidable.
You may request a copy of the ROD from: Steve Becker, NRCS State Conservation Engineer, 8030 Excelsior Drive, Suite 200, Madison, WI 53717.
Steve Becker; telephone: (608) 400-6176; or email:
Natural Resources Conservation Service (NRCS) has prepared a ROD following completion of the Plan-PEIS. The Plan-PEIS provides a retrospective analysis of the existing flood control project and then evaluates alternatives for the final disposition of 9 flood control dams constructed between 1956 and 1971. The purpose of the Plan-PEIS is to ensure agencies consider the environmental impacts of their action in decision making. NRCS involvement is through Public Law 83-566, Watershed Protection and Flood Prevention Act, as amended. The ROD is available for viewing at the following link:
The WFK Watershed has an area of 75,387 acres (117.8 square miles) to the confluence with the Kickapoo River. The focused planning area for the Plan-PEIS is 63,761 acres (99.6 square miles). The Plan-PEIS follows an original Watershed Work Plan developed in 1961 to reduce flood damages in the WFK valley under the Watershed Protection and Flood Prevention Act of 1954.
The major problems in the watershed between 1956 and 1961 were floodwater damages to: crops and pasture, fences, farmsteads, machinery, buildings, livestock, county, township roads and bridges, and the village of Liberty. Project measures implemented under the 1961 Watershed Work Plan include a multitude of land treatment practices to reduce erosion and sedimentation behind the dams and 7 flood control dams with a total capacity of 3,652 acre-feet to regulate flood flows from 30.73 square miles, or 31 percent of the watershed above the village of Liberty. With the addition of two dams built under the Pilot Watershed Program in 1956, the runoff from 34.6 square miles or 35 percent of the watershed above the village of Liberty is controlled. The dams have now completed their Federal interest or original economic evaluation period of 50 years.
On the night of August 27, 2018, two watershed dams over-topped and two dams failed, including the WFK-1 and Mlsna Dams. Rainfall amounts up to 11 inches were reported on the night of August 27 and early morning of August 28. Additional rainfall amounts up to 7 inches were reported in the afternoon of August 28 after the dam failures.
The dams failed (breached) along the interface between the earthfill and highly jointed sandstone abutments. Each breach extended full depth to the valley floor. No one was injured or killed. Large debris fields were observed downstream of the dams for about 1/4 mile. Agricultural lands and road crossings were damaged. Engineering investigations concluded that flow through the fractured sandstone during high pool stage caused internal erosion and piping of the earthfill dam and contributed to the failures. The Sponsors and NRCS are concerned that a similar vulnerability exists in the remaining 7 dams.
The ROD summarizes the findings of the Plan-PEIS and provides the basis for a decision to decommission 9 flood control dams in the WFK watershed and replace WFK-1 with a high hazard, multi-purpose dam. The watershed project plan and the environmental document were combined in the single Plan-PEIS document. NRCS is the lead Federal agency responsible for the content and quality of the Plan-EIS for the purposes of National Environmental Policy Act (NEPA), Principles, Requirements, and Guidelines (PR&G) for Federal Investments in Water Resources and National Historic Preservation Act (NHPA) compliance.
The ROD is issued as specified by the NEPA process (42 U.S.C. 4321-4347) which follows the NRCS NEPA regulations in 7 CFR part 650, subpart A, and 7 CFR part 622. The NRCS NEPA regulations adopt the Council of Environmental Quality (CEQ) NEPA regulations (40 CFR parts 1500-1508) in total.
Considered alternatives included: no action, repair, rehabilitation, relocation, replacement, removal, and construction of additional dams. Considered alternatives also include the substitution of large watershed dams
Three of 12 alternatives were provided for detailed study and for comparative analysis: No Action, Decommission Dams, Decommission Dams and Replace WFK-1. The No Action alternative does not address dam safety. Two failed dams, plus three failures in the adjacent Coon Creek Watershed, present a high probability for future failures. The State Dam Safety Program has issued an administrative order to Vernon County, as the owner, to repair or remove the two failed dams; similarly, the State Dam Safety Program would likely order the repair or removal of the 7 remaining dams if the dams fail in the future. The Decommission Dams alternative proposes to decommission all 9 dams to prevent future dam failures and potential loss of life and property damage. The Decommission Dams and Replace WFK-1 dam alternative prevents future dam failures and restores the flood control and recreational benefits that are a keystone of Jersey Valley County Park.
Geologic and geotechnical engineering investigations were conducted following the failures of the Mlsna and WFK-1 Dams. The investigation report concluded that flow through the fractured sandstone abutments during high pool stages contributed to the failures. A similar vulnerability is believed to exist in the remaining structures.
Failure of the remaining dams could result in loss of life and would likely cause downstream flood, erosion, sedimentation damages to cropland, farm structures, road crossings, and utilities. Dam failures would also result in erosion and sedimentation of streams resulting in adverse impacts to fish and wildlife habitat.
All programmatic alternatives have submarginal economic performance except for the WFK-1 dam replacement. They have negative discounted net economic efficiency and low benefit to cost ratios. However, the preferred alternative of dam decommissioning decreases People at Risk (PAR) from a dam failure and increases length of natural stream connectivity for habitat and recreation. The Decommission Dams alternative is justified by the social (PAR and recreation) and environmental (stream restoration) accounting of the PR&G for Federal Investments in Water Resources. The replacement of the WFK-1 dam would restore a unique recreational opportunity in the Driftless Area of Southwest Wisconsin and re-establish the cornerstone of Jersey Valley County Park with 370-acres that generate 11 types of recreation. It will also provide flood protection benefits for about 49 homes.
As specified in 7 CFR 650.12(c) and 40 CFR 1505.2, the Draft PEIS public notice was initiated by publication of the Draft EIS on December 22, 2023, and published in the
The Plan-PEIS for the West Fork Kickapoo Watershed uses all practical means, consistent with considerations of national policy, to meet the goals established in NEPA. The Plan-PEIS will serve the overall public interest and meet the needs of the project sponsors. The Plan-PEIS has been prepared, reviewed, and accepted in accordance with the provisions of NEPA as implemented by Departmental regulations for the preparation of a Plan-PEIS. After considering a broad range of alternatives, the Plan-PEIS has found Alternative 7—Proposed Action—Decommission Dams and Replace WFK-1, to be the environmentally preferable alternative to serve the Sponsor's purpose and need.
NRCS has decided to assist Sponsors with the implementation of Alternative 7 to decommission all 9 dams by excavating a notch to pass the 100-year flood without impounding water while avoiding environmental impacts to the extent possible and mitigating for impacts that are unavoidable. NRCS also has decided to assist Sponsors with the replacement of the WFK-1 dam to restore a unique recreational opportunity in the Driftless Area and re-establish the cornerstone of Jersey Valley County Park with 370-acres that generate 11 types of recreation. It will also provide flood protection benefits for about 49 homes.
NRCS has prepared a concise ROD for this action. The ROD was prepared and will be signed by the State Conservationist (STC) following the 30-day administrative action period initiated by the EPA's publication of the notice of availability of the Final PEIS in the
The title and number of the Federal Assistance Program as found in the Assistance Listing
Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of the Executive order are to foster an intergovernmental partnership and a strengthened federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal financial assistance and direct Federal development. This project is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
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 USDA TARGET Center at (202) 720-2600 (voice and telephone) or dial 711 for Telecommunications Relay Service
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.
Rural Housing Service, Rural Business-Cooperative Service, and Rural Utilities service, U.S. Department of Agriculture (USDA).
Notice; request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the Rural Housing Service, Rural Business-Cooperative Service, and the Rural Utilities Service, agencies of the Rural Development (RD) mission area within the U.S. Department of Agriculture, hereinafter collectively referred to as the Agency(ies) to request Office of Management and Budget's (OMB) approval for a an extension of a currently approved information collection in support of compliance with Civil Rights laws.
Comments on this notice must be received by January 14, 2025.
Comments may be submitted electronically by the Federal eRulemaking Portal,
Pamela Bennett, RD Innovation Center—Regulations Management Division, USDA, 1400 Independence Avenue SW, Stop 1522, South Building, Washington, DC 20250-1522. Telephone: (202) 720-9639. Email:
The OMB regulation (5 CFR part 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) requires that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d)). This notice identifies an information collection that the Agency is submitting to OMB for revision of an existing collection.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (b) The accuracy of the Agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) Ways to enhance the quality, utility and clarity of the information to be collected; and (d) Ways to minimize the burden of the collection of information on 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 may be sent by the Federal eRulemaking Portal: Go to
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. Data furnished by the applicants will be used to determine eligibility for program benefits. Furnishing the data is voluntary; however, failure to provide data could result in program benefits being withheld or denied.
Copies of this information collection can be obtained from Pamela Bennett, Innovation Center—Regulations Management Division, at Email:
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Census Bureau, Department of Commerce.
Notice of public meeting.
The Census Bureau is giving notice of a virtual meeting of the 2030 Census Advisory Committee (2030 CAC or Committee). The Committee will assist the Census Bureau in devising strategies to increase awareness of and participation in the next decennial census, reduce barriers to response, and enhance the public's trust and willingness to respond.
Last minute changes to the schedule are possible, which could prevent giving advance public notice of schedule adjustments.
The virtual meeting will be held on:
• Thursday, December 5, 2024, from 1:30 p.m. to 3:30 p.m. eastern standard time.
Please visit the Census Advisory Committee website at
Shana Banks, Advisory Committee Branch Chief, Office of Program, Performance and Stakeholder Integration (PPSI),
The Committee provides insight, perspectives, and expertise through recommendations on planning and implementation of the 2030 Census. The members of the 2030 CAC are appointed by the Director of the Census Bureau. The Committee has been established in accordance with the Federal Advisory Committee Act (5 U.S.C. 1001
All meetings are open to the public. Public comments will be accepted in writing only to
Robert L. Santos, Director, Census Bureau, approved the publication of this notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable November 15, 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 August 6, 2024, the U.S. Department of Commerce (Commerce) initiated a less-than-fair-value (LTFV) investigation on imports of certain tungsten shot (tungsten shot) from the People's Republic of China (China).
Section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in an LTFV investigation within 140 days after the date on which Commerce initiated the investigation. However, section 733(c)(1)(A)(b)(1) of the Act permits Commerce to postpone the preliminary determination until no later than 190 days after the date on which Commerce initiated the investigation if: (A) the petitioner makes a timely request for a postponement; or (B) Commerce concludes that the parties concerned are cooperating, that the investigation is extraordinarily complicated, and that additional time is necessary to make a preliminary determination. Under 19 CFR 351.205(e), the petitioner must submit a request for postponement 25 days or more before the scheduled date of the preliminary determination and must state the reasons for the request. Commerce will grant the request unless it finds compelling reasons to deny the request.
On November 6, 2024, the petitioner
For the reasons stated above and because there are no compelling reasons to deny the request, Commerce, in accordance with section 733(c)(1)(A) of the Act, is postponing the deadline for the preliminary determination by 50 days (
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) hereby publishes a list of scope rulings and circumvention determinations made during the period April 1, 2024, through June 30, 2024. We intend to publish future lists after the close of the next calendar quarter.
Applicable November 15, 2024.
Marcia E. Short, AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: 202-482-1560.
Commerce regulations provide that it will publish in the
Interested parties are invited to comment on the completeness of this list of completed scope inquiries and scope/circumvention inquiry combinations made during the period April 1, 2024, through June 30, 2024. Any comments should be submitted to the Deputy Assistant Secretary for AD/CVD Operations, Enforcement and Compliance, International Trade Administration, via email to
This notice is published in accordance with 19 CFR 351.225(o).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of initiation of 5-year review; request for information.
NMFS announces its intent to conduct a 5-year review of the endangered Smoothback angelshark (
To allow us adequate time to conduct this review, we must receive your information no later than January 14, 2025. However, we will continue to accept new information about any listed species at any time.
Submit your information, identified by docket number NOAA-NMFS- 2024-0134, by the following method:
•
Chris Parsons, NOAA Affiliate, (301) 427-8403 or
This notice announces our active review of the Smoothback angelshark (
Background information on the Smoothback angelshark is available on the NMFS website at:
To ensure that the 5-year review is complete and based on the best scientific and commercial data available, we are soliciting new information from the public, governmental agencies, Tribes, the scientific community, industry, environmental entities, and any other interested parties concerning the status of the listed Saimaa seal. Categories of requested information include: (1) species biology including, but not limited to, population trends, distribution, abundance, demographics, and genetics; (2) habitat conditions including, but not limited to, amount, distribution, suitability, and important features for conservation; (3) degree, nature, and trends of threats to the species and its habitats; (4) conservation measures that have been implemented that benefit the species, including monitoring data demonstrating effectiveness of such measures; and (5) other new information, data, or corrections including, but not limited to, taxonomic or nomenclatural changes and improved analytical methods for evaluating extinction risk.
If you wish to provide information for the review, you may submit your information and materials electronically (see
National Telecommunications and Information Administration, U.S. Department of Commerce.
Call for applications to serve on the Innovation Fund Advisory Committee.
The National Telecommunications and Information Administration (NTIA) is seeking applications from persons interested in serving on the Public Wireless Supply Chain Innovation Fund Advisory Committee (hereinafter “the IFAC” or “the Committee”) for a two-year term. The IFAC will advise the Secretary and the NTIA Administrator on the administration of the Public Wireless Supply Chain Innovation Fund.
To be considered for calendar year 2025 appointments, applications must be postmarked or electronically transmitted on or before December 16, 2024.
Persons may submit applications, with the information specified below, to Richard Upchurch, Designated Federal Officer, by email to
Richard Upchurch, Designated Federal Officer, at (202) 617-6592 or
The Public Wireless Supply Chain Innovation Fund Advisory Committee is chartered by the Department of Commerce under the Federal Advisory Committee Act, as amended (FACA), 5 U.S.C. 1001
The FY21 NDAA requires the Secretary of Commerce, acting through the NTIA Administrator, and in consultation with the Under Secretary of Commerce for Standards and Technology, to establish a Federal advisory committee, composed of government and private sector experts, to advise the Secretary and the NTIA Administrator on the administration of the Innovation Fund. The Innovation Fund is a $1.5 billion competitive grants program authorized under the FY21 NDAA to support the following:
(i) Promoting and deploying technology, including software, hardware, and microprocessing technology, that will enhance competitiveness in the fifth-generation (commonly known as “5G”) and successor wireless technology supply chains that use open and interoperable interface radio access networks.
(ii) Accelerating commercial deployments of open interface standards-based compatible, interoperable equipment, such as equipment developed pursuant to the standards set forth by organizations such as the O-RAN Alliance, the Telecom Infra Project, 3GPP, the Open-RAN Software Community, or any successor organizations.
(iii) Promoting and deploying compatibility of new 5G equipment with future open standards-based, interoperable equipment.
(iv) Managing integration of multi-vendor network environments.
(v) Identifying objective criteria to define equipment as compliant with open standards for multi-vendor network equipment interoperability.
(vi) Promoting and deploying security features enhancing the integrity and availability of equipment in multi-vendor networks.
(vii) Promoting and deploying network function virtualization to facilitate multi-vendor interoperability and a more diverse vendor market.
The IFAC will function solely as an advisory body, in accordance with the provisions of the FACA. In particular, the IFAC shall advise the Secretary and the NTIA Administrator on the administration of the Innovation Fund and technology developments to help inform (i) the strategic direction of the Innovation Fund, and (ii) efforts of the Federal Government to promote a more secure, diverse, sustainable, and competitive supply chain. Additional information about the IFAC and its activities may be found on the IFAC web page at
Under the Committee's charter, the IFAC shall consist of not less than ten (10) and generally not more than twenty-five (25) members. Membership balance is not static and may change, depending on the work of the Committee. Members of the IFAC who are not Federal officers or employees and are appointed for their individual perspectives or view point will be appointed to serve as Representatives. Members of the IFAC who are not Federal officers or employees and are appointed for their individual expertise and experience will serve as Special Government Employees (SGEs) as the term is defined in 18 U.S.C. 202. SGEs are subject to conflict of interest laws and regulations, including (but not limited to) the obligation to annually file a New Entrant Confidential Financial Disclosure Report (OGE Form 450) and complete ethics training. Members of the IFAC who are Federal officers or employees will be appointed pursuant to 41 CFR 102.3.130(d) to serve as Regular Government Employees (RGEs). Members will be individually advised of the capacity in which they will serve through their appointment letters.
Members who are not Federal officers or employees will serve without compensation, and NTIA will not reimburse members for travel or per diem expenses. The IFAC will meet at least two times each year, as determined by the Designated Federal Officer (DFO) in consultation with the Chair or Co-Chairs. Additional meetings may be called at the discretion of the Chair or Co-Chairs subject to the approval of the DFO. It is anticipated that the inaugural meeting of the IFAC will be held in person, with the remaining meetings conducted virtually.
No member may be a registered federal lobbyist pursuant to the Lobbying Disclosure Act of 1995 (codified at 2 U.S.C. 1601
Members of the IFAC shall be appointed by the NTIA Administrator. NTIA currently seeks applicants for a two-year term that will commence in approximately Spring 2025 and continue for two years, subject to the renewal of the Committee's charter or its termination by proper authority.
In accordance with the Federal Advisory Committee Act, as amended (FACA) 5 U.S.C. 1001
During their service on the IFAC, non-Federal government members may not be applicants for Innovation Fund grants, have a financial interest in applicants for Innovation Fund grants, or be employed by applicants for Innovation Fund grants; represented entities cannot be applicants for Innovation Fund grants or have a financial interest in applicants for Innovation Fund grants. (Widely diversified paid memberships do not constitute a financial interest).
Each application must include the applicant's full name, address, telephone number, and email address, along with a summary of the applicant's qualifications that identifies, with specificity, how his or her education, training, experience, expertise, or other factors would support the IFAC's work and how his or her participation would help achieve the balance factors described above. Each application must also include a detailed resume or curriculum vitae. To be considered for a calendar year 2025 appointment, expressions of interest must be electronically transmitted on or before December 16, 2024.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from the Procurement List.
This action deletes product(s) from the Procurement List that were furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
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. Jurkowski, Telephone: (703) 489-1322, or email
On October 11, 2024 (89 FR 82579), 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) and service(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:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Notice of information collection; extension of comment period.
On October 22, 2024, the Committee for Purchase From People Who Are Blind or Severely Disabled, operating as the U.S. AbilityOne Commission (Commission), published a Notice of information collection, for a “Disability Qualification Determination” form with a comment period ending on November 16, 2024. This notice announces the Commission's extension of the comment period to November 24, 2024.
The comment period for the “Disability Qualification Determination” form, published October 22, 2024, at 89 FR 84338, is extended. Electronic comments should be received no later than 11:59 p.m. eastern time on November 24, 2024.
Submit comments to
Christopher Stewart, Compliance and Enforcement Attorney, Office of General Counsel, U.S. AbilityOne Commission, 355 E Street SW, Suite 325, Washington, DC 20024; telephone: (703) 254-6172; email:
On October 22, 2024, the Commission published a Notice of information collection, for a “Disability Qualification Determination” form that an AbilityOne-participating nonprofit agency employer will fill out to document its determination of an individual's eligibility to be a qualified direct labor employee for purposes of meeting the statutory requirements of the Javits-Wagner-O'Day (JWOD) Act, 41 U.S.C. 8501-8506. The form is an updated and modified version of the Commission's Individual Eligibility Evaluation (IEE) form (OMB Control #3037-0012). The purpose of the IEE was to determine and document an individual's disability eligibility by identifying the individual's barriers to employment as well as the job supports the individual needs to perform their job. The updated “Disability Qualification Determination” form is consistent with the Commission's responsibilities and ensures that the Commission will collect the most
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: December 15, 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. Jurkowski, Telephone: (703) 489-1322, or email
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.
Notice of information collection; request for comment.
The Committee for Purchase From People Who Are Blind or Severely Disabled operates as the U.S. AbilityOne Commission (Commission). This notice announces the Commission's intent to submit the Information Collection Request (“ICR”) described below to the Office of Management and Budget (OMB) for approval under applicable provisions of the Paperwork Reduction Act. This notice provides an opportunity to interested members of the public and affected agencies to comment on a proposed updated Nonprofit Agency (NPA) Annual Representations and Certifications form.
Submit comments on or before December 14, 2024.
Submit comments to
Christopher Stewart, Compliance and Enforcement Attorney, Office of General Counsel, U.S. AbilityOne Commission, 355 E Street SW, Suite 325, Washington, DC 20024; telephone: (703) 254-6172; email:
The Commission is responsible for implementing the Javits-Wagner-O'Day (JWOD) Act, 41 U.S.C. 8501-8506. In doing so, the Commission oversees the AbilityOne Program (Program), a program in which individuals who are blind or have significant disabilities provide products and services to Federal agencies, thereby creating employment opportunities for such individuals. The Commission maintains a Procurement List of mandatory source products and services provided by approximately 400 qualified nonprofit agencies (NPAs). The individuals who are blind or have significant disabilities performing direct labor tasks for NPA-employers are called “qualifying direct labor employees.” The Commission also established the term “participating employees” to mean the subset of such qualifying direct labor employees who work on AbilityOne contracts.
The implementing regulations for the JWOD Act, which are located at 41 CFR chapter 51, provide the requirements, procedures, and standards for the Program. Section 51-4.3 of the regulations sets forth the requirements that an NPA must meet to maintain qualification for participation in the Program. Under this section of the regulations, an NPA must submit a completed copy of the appropriate Annual Certification form. This documentation helps the Commission determine whether the NPA is meeting the qualification requirements of the Program. The Commission has also published policies regarding compliance requirements for qualified NPAs.
This information collection request seeks approval for the Commission to update its collection of information necessary to annually verify an NPA's compliance with Program requirements, as required by statute, regulations, and policies, as well to update its collection of the NPA's performance data to assess the total effect and effectiveness of the AbilityOne Program. The proposed form is called the Annual Representations and Certifications (ARC) for AbilityOne Qualified Nonprofit Agencies.
As part of the Commission's modernization of the Program, the updated ARC form will collect limited aggregate information: (1) NPA Program-related revenue and Program-related subcontracting; (2) a headcount of qualifying direct labor employees and other NPA employees who perform direct labor; (2) the direct labor hours performed by qualifying direct labor employees and others; (3) a headcount of veterans employed by the NPA; (4) the wages paid to participating employees and other NPA employees who perform direct labor; (5) employment benefits offered to
To streamline the ARC as compared to its predecessor form, the Commission removed the following: (1) questions about NPA governance, NPA-Program requirements, and Program integrity questions requiring yes/no responses, as those matters will be separately monitored by the designated CNA's compliance program; (2) the NPA's revenue, wages paid to direct labor employees, and subcontracting expenditures for work performed by the NPA that is not subject to the Program; and (3) career mobility outcomes generated from an NPA's vocational rehabilitation activities (previously called direct placement). In this ARC modification, the Commission requires a limited expansion in reporting: (1) the headcount and cumulative employment of qualifying direct labor employees and other NPA employees who perform direct labor; (2) wages (total wages and other benefits paid) to participating employees and other NPA employees who perform direct labor; (3) the source(s) of disability determination documentation; (4) employment benefits offered to participating employees (select all that apply); and (5) general information about the number of board members that self-identify as having a disability, whether the Program contract worksites are represented by union(s), and what types of supports the NPA received from its designated CNA.
The proposed updated ARC is available at
The ARC will be required annually after the close of the Federal fiscal year. In accordance with 41 CFR 51-4.3(a), each NPA must submit the ARC to its responsible CNA by November 1. The form will be completed and submitted electronically.
The Commission published a sixty-day notice for this ICR on May 3, 2024. The Commission received twenty-six (26) comments from various stakeholders in response to the notice. Comments were received from NPAs, CNAs, and other stakeholders. In addition to general comments, the comments can be grouped into those that questioned the Commission's need to collect certain data, comments that sought clarification of definitions or specific data elements, comments about career mobility data, comments about benefits-related data, comments about subcontracting data, and comments that questioned the Commission's estimated time burden for completing the form.
Among the general comments, some included requests for instructions for the form, or for the definitions of various terms used in the form to be made clearer. A few commenters supported the Commission's stated purposes of helping ensure the integrity of and furthering the mission of the AbilityOne Program. One stated that the forms present a good opportunity to increase transparency and ensure program accountability. Several commenters noted that the proposed form collected many of the same data elements collected by the CNAs and wanted to ensure there would not be duplication of data collection.
Among the comments questioning the Commission's need to collect certain data, some commenters asserted that the proposed data collection exceeded the Commission's statutory authority or went beyond collecting data pertaining to NPA qualification requirements. Some commenters stated that the rationale for collecting the information published in the 60-day notice was too general to substantiate the collection. Others requested information about the Commission's planned use for the information.
Among the comments about specific data elements to be collected, some questioned the need to collect data regarding the source of participating employees' disability eligibility determination. Some commenters questioned the purpose of collecting the number of employees on October 1, September 30, and a cumulative value, and requested clarification of the term “cumulative.” Some questioned the purpose and benefit of collecting the number of employees with disabilities performing indirect labor, particularly if that data element is optional, as the form makes clear. Many commenters were critical of the data request for mean (average) and median hourly wages paid, citing the burden in providing such data and questioning the utility of such data. Some of those commenters requested a definition and/or clarification of the terms “mean” and “median.” Many commenters noted their concerns with collecting data regarding the employment of spouses and dependents of veterans, requested the definition of a “dependent,” and noted that such data was not currently collected by the NPAs.
Many commenters questioned the need for data regarding career mobility of participating employees. Some asked for clarification of the three types of career mobility referenced in the form (lateral, upward and outward). Others sought clarification of an “NPA system for career mobility” and suggested simply using the term “NPA” instead. One commenter suggested that “demotion” be included as a category. Some commenters stated that NPAs often do not know where an employee has gone, including what new jobs they may have attained, when an employee has chosen to leave. One commenter stated that NPAs contacting departing or former employees for feedback on employment mobility outcomes would be burdensome. Finally, some commenters requested the ability to note on the form that the employee has not desired any new career opportunities.
Among the comments regarding the benefits-related data requested, some questioned the relevance of collecting this data. Some commenters noted that employees may choose to opt out of receiving certain benefits. Some commenters were supportive of collecting employment benefits data but suggested that it would be useful to provide a free text option for the NPA to explain its benefits system.
Several comments related to the scope of the data requested about subcontracts. Some commenters requested a definition of “subcontract” and “subcontractor.” Some sought clarification of the timeframe for reporting subcontracts, while others sought clarification on how to accurately report whether the subcontractor's employees and NPA employees were occupying the same labor positions and whether the subcontractor had offered jobs to NPA employees. One commenter recommended that the Commission add Service-Disabled Veteran-Owned Small Businesses as a category for small business subcontract reporting.
Among the comments that questioned the Commission's estimated time burden, several commenters suggested that the Commission's estimated time burden was inadequate or understated. Two offered a time burden amount for the previous form, but neither commented whether the time burden for the proposed form would be higher, lower, or approximately the same as the previous form. Only one commenter offered an estimate that the proposed form would require 20 hours to collect and report the required data.
Some commenters stated that it may be costly and onerous to report the number of participating employees by the medical documentation source.
Other commenters stated it would be burdensome to report the percentage of employees that elect to receive the NPA-provided health insurance or the cash payment instead, but did not offer details as to why that would be difficult and did not offer an estimate of the additional time it would take to determine that number.
The two CNAs, as commenters, stated that the burden to modify their data collection system was not considered in the burden estimate.
The Commission appreciates the comments it received and has made a number of modifications in the revised form available with this notice.
As a general matter, the Commission modified and reduced the data collection in the proposed form. To address the apparent confusion regarding whether the proposed form will duplicate existing data collections, the Commission has made clear that the proposed form replaces and supersedes the previous, similarly named annual certification required from NPAs. In addition, the Commission has made clear that it expects the CNAs to collect the data from this form in a manner that does not duplicate the manner in which the CNAs currently collect much of the same data. These points have been discussed in a variety of public meetings and forums and will continue to be articulated by the Commission.
With respect to the Commission's authority and need to collect the data, some of the information being collected is required by law, regulation, or policy, while other information is needed to ensure that the Program operates efficiently, successfully, and in accord with the mission of the Program. In order to strengthen and grow the employment opportunities offered through the AbilityOne Program, the Commission needs quantitative data to demonstrate the Program's integrity, to reflect the number and nature of good jobs offered in the Federal contracts obtained through the sole-source procurement process of the Program, and to determine the positive employment outcomes, including opportunities for career mobility, that currently exist in the Program.
The Commission's collection of data about the sources of employees' disability qualification documentation will be used to help ensure and demonstrate that individuals working on AbilityOne projects have qualifying disabilities and are eligible for the hiring opportunities available through the sole-source procurement program. Another proposed data collection form, the “Participating Employee Information” form, will collect in an electronic system the source of disability documentation at the time of hire for new employees, as well as for individuals currently employed on the AbilityOne contracts. The Commission expects this electronic collection will enable an NPA to auto-calculate the aggregate number of employees by medical documentation source. Indeed, the Commission has conveyed to each CNAs that it expects the CNA's electronic data system to enable such auto-population.
In response to requests for clarification of various terminology used in the form, the Commission has changed the term “cumulative” to the term “total employed during the year” to clarify the value required in the participating employee count table. The Commission has also modified the question regarding “number of employees who are blind or have a significant disability performing indirect labor” to “number of employees who self-identify as a person with a disability performing indirect labor” to clarify that is a count of indirect labor employees that self-identify as having a disability.
The Commission has removed the question regarding the median hourly wages paid to participating employees so as to reduce the burden on NPAs in calculating the median hourly wage. The data request for the mean hourly wages paid has been changed so that a field will be automatically calculated once the NPA has entered the count of participating employees during the fiscal year and the wages paid to participating employees.
The Commission has removed the request for data regarding the number of military spouses or dependents hired by the NPA on Federal contracts obtained through the AbilityOne Program, thus eliminating the need to further define those terms. That data is often of interest to Federal agencies, particularly the Department of Defense, as the agency considers whether to ask or agree that a contract be placed on the AbilityOne sole-source procurement list. The NPAs that collect such data often include that information when they bid for contracts. However, data requests regarding employment of veteran spouses or dependents will not be included on this form.
The Commission revised the question seeking the percentage of participating employees that utilize NPA-provided health insurance (or cash in lieu of the benefit). The form now simply provides check boxes for the NPA to indicate which benefits are offered. Based on comments received, “tuition assistance or other education support” is now included in the list of benefits offered. In addition, an “other” category has been added, along with an option to enter free text describing an employment benefit that is not listed on the form. Finally, an additional free text box has been added so an NPA can provide additional information on its benefits structure, if it wishes to do so.
The measurement of participating employee career mobility is particularly important to the Commission's demonstration that the AbilityOne Program offers a wide range of good jobs. The Commission added parenthetical explanations for the employment mobility outcome terms—lateral movement, upward movement, and outward movement—and has added “demotion” as a potential outcome.
The Commission also added an option to allow the NPA to note that the employee has a “stated desire to remain in present position.” As a subset of that answer, the form has an option for the NPA to note that the employee has “expressed concern regarding potential government benefit disqualification as a result of increased wages.”
The Commission has included an option of “unknown” regarding an employee's desire to remain in a current labor position. However, once NPAs are required to engage in annual career planning with their employees, the NPA will be expected to know the answer to whether a participating employee wishes to remain in their current labor position.
The Commission has significantly modified the requested information regarding subcontracting of work on the Procurement List. It has removed entirely the section seeking data on whether participating employees are performing the same or similar jobs as employees of the subcontractor. This data will be relevant when an NPA is a prime contractor and subcontracts with an entity in which the employees of the subcontractor and the NPAs participating employees perform the same or similar jobs. This is an approach the Commission is exploring as a means of increasing integration in the workplace, but it is not yet a common practice in the Program.
The Commission has also removed the question regarding whether a subcontractor has employed participating employees. While this data is relevant regardless of whether participating employees are doing the same or similar job as subcontractor employees, it is not yet the norm for NPAs to require that their subcontractors have a mechanism by which the subcontractor will view participating employees as a talent pool to draw upon for employment.
Finally, the Commission has removed all collection of information about an NPA's subcontracts on contracts obtained independently of the AbilityOne Program.
The Commission has added Service-Disabled Veteran-Owned Small Business as a choice of a subcontractor business entity type. The Commission will also define the terms “subcontract” and “subcontracting” in the instructions for the proposed form.
With regard to the time burden estimate, the Commission has revised its estimate for an NPA to complete the proposed form from eight (8) hours to twenty (20) hours.
One commenter suggested that ten (10) hours was more realistic for completing the form, while a second commenter suggested that twenty (20) hours was the appropriate estimate. No other commenters suggested alternative time estimates.
In order to be conservative, the Commission now estimates that an NPA will need twenty (20) hours to complete the proposed form. The Commission estimates that it will take a human resources staff person (or an equivalent staff person) nine (9) hours to complete some sections of the form; a financial specialist nine (9) hours to complete other sections of the form, and two (2) hours by the Principal Officer to review and certify the form.
To calculate the cost burden for this average annual burden, the Commission used national average pay data from the U.S. Bureau of Labor Statistics, using the May 2023 National Occupational Employment and Wage Estimate of $36.57 as the mean hourly wage for a Human Resources Specialist (OC 13-1070), $46.37 as the mean hourly wage for a Financial Specialist (OC 13-2000), and $124.47 as the mean hourly wage for a Chief Executive Officer (OC 11-1011). See
The table below represents the time and cost burden the Commission estimates this form will necessitate.
With respect to this collection of information via the proposed form, the Commission welcomes comments on the following:
1. The necessity to collect this information to support the Commission's mission and oversight responsibilities;
2. Methodology to improve the accuracy of the estimated time burden;
3. Suggestions or methods to minimize the burdens associated with collecting the information described in this ICR.
Department of the Navy (DoN), Department of Defense (DoD).
Notice of partially closed meeting.
The DoD is publishing this notice to announce that the following Federal Advisory Committee meeting of the U.S. Naval Academy Board of Visitors, hereafter “Board,” will take place.
Open to the public, December 2, 2024, from 9 a.m. to 11 a.m. eastern time zone (ET). Closed to the public, December 2, 2024, from 11 a.m. to noon (12 p.m.) ET.
This meeting will be held at the U.S. Naval Academy in Annapolis, MD. Pending prevailing health directives, the meeting will be handicap accessible. Escort is required.
Lieutenant Commander Ross Hammerer, USN, Executive Secretary to the Board of Visitors, Office of the Superintendent, U.S. Naval Academy, Annapolis, MD 21402-5000, 410-293-1503,
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 United States Code (U.S.C.), appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), the General Services Administration's (GSA) Federal Advisory Committee Management Final Rule (41 Code of Federal Regulations (CFR) part 102-3).
Proposed meeting agenda for December 2, 2024.
Current details on the board of visitors may be found at
The executive session of the meeting from 11 a.m. to 12 p.m. ET on December 2, 2024, will consist of discussions of new and pending administrative or minor disciplinary infractions and non-judicial punishments involving midshipmen attending the Naval Academy to include but not limited to, individual honor or conduct violations within the Brigade, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. For this reason, the executive session of this meeting will be closed to
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing an extension without change of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before January 14, 2025.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Lauren Kennedy, 202-453-7957.
The Department, in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Department is soliciting comments on the proposed information collection request (ICR) that is described below. The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Institute of Education Sciences (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing a revision of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before December 16, 2024.
Written comments and recommendations for proposed information collection requests should be submitted within 30 days of publication of this notice. Click on this link
For specific questions related to collection activities, please contact Tracy Rimdzius, 202-453-7403.
The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Grid Deployment Office, Department of Energy.
Notice of application.
Altop Energy Investments LP (the Applicant) has applied for authorization to transmit electric energy from the United States to Canada pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before December 16, 2024.
Comments, protests, motions to intervene, or requests for more information should be addressed by electronic mail to
Janessa Zucchetto, (240) 474-8226,
The United States Department of Energy (DOE) regulates electricity exports from the United States to foreign countries in accordance with section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)) and regulations thereunder (10 CFR 205.300
Section 202(e) of the FPA provides that an entity which seeks to export electricity must obtain an order from DOE authorizing that export (16 U.S.C. 824a(e)). On April 10, 2023, the authority to issue such orders was delegated to the DOE's Grid Deployment Office (GDO) under Redelegation Order No. S3-DEL-GD1-2023.
On October 15, 2024, Altop Energy Investments LP filed an application for authorization to transmit electric energy from the United States to Canada for a term of five years. App. at 1.
According to the Application, “Altop Energy Investments LP is a Delaware Limited Partnership with its principal place of business in Houston, TX.”
The existing international transmission facilities to be utilized by the Applicant have been previously authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning Altop Energy Investments LP Application should be clearly marked with GDO Docket No. EA-518. Additional copies are to be provided directly to Gebre-Egziabher Gebre, Altop Energy Investments LP, 440 Louisiana Street, Suite 575, Houston, TX 77002,
A final decision will be made on the requested authorization after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after DOE evaluates whether the proposed action will have an adverse impact on the sufficiency of supply or reliability of the United States electric power supply system.
Copies of this Application will be made available, upon request, by accessing the program website at
Grid Deployment Office, Department of Energy.
Notice of application.
Altop Energy Investments LP (the Applicant) has applied for authorization to transmit electric energy from the United States to Mexico pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before December 16, 2024.
Comments, protests, motions to intervene, or requests for more information should be addressed by electronic mail to
Janessa Zucchetto, (240) 474-8226,
The United States Department of Energy (DOE) regulates electricity exports from the United States to foreign countries in accordance with section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)) and regulations thereunder (10 CFR 205.300
Section 202(e) of the FPA provides that an entity which seeks to export electricity must obtain an order from DOE authorizing that export (16 U.S.C. 824a(e)). On April 10, 2023, the authority to issue such orders was delegated to the DOE's Grid Deployment Office (GDO) under Redelegation Order No. S3-DEL-GD1-2023.
On October 15, 2024, Altop Energy Investments LP filed an application (Application or App.) with DOE to transmit electric energy from the United States to Mexico for a five-year term. App. at 1.
According to the Application, Altop Energy Investments LP is a Delaware limited partnership with its principal place of business in Houston, TX.
The existing international transmission facilities to be utilized by the Applicant have been previously authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning Altop Energy Investments LP's Application should be clearly marked with GDO Docket No. EA-517. Additional copies are to be provided directly to Gebre-Egziabher Gebre, Altop Energy Investments LP, 440 Louisiana Street, Suite 575, Houston, TX 77002,
A final decision will be made on the requested authorization after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after DOE evaluates whether the proposed action will have an adverse impact on the sufficiency of supply or reliability of the United States electric power supply system.
Copies of this Application will be made available, upon request, by accessing the program website at
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric reliability filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene, to protest, or to answer a complaint in any
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 November 8, 2024, the Commission issued an order in Docket No. EL25-15-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e, instituting an investigation to determine whether Scrubgrass Reclamation Company, L.P.'s Rate Schedule is unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful.
The refund effective date in Docket No. EL25-15-000, 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. EL25-15-000 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 November 1, 2024, the Federal Energy Regulatory Commission (Commission) convened a Commissioner-led technical conference in the above captioned proceeding to discuss generic issues related to the co-location of large loads at generating facilities. All interested persons are invited to file post-conference comments on or before December 9, 2024 regarding issues raised during the technical conference that they believe would benefit from further discussion.
Comments may be filed electronically via the internet.
For more information about this Notice, please contact Keatley Adams at
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:
Revision to FR Notice Published09/20/2024; Extending the Comment Period from 11/04/2024 to 12/02/2024.
Environmental Protection Agency (EPA).
Notice.
In the
If a registrant has a registered pesticide product in flexible packaging that is not compliant with the clarified determination, the registrant must contact the appropriate EPA Product Manager by May 14, 2025.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2023-0607, is available online at
Charles Smith, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (202) 566-1030; email address:
You may be affected by this action if you currently market or propose to market a pesticide in flexible spouted packages. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
If you have questions about the applicability of this determination to you, please consult the person listed under
EPA is taking this action pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. 136
With this document, the Agency is clarifying the scope of the determination provided in the
Subsequent to that publication, stakeholders communicated to EPA that the notice created confusion and requested that EPA publish a notice that better defines the scope of the products affected by that determination. With this notice, EPA is providing the clarification requested by stakeholders. Specifically, EPA is clarifying that the determination applies to flexible spouted pouches, also identified as spouted pouches, spouted pouches and cap, or fitment pouches. It does not apply to flexible packaging without a spout, such as the non-spouted flexible packaging of household cleaning wipes or pet spot on pipettes or applicators.
Taken together, the determination provided in the
Export-Import Bank of the United States.
Submission for OMB review and comments request.
The Export-Import Banks of the United States (EXIM), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal Agencies to comment on the proposed information collection, as required by the Paperwork Reduction Act of 1995. This collection of information is necessary to determine eligibility of the underlying export transaction for EXIM insurance coverage.
Comments must be received on or before December 16, 2024 to be assured of consideration.
Comments may be submitted electronically on
To request additional information, please contact Edward Coppola,
Export-Import Bank of the United States.
Notice of information collection; request for comment.
The Export-Import Bank of the United States (EXIM), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal Agencies to comment on the proposed information collection, as required by the Paperwork Reduction Act of 1995.
Comments must be received on or before December 16, 2024, to be assured of consideration.
Comments may be submitted electronically on
To request additional information, please
The application tool can be reviewed at:
Export-Import Bank of the United States.
Submission for OMB review and comments request.
The Export-Import Bank of the United States (EXIM), as a part of its continuing effort to reduce paperwork and respondent burden, invites the public and other Federal Agencies to comment on the proposed information collection, as required by the Paperwork Reduction Act of 1995.
Comments must be received on or before December 16, 2024 to be assured of consideration.
Comments may be submitted electronically on
To request additional information please contact Edward Coppola,
The form can be viewed at
Export-Import Bank of the United States.
Submission for OMB review and comments request.
The Export-Import Bank of the United States (EXIM), as a part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal Agencies to comment on the proposed information collection, as required by the Paperwork Reduction Act of 1995.
Comments must be received on or before December 16, 2024 to be assured of consideration.
Comments may be submitted electronically on
To request additional information, please contact Jennifer Krause,
This form is used by insurance brokers to register with EXIM and by EXIM to make a determination of the eligibility of the broker to receive commission payments under Export-Import Bank's credit insurance programs.
The form can be viewed at:
Export-Import Bank of the United States.
Notice of information collection; request for comment.
The Export-Import Bank of the United States (EXIM), pursuant to the Export-Import Bank Act of 1945, as amended, facilitates the finance of the export of U.S. goods and services. As part of its continuing effort to reduce paperwork and respondent burden, EXIM invites the general public and other Federal agencies to comment on the proposed information collection, as required by the paperwork Reduction Act of 1995.
Comments must be received on or before December 16, 2024 to be assured of consideration.
Comments may be submitted electronically on
To request additional information, please contact Donna Schneider,
The Letter of Interest (LI) is an indication of Export-Import (EXIM) Bank's willingness to consider financing a given export transaction. EXIM uses the requested information to determine the applicability of the proposed export transaction and determines whether or not to consider financing that transaction.
The Commission gives notice that it has formally requested that the parties to the below listed agreement provide additional information pursuant to 46 U.S.C. 40304(d). This action prevents the agreement from becoming effective as originally scheduled. Interested parties may file written comments, including relevant information and documents, regarding the agreement to the Secretary by email at
By Order of the Federal Maritime Commission.
Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, without revision, the Reporting and Recordkeeping Requirements Associated with Regulation W (FR W; 7100-0304).
Comments must be submitted on or before January 14, 2025.
You may submit comments, identified by FR W, by any of the following methods:
•
•
•
•
All public comments are available from the Board's website at
Additionally, commenters may send a copy of their comments to the Office of Management and Budget (OMB) Desk Officer for the Federal Reserve Board, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System,
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
During the comment period for this proposal, a copy of the proposed PRA OMB submission, including the draft reporting form and instructions, supporting statement (which contains more detail about the information collection and burden estimates than this notice), and other documentation, will be made available on the Board's public website at
The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Board's functions, including whether the information has practical utility;
b. The accuracy of the Board's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal.
Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, with revison the Financial Statements for Holding Companies (FR Y-9 reports; OMB No. 7100-0128) and Consolidated Report of Condition and Income for Edge and Agreement Corporations (FR 2886b; OMB No. 7100-0086).
The revisions are effective December 31, 2024.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System,
Office of Management and Budget (OMB) Desk Officer for the Federal Reserve Board, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. The OMB inventory, as well as copies of the PRA Submission, supporting statements
The Consolidated Financial Statements for Holding Companies (FR Y-9C) consists of standardized financial statements for HCs similar to the Call Reports filed by commercial banks. The FR Y-9C collects consolidated data and is filed quarterly by top-tier HCs with total consolidated assets of $3 billion or more.
The Parent Company Only Financial Statements for Large Holding Companies (FR Y-9LP), must be submitted quarterly by each HC that files the FR Y-9C, as well as by each of its subsidiary HCs. The report consists of standardized financial statements, including the following schedules: Income Statement, Cash Flow Statement, Balance Sheet, Investments in Subsidiaries and Associated Companies, Memoranda, and Notes to the Parent Company Only Financial Statements.
The Parent Company Only Financial Statements for Small Holding Companies (FR Y-9SP), is filed semiannually by HCs with total consolidated assets of less than $3 billion. In a banking organization with total consolidated assets of less than $3 billion that has tiered HCs, each HC in the organization must submit, or have the top-tier HC submit on its behalf, a separate FR Y-9SP. This report collects basic balance sheet and income data for the parent company, as well as data on its intangible assets and intercompany transactions.
The Financial Statements for Employee Stock Ownership Plan Holding Companies (FR Y-9ES) is filed annually by each employee stock ownership plan (ESOP) that is also an HC. The report collects financial data on the ESOP's benefit plan activities. The FR Y-9ES consists of four schedules: Statement of Changes in Net Assets Available for Benefits, Statement of Net Assets Available for Benefits, Memoranda, and Notes to the Financial Statements.
The instructions to each of the FR Y-9C, FR Y-9LP, FR Y-9SP, and FR Y-9ES state that respondent HCs should retain workpapers and other records used in the preparation of the reports for a period of three years following submission. In addition, HCs must maintain in their files a manually signed and attested printout of the data submitted under each form for a period of three years.
The Supplement to the Consolidated Financial Statements for Holding Companies (FR Y-9CS) is a voluntary, free-form supplemental report that the Board may utilize to collect critical additional data deemed to be needed from HCs in an expedited manner. The FR Y-9CS data collections are used to assess and monitor emerging issues related to HCs, and the report is intended to supplement the other FR Y-9 reports. The data requested by the FR Y-9CS would depend on the Board's data needs in any given situation. For example, changes made by the Financial Accounting Standards Board may introduce into generally accepted accounting principles new data items that are not currently collected by the other FR Y-9 reports. The Board could use the FR Y-9CS report to collect these data until the items are implemented into the other FR Y-9 reports.
The commenter is supportive of the proposed revisions to align the regulatory reporting of loan modifications to borrowers experiencing financial difficulty (LMBEFD) on the FR Y-9C, FR Y-9LP, and FR 2886b in accordance with ASU 2022-02. The commenter noted that, in any event, the Board should not modify the proposed FR Y-9 revisions to bring the reporting in line with the outstanding proposal on the Call Reports.
In response, the Board is proceeding with these revisions as proposed to the FR Y-9C, FR Y-9LP, and FR 2886b. Additionally, on June 7, 2024, the Board published in the
With regard to aligning the reporting of LMBEFD in accordance with ASU 2022-02 on the Call Report, the Office of the Comptroller of the Currency (OCC), Treasury; Federal Deposit Insurance Corporation (FDIC); and Board (collectively, the agencies) are continuing to evaluate the comments on their September 2023 proposal,
The commenter stated that the FR Y-9C's definition of LMBEFDs should align with the U.S. GAAP definition, specifically Accounting Standards Codification (ASC) Subtopic 310-10 and not scope in any additional modifications. The commenter noted that ASC Subtopic 310-10 requires disclosure of modifications of receivables to borrowers experiencing financial difficulty where the modification results in the form of (1) principal forgiveness, (2) an interest rate reduction, (3) an other-than-insignificant payment delay, or (4) a term extension (or a combination thereof) to be disclosed for financial reporting purposes. The commenter mentioned that it would be helpful if the Board would explicitly confirm the definitional alignment with U.S GAAP and therefore limit the population of LMBEFD for regulatory reporting purposes to those four modifications. In response to the commenter, the four modifications referenced from ASC Subtopic 310-10 are explicitly included in the FR Y-9Cs definition of LMBEFD and therefore limits the population of LMBEFD accordingly.
The Board also received comments that were not specifically related to the proposed changes in this proposal. The commenter recommended that the Board should propose and implement changes to the reporting of loans to nondepository institutions (NDFIs) and nonpurpose margin loans on the FR Y-9C to be consistent with the recently finalized Call Report proposal.
In response, the Board may propose and implement revisions to the FR Y-9C related to the reporting of NDFI loans and nonpurpose margin loans that would be consistent with the finalized Call Report proposal. Additionally, the Board may also propose changes related to the definition of “Past Due” in the FR Y-9 and FR 2886b that would be aligned and implemented concurrent with the Call Reports. Any future changes to the FR Y-9C and FR 2886b related to the reporting of NDFI loans, nonpurpose margin loans, and the definition of “Past Due” would be subject to the PRA notice and comment process.
Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, with revision, the Treasury Securities and Agency Debt and Mortgage-Backed Securities Reporting Requirements (FR 2956; OMB No. 7100-0383).
The revisions are effective December 16, 2024.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System,
Office of Management and Budget (OMB) Desk Officer for the Federal Reserve Board, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to
Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, without revision, the Registration of a Securities Holding Company (FR 2082; OMB No. 7100-0347).
Comments must be submitted on or before January 14, 2025.
You may submit comments, identified by FR 2082, by any of the following methods:
•
•
•
•
All public comments are available from the Board's website at
Additionally, commenters may send a copy of their comments to the Office of Management and Budget (OMB) Desk Officer for the Federal Reserve Board, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
During the comment period for this proposal, a copy of the proposed PRA OMB submission, including the draft reporting form and instructions, supporting statement (which contains more detail about the information collection and burden estimates than this notice), and other documentation, will be made available on the Board's public website at
The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Board's functions, including whether the information has practical utility;
b. The accuracy of the Board's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal.
Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, with revision, the Report of Selected Assets and Liabilities of Domestically Chartered Commercial Banks and U.S. Branches and Agencies of Foreign Banks (FR 2644; OMB No. 7100-0075).
Comments must be submitted on or before January 14, 2025.
You may submit comments, identified by FR 2644, by any of the following methods:
•
•
•
•
All public comments are available from the Board's website at
Additionally, commenters may send a copy of their comments to the Office of Management and Budget (OMB) Desk Officer for the Federal Reserve Board,
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System,
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
During the comment period for this proposal, a copy of the proposed PRA OMB submission, including the draft reporting form and instructions, supporting statement (which contains more detail about the information collection and burden estimates than this notice), and other documentation, will be made available on the Board's public website at
The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Board's functions, including whether the information has practical utility;
b. The accuracy of the Board's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal.
Currently, all respondents file balance sheet data weekly, with data as of close of business Wednesday. While weekly data are necessary from large and regional banks to meet the need by the Board for high frequency and accurate information on banking and credit conditions, smaller banks could report monthly without a significant loss of accuracy. Internal tests conducted on weekly sample data converted to a monthly basis for several size thresholds indicate that the $5 billion asset size cut off would be unlikely to significantly impact the aggregated data results. However, the reporting burden for these smaller banks would be substantially reduced:
1. Twelve reportable data points versus 52 per year,
2. Expected fewer number of revisions, since data would be monthly rather than weekly, and
3. Marked reduction in failed tolerances and required edit remarks.
The Federal Reserve has been striving to bolster the size of the sample of respondents. Nineteen small banks have left the panel since the last report renewal in April 2022 due to burden, leaving the current panel (as of spring 2024) short of the authorized sample of 850 by about 90 banks. Community banks in particular have fewer resources at their disposal and less staff available for filing the report; the time burden is the most common reason given by these banks when they drop from the sample. The Federal Reserve hopes that, by giving the banks the option to file less frequently, it will be easier to recruit and retain smaller institutions on the panel. Though small in assets, these banks are outsized in their effects on commercial real estate loans, as community banks hold more than twice the outstandings of these loans relative to the large and regional banks.
Thus, the Board proposes that all domestically chartered commercial
Federal Trade Commission.
Proposed consent agreement; request for comment.
The consent agreement in this matter settles alleged violations of Federal law prohibiting unfair or deceptive acts or practices. The attached Analysis of Proposed Consent Order to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before December 16, 2024.
Interested parties may file comments online or on paper by following the instructions in the
Claire Wack (202-326-2836), Attorney, Division of Marketing Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.
Pursuant to section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule § 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of 30 days. The following Analysis to Aid Public Comment describes the terms of the consent agreement and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before December 16, 2024. Write “H&R Block; Docket No. 9427” on your comment. Your comment—including your name and your State—will be placed on the public record of this proceeding, including, to the extent practicable, on the
Because of heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comments online through the
Because your comment will be placed on the publicly accessible website at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule § 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC website at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, a proposed stipulated Decision and Order (“Proposed Order”) to resolve
This matter involves Respondents' advertising and design of their online tax preparation products (“Online Products”). According to the Commission's complaint, Respondents deceptively market their Online Products by representing to consumers that they can file for free using H&R Block. In addition, the Complaint alleges that Respondents designed their Online Products to encumber consumers attempting to downgrade from a more expensive Online Product to a less expensive or free product, through two unfair practices: (1) requiring consumers wishing to downgrade to first contact customer service to request and complete the downgrade (“customer service contact requirement”), and (2) upon downgrading, deleting all information the consumer has entered (“deletion requirement”). Based on the foregoing, the Commission alleges that Respondents have engaged in, and are engaging in, unfair and deceptive business practices in the advertising, marketing, distribution, and sale of their Online Products, in violation of section 5 of the FTC Act, 15 U.S.C. 45.
The Proposed Order contains injunctive provisions addressing the violations alleged in the Complaint and $7 million to redress consumers harmed by Respondents' unlawful practices. Section I provides for notice to consumers and staggered elimination of the customer service contact and deletion requirements, with full elimination of these requirements mandated by January 15, 2026. Section I.A. requires Respondents to notify upgrading consumers by January 15, 2025, that, if they later choose to downgrade, their information will not be saved and they will have to start over. This provision will be in place until the deletion requirements are eliminated, January 15, 2026. Section I.B. sets forth the consumer notice that Respondents must give at the point of upgrade, starting January 15, 2026, to describe the new downgrading practices. Section I.C. requires that Respondents allow downgrades to the same extent they permit upgrades. Section I.D. requires Respondents to update their in-product chatbot assistant to permit downgrades without requiring the participation of a live agent by February 15, 2025. Section I.E. of the Proposed Order requires Respondents to provide another automated means to downgrade that is easily noticeable and persistently available to the consumer within the Online Products by January 15, 2026. Section I.F. prohibits requiring the participation of a live agent to effectuate a downgrade by February 15, 2025. Section I.G. requires that Respondents provide to consumers by January 15, 2025, clear and easily noticeable instructions on how to downgrade. Section I.H. sets forth required changes to the deletion requirement that Respondents must implement by January 15, 2026.
Section II prohibits Respondents from representing that their Online Products are free unless such products are actually free to all consumers, or Respondents clearly and conspicuously disclose the percentage of taxpayers that qualify for the offer. Alternatively, Respondents may disclose that the offer is not free for a majority of taxpayers. Section III prohibits Respondents generally from misrepresenting any material fact concerning the Online Products. Section IV includes $7 million to redress consumers who were harmed by Respondents' illegal practices.
Section V contains ancillary provisions necessary to effectuate Respondents' payment of the redress amount, while Section VI requires Respondents to provide customer information needed for the administration of consumer redress. Section VII requires Respondents, along with certain employees and successors, to acknowledge receipt of the Proposed Order.
Sections VIII through X of the Proposed Order are reporting and compliance provisions, which include recordkeeping requirements and provisions requiring Respondents to provide information or documents necessary for the Commission to monitor compliance with the Proposed Order. Section XI states that the Proposed Order will remain in effect for twenty (20) years, with certain exceptions.
The purpose of this analysis is to aid public comment on the Proposed Order. It is not intended to constitute an official interpretation of the Complaint or Proposed Order, or to modify in any way the Proposed Order's terms.
By direction of the Commission.
Today, the Commission votes to accept for public comment the stipulated Decision and Order in
The Commission alleges that H&R Block designed its online products to increase the burden on consumers who wanted to downgrade from a more expensive version of its tax-preparation product to a less expensive version.
I concur in the Commission's order accepting for public comment the stipulated Decision and Order against H&R Block. But I have serious reservations about the merits of Count III—the deceptive marketing of H&R Block's free version of its online tax preparation products. The U.S. Court of Appeals for the Fifth Circuit is currently reviewing a very similar claim in a different case.
Public Buildings Service (PBS), General Services Administration (GSA).
Notice of availability (NOA).
This notice announces the availability of the Final Environmental Impact Statement (EIS), which examines potential environmental impacts from the modernization and expansion of the Lynden and Sumas LPOEs in Lynden and Sumas, Washington. The existing Lynden and Sumas LPOEs are owned and managed by GSA and operated by the U.S. Department of Homeland Security's Customs and Border Protection (CBP). The Final EIS describes the purpose and need for the project; alternatives considered; the existing environment that could be affected; the potential impacts resulting from each of the alternatives; and proposed best management practices and mitigation measures. The Final EIS also includes a Floodplain Assessment and Statement of Findings due to the construction in a floodplain at the Sumas LPOE. The Final EIS identifies the preferred alternatives, including the environmentally preferable alternatives, as summarized below (see the
The Final EIS Wait Period begins with publication of this NOA in the
Comments concerning the Final EIS should be directed to:
•
•
Patrick Manning, Capital Project Manager, GSA at
Digital copies of the Final EIS are available at the following GSA project websites:
GSA's preferred alternative for the Lynden LPOE is to implement Lynden LPOE Alternative 3 (North-South Oriented LPOE Expansion) as described in the Final EIS. This alternative was selected because it would match the orientation of the existing LPOE and facilitate more efficient traffic flow. GSA has identified Lynden LPOE Alternative 3 as the environmentally preferable alternative because the maximum proposed limits of disturbance would be smaller compared to Lynden LPOE Alternative 2 (10.3 acres verses 14.5 acres) and Lynden LPOE Alternative 3 would require lower quantities of fill because of the smaller project footprint and differences in elevation change across the project site.
GSA's preferred alternative for the Sumas LPOE is to implement Sumas LPOE Alternative 4 (Multi-Story Construction LPOE Expansion) as described in the Final EIS. This alternative was selected because the operational space within the Main Building would be consolidated, and the building would use a smaller footprint within the LPOE allowing more space for other LPOE functions and increasing LPOE operational efficiency. This alternative would also add a pedestrian bridge, further increasing employee safety. Sumas LPOE Alternative 2 (Feasibility Study Preferred Alternative), Sumas LPOE Alternative 3 (Commercial Inspection West), and Sumas LPOE Alternative 4 (Multi-Story Construction LPOE Expansion) would be constructed within the same limits of disturbance (12.6 acres), with the only noted differences being the LPOE's potential alignment, layout, and operating efficiency. Therefore, potential environmental impacts resulting from each of these alternatives are similar and each alternative, including GSA's preferred Sumas LPOE Alternative 4, could be identified as the environmentally preferable alternative.
The existing 4.8-acre Lynden LPOE serves as the port of entry for people and vehicles connecting Lynden, Washington to Aldergrove, British Columbia, Canada. The Lynden LPOE currently operates 16 hours per day, 7 days per week and processes privately owned vehicles (POVs), buses, pedestrians, and permitted commercial traffic. The existing 4.0-acre Sumas LPOE serves as the port of entry for people and vehicles connecting Sumas, Washington to Abbotsford, British Columbia, Canada. The Sumas LPOE operates 24 hours per day, 7 days per week and processes POVs, buses, pedestrians, and commercial traffic.
The purpose of these expansion and modernization projects is for GSA to support the CBP mission through modernizing and expanding the Lynden and Sumas LPOEs.
Accomplishing this purpose would increase the functionality, capacity, operational efficiency, effectiveness, security, sustainability, and safety of the Lynden and Sumas LPOEs. The projects are generally needed to update the current facilities at the Lynden and Sumas LPOEs, which no longer function adequately and cannot meet CBP current operational needs or Program of Requirements.
The existing Lynden and Sumas LPOEs have not undergone major improvements since their initial construction in the late 1980s and do not have sufficient space for modernization and expansion. Both facilities also have configuration and space issues that cause traffic, delays in processing times, and safety and security issues for inspection personnel. Additionally, these facilities do not have the ability to incorporate new technologies as they become available. The projects at the Lynden and Sumas LPOEs are analyzed jointly in this Final EIS due to their proximity (approximately 10 miles) to one another.
Operational changes at the Lynden and Sumas LPOEs could impact each other, especially during construction.
GSA has prepared a Final EIS to assess the potential impacts of these expansion and modernization projects.
The EIS considered two action alternatives for the Lynden LPOE and three action alternatives for the Sumas LPOE, along with two construction sequencing options. GSA also considered the No Action Alternatives for each project location.
Lynden Alternative 2 (East-West Oriented LPOE Expansion) would involve potential acquisition of primarily agricultural land to the west of the LPOE, site preparation, and construction to modernize and expand the LPOE. The maximum proposed limits of disturbance for Lynden Alternative 2 would be approximately 14.5 acres.
Lynden Alternative 3 (North-South Oriented LPOE Expansion) would include the same action as Lynden Alternative 2, with a difference of alignment. The maximum proposed limits of disturbance for Alternative 3 would be approximately 10.3 acres.
Sumas Alternative 2 (Feasibility Study Preferred Alternative) would involve potential acquisition of land south and east of the LPOE, site preparation, and construction to modernize and expand the LPOE. The maximum proposed limits of disturbance for Sumas Alternative 2 would be approximately 12.9 acres.
Sumas Alternative 3 (Commercial Inspection West) would include the same action and maximum proposed limits of disturbance as Alternative 2, with a difference of a “flipped” alignment of the commercial inspection facility.
Sumas Alternative 4 (Multi-Story Construction LPOE Expansion) would include the same action and maximum proposed limits of disturbance as Sumas Alternative 2, with a difference of multi-story Main Building being constructed.
The EIS also evaluated two construction sequencing options, which could be implemented under any of the action alternatives considered.
Under the Concurrent Construction option, both ports would remain open during construction. Pedestrian access would be maintained through the ports by utilizing and resetting, as necessary, various access and safety controls. POV access would also be maintained through both ports using various controls, which may require limits on the number of open processing lanes and shifting of POVs to commercial owned vehicle (COV) lanes for limited times. COVs may need to be detoured at times to other ports to permit adequate space for continued POV processing.
Under the Sequential Construction Option, GSA and CBP considered the potential for closure of the Lynden LPOE. All traffic, pedestrians, POVs, and COVs would be detoured from the Lynden LPOE during the majority of its construction. Once the modernized and expanded Lynden LPOE is reopened, construction that impacts traffic would begin on the Sumas LPOE. The Sumas LPOE would remain open to pedestrians and POVs during construction to the greatest extent possible. COVs would be detoured from the Sumas LPOE to other LPOEs during portions of the construction period.
The Final EIS addresses the potential environmental impacts of the proposed alternatives on environmental resources including land use; water resources; biological resources; geology, topography, and soils; air quality, climate change, and greenhouse gases; human health and safety; infrastructure and utilities; traffic and transportation; noise and vibration; socioeconomics; and environmental justice and protection of children's health and safety. Based on the analysis presented in the Final EIS, impacts to all resource areas would be less-than-significant (
GSA conducted formal consultation with the Washington State Department of Archaeology and Historic Preservation (referred to as the State Historic Preservation Office [SHPO]) as required under Section 106 of the National Historic Preservation Act to determine impacts to historic properties. GSA determined that no historic properties would be affected by the proposed projects. SHPO concurred with GSA's determination.
GSA determined that implementation of any combination of Lynden and Sumas action alternatives may affect but would not likely adversely affect the yellow-billed cuckoo and monarch butterfly. Therefore, GSA sent an informal consultation letter in accordance with Section 7 of the ESA regarding the potential impacts to protected species from the Proposed Action to the U.S. Fish and Wildlife Service (USFWS) on July 31, 2024; and a follow-up email on September 18, 2024. The USFWS did not reply or provide written concurrence with GSA's determination within the 60-day required timeframe for a response.
GSA sent Farmland Conversion Impact Rating Forms to the Natural Resources Conservation Service (NRCS) on July 31, 2024; and a follow-up email on September 18, 2024 to determine if mitigation to reduce potential impacts to farmland or farmland soils from the proposed modernization and expansion of the Lynden and Sumas LPOEs is required. The NRCS has not responded to date; however, GSA will continue to coordinate with NRCS to determine if mitigation for potential impacts to Farmland Protection Policy Act protected soils is required.
The Sumas LPOE project area is located within the 1-percent-annual-chance floodplain (also referred to as the base flood or 100-year flood) and 0.2-percent-annual-chance floodplain (also referred to as the 500-year flood). In compliance with Executive Order 11988 (Floodplain Management), GSA prepared a Floodplain Assessment and Statement of Findings addressing potential impacts on floodplains, which is included in the Final EIS for public review and comment. As described in the Final EIS, GSA would follow Federal, State, and local regulatory compliance requirements and incorporate design standards at the Sumas LPOE to minimize impacts to floodplains.
Office of Child Support Services, Administration for Children and Families, U.S. Department of Health and Human Services.
Request for public comments.
The Office of Child Support Services (OCSS), Administration for Children and Families (ACF), U.S. Department of Health and Human Services, is requesting a 3-year extension of the form OCSS-75-Tribal Child Support Services Annual Data Report (OMB # 0970-0320, expiration May 31, 2025). We are requesting minor changes to this form.
Comments due January 14, 2025. In compliance with the requirements of the Paperwork Reduction Act of 1995, ACF is soliciting public comment on the specific aspects of the information collection described above.
You can obtain copies of the proposed collection of information and submit comments by emailing
Office of Child Care, Administration for Children and Families, U.S. Department of Health and Human Services.
Request for public comments.
The Administration for Children and Families is proposing revisions to an approved information collection, the Child Care Improper Payments Data Collection Instructions (OMB #0970-0323, expiration 1/31/2025). In addition to the proposed changes, we are requesting a 3-year extension.
You can obtain copies of the proposed collection of information and submit comments by emailing
The Office of Child Care (OCC) is completing the sixth 3-year cycle of case record reviews to meet the requirements for reporting under PIIA. The current data collection forms and instructions expire on January 31, 2025. As part of the renewal process, OCC has revised the forms and instructions with minor changes that do not change the methodology, but that provide additional guidance and clarification to facilitate complete and accurate data submissions. Existing instructions and examples were updated, expanded, or rewritten to clarify the information requested. Several formatting changes were made to streamline instructions. The instructions and forms were also reviewed for alignment with the 2024 CCDF Final Rule. A description of changes made in each section can be found in the Introduction section of the revised DCI.
OCC is particularly interested in feedback about updates made to the following sections:
•
For this reason, OCC conducted a survey in the spring of 2024 to gather information about states' experiences
•
Office of Refugee Resettlement, Administration for Children and Families, U.S. Department of Health and Human Services.
Request for public comments.
The Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), U.S. Department of Health and Human Services is inviting public comment on the proposed collection. The request consists of two forms that will allow the Unaccompanied Children (UC) Bureau to obtain informed consent from authorized consenters and informed assent or agreement from unaccompanied children for the administration of psychotropic medication.
Comments due December 16, 2024. The Office of Management and Budget (OMB) must make a decision about the collection of information between 30 and 60 days after publication of this document in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Nonclinical Safety Assessment of Oligonucleotide-Based Therapeutics.” FDA is publishing this draft guidance which, when finalized, will provide recommendations on approaches for the nonclinical safety evaluation of oligonucleotide-based therapeutics (ONTs) to support clinical development and marketing of these products. ONTs present unique challenges and opportunities in the nonclinical evaluation of safety that differ in many regards from those appropriate for small molecule drugs or therapeutic proteins.
Submit either electronic or written comments on the draft guidance by January 14, 2025 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Ronald Wange, Center for Drug Evaluation and Research (HFD-510), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 3342, Silver Spring, MD 20903, 301-796-1304.
FDA is announcing the availability of a draft guidance for industry entitled “Nonclinical Safety Assessment of Oligonucleotide-Based Therapeutics.” ONTs represent a rapidly evolving therapeutic modality, which is seeing application to a broad range of indications, including rare diseases, and have the potential to act on therapeutic targets that are not amenable to the action of small molecule drugs or therapeutic proteins. To further support the development of ONTs, FDA is publishing this draft guidance which, when finalized, will assist sponsors in optimizing the design of their nonclinical development package for ONTs.
The scope of the draft guidance includes single-stranded or double-stranded ONTs created synthetically or derived naturally, with native or modified backbone or nucleoside structures that increase or decrease expression and/or function of proteins. Examples of included oligonucleotides are antisense, small interfering RNA, microRNA, transfer RNAs, decoys, and aptamers. Immune stimulatory oligonucleotides (
ONTs present unique opportunities and challenges in the nonclinical evaluation of safety that differ in many regards from that appropriate for small molecule drugs or therapeutic proteins. This draft guidance provides specific recommendations on approaches for the nonclinical safety evaluation of ONTs to support clinical development and marketing of these products. The draft guidance, when finalized, will provide recommendations on the nonclinical evaluation of oligonucleotides in multiple areas, including genotoxicity, safety pharmacology, general toxicity, carcinogenicity, and reproductive and developmental toxicity. These recommendations have been developed based on industry best practices and Agency experience to date with this category of drug products.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Nonclinical Safety Assessment of Oligonucleotide-Based Therapeutics.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. The previously approved collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521). The collections of information in 21 CFR parts 50 and 56 pertaining to protection of human subjects have been approved under OMB control number 0910-0130. The collections of information in 21 CFR part 58 pertaining to good laboratory practice for nonclinical laboratory studies have been approved under OMB control number 0910-0119. The collections of information in 21 CFR 201.56 and 201.57 pertaining to content and format of labeling for human prescription drug and biological products have been approved under OMB control numbers 0910-0572. The collections of information in 21 CFR parts 210 and 211 pertaining to current good manufacturing practice have been approved under OMB control number 0910-0139. The collections of information in 21 CFR part 312 relating to the content and format of investigational new drug applications have been approved under OMB control number 0910-0014. The collections of information in 21 CFR part 314 relating to the content and format of new drug applications have been approved under OMB control number 0910-0001. The collections of information in 21 CFR part 601 relating to the content and format of biologics license applications are approved under OMB control number 0910-0338. The collections of information for MEDWATCH Adverse Event and Product Experience Reporting system have been approved under OMB control number 0910-0291.
Persons with access to the internet may obtain the draft guidance at
National Institutes of Health, HHS.
Notice.
The National Cancer Institute (NCI), an institute of the National Institutes of Health (NIH), Department of Health and Human Services (HHS), is giving notice of the licensing and/or collaboration opportunities for the inventions listed below, which are owned by an agency of the U.S. Government and are available for licensing and/or collaboration to achieve expeditious commercialization of results of federally-funded research and development.
Inquiries related to these licensing or collaboration opportunities should be directed to: Taryn Dick, Ph.D., M.B.A., Technology Transfer Manager, NCI, Technology Transfer Center, Email:
Researchers at the NCI seek licensing and/or co-development research collaborations for a class of novel aplithianine-derived small molecule analogs that compete with ATP for binding on a range of clinically relevant kinases. In 2022, the NCI Molecular Targets Program (MTP) completed a screen of approximately 150,000 pre-fractionated natural products from the NCI Program for Natural Product Discovery (NPNPD). From this screen, a class of active compounds, named Aplithianines A & B (isolated from the marine organism Aplidium sp.), showed broad potential applicability to numerous kinases of importance, including but not limited to:
• Oncogenic gene fusion DNAJB1-PRKACA (PKADJ):
○ Implicated in an ultra-rare adolescent liver cancer.
• Wild type protein kinase A (PKA):
○ Implicated in Cushing's Disease.
• Protein kinase G (PKG):
○ Potential treatment of malaria.
• Ccdc2-like kinases (CLK) 1 and 2:
○ Implicated in gastric cancer.
• DYRK family of kinases:
○ Implicated in gastric or colon cancer as well as infections caused by a protozoa or parasites.
This technology describes the Original Family of compounds filed. Subsequent to this filing, two additional cohorts of related, but patentably distinct cohorts of compounds, have been filed. Both the Second and the Third Cohorts comprise the same chemical scaffold of the broadest generic formula of this Original Family but represent patentably distinct subgenus formulas.
The specificity of several of the compounds have been examined in kinase panels to demonstrate that while applicable to a range of kinases, they are
This Notice is in accordance with 35 U.S.C. 209 and 37 CFR part 404.
• Gastric cancer.
• Ultra-rare adolescent liver cancer.
• Solid cancers susceptible to kinase inhibitors.
• Cushing's Disease.
• Transplantation.
• Diabetic neuropathic pain.
• Malaria.
• Protozoa infection.
• Applicability to numerous clinically relevant kinases, including:
○ Oncogenic gene fusion DNAJB1-PRKACA (PKADJ).
○ Wild type protein kinase A (PKA).
○ Protein kinase G (PKG).
○ Ccdc2-like kinases (CLK) 1 and 2.
○ DYRK family of kinases.
• Applicable to a range of kinases, but are not promiscuous kinase inhibitors.
• Broad potential commercial applicability for several blockbuster indications including:
○ cancer, immune suppression, transplantation, diabetic neuropathic pain, malaria, and protozoa infection.
• No approved therapeutics targeting DNAJB1-PRKCA.
• O'Keefe BR, et al. Biochemical Discovery, Intracellular Evaluation, and Crystallographic Characterization of Synthetic and Natural Product Adenosine 3′,5′-Cyclic Monophosphate-Dependent Protein Kinase A (PKA) Inhibitors. PMID: 37082750,
• O'Keefe BR, et al. Discovery and Synthesis of a Naturally Derived Protein Kinase Inhibitor that Selectively Inhibits Distinct Classes of Serine/Threonine Kinases. PMID: 37843072,
• E-044-2022: PCT/US2023/070304.
• E-202-2023: PCT/US2024/038376.
• E-162-2024: 63/672,577.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
The National Eye Institute (NEI), an institute of the National Institutes of Health (NIH), Department of Health and Human Services (HHS), is giving notice of licensing and/or collaboration opportunities for the inventions listed below, which are owned by an agency of the U.S. Government and are available for licensing and/or collaboration to achieve expeditious commercialization of results of federally-funded research and development.
Inquiries related to these licensing and/or collaboration opportunities should be directed to: Hiba Alsaffar, Ph.D., Technology Transfer Manager, NCI, Technology Transfer Center, Email:
Researchers at the NEI seek licensing and/or co-development research collaborations for improved methods of cryopreservation of cells, tissues, and organs via FOXO1 activation. The cornea is a critical part of the eye that helps prevent debris from entering and refracts light for proper vision. Corneal disorders such as keratoconus, Fuchs dystrophy, and infectious keratitis require corneal transplantation to restore vision. Approximately 185,000 corneal transplants are performed annually worldwide to treat corneal disorders. Corneas for those transplants are supplied by donor eyes that are stored at eye banks in select countries. Currently, Optisol-GS
This Notice is in accordance with 35 U.S.C. 209 and 37 CFR part 404.
• Corneal biobanks.
• Transplantation to remedy a wide range of corneal disorders.
• Improved method of cryopreserving corneal cells and other cell types.
• Superior corneal shelf life: 16-day compared to 12-day maximum shelf-life of current market products.
• Better meets requirement for larger eye bank cryopreservation.
• 95% endothelial cell survival after 4 weeks in cold storage.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer at (240) 276-0361.
Section 1955 of the Public Health Service Act (42 U.S.C. 300x-65), as amended by the Children's Health Act of 2000 (Pub. L. 106-310) and sections 581-584 of the Public Health Service Act (42 U.S.C. 290kk
No changes are being made to the regulations or the information collection provisions. A minor change reflecting current state reporting has been made to the annual burden estimates in 54.8(c)(4) resulting in total burden costs reported decreasing.
Information on how states comply with the requirements of 42 CFR part 54 was approved by OMB as part of the Substance Use Prevention and Treatment Block Grant FY 2019-2021 annual application and reporting requirements approved under OMB control number 0930-0168.
Send comments to SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-A, Rockville, Maryland 20857,
Coast Guard, DHS.
Notice of Availability of the Final Programmatic Environmental Impact Statement Expansion and Modernization of Base Seattle.
The U.S. Coast Guard (Coast Guard) announces the availability of the Final Programmatic Environmental Impact Statement (PEIS) for the Expansion and Modernization of Base Seattle. In accordance with National Environmental Policy Act (NEPA) and the Council on Environmental Quality (CEQ) NEPA implementing regulations, the Final PEIS analyzes the potential environmental and socioeconomic impacts, and identifies related mitigation measures, associated with land acquisition, facility and infrastructure modernization, and continued operation to support current and future Coast Guard missions at Base Seattle.
The Coast Guard will not issue a final decision on the proposed action until at least December 16, 2024, or at least 30 days after the Environmental Protection Agency publishes its Notice of Availability of this Final PEIS in the
The complete text of the Final PEIS is available in the docket, which can be found by searching the docket number USCG-2021-0183 using the Federal eRulemaking Portal at
Requests for additional information should be sent to U.S. Coast Guard, Shore Infrastructure Logistics Center, Environmental Management Division, ATTN: Dean Amundson, 1301 Clay Street, Suite 700N, Oakland, CA 94612-5203. ; phone 510-637-5541; email
The Final PEIS was prepared in accordance with the requirements of NEPA, the CEQ regulations implementing NEPA (40 CFR 1500-1508), DHS procedures for implementing NEPA (DHS Instruction Manual 023-01-001-01 (series)), Coast Guard Environmental Planning Policy (Commandant Instruction [COMDTINST] 5090.1), and other applicable DHS and Coast Guard policies and guidance. A Notice of Intent (NOI) to prepare the PEIS was published in the
The purpose of the proposed action is to provide adequate and efficient shore facilities and infrastructure at Base Seattle to support the Coast Guard's execution of its current and future statutory missions, pursuant to 14 United States Code (U.S.C.) 102. Base Seattle is the largest Coast Guard installation in the Pacific Northwest and is an essential facility to support Coast Guard missions in the Pacific Northwest and polar (the Arctic and Antarctica) areas of responsibility (AOR), now and for the foreseeable future.
The Coast Guard identified three reasonable alternatives that would meet the purpose and need of the proposed action. The PEIS analyzed the potential environmental and socioeconomic impacts associated with the proposed action, action alternatives and the no action alternative; including direct, indirect, and cumulative effects, and
The Draft PEIS identified Alternative 1 as the Coast Guard's preferred alternative. Based on public comments, the Coast Guard conducted additional technical analysis which provided greater detail about the context and intensity of environmental impacts. While the significant findings remained consistent, additional information was obtained to better inform the Coast Guard decision-maker. The socioeconomic analysis considered each of the alternatives, as well as different land acquisition options, based on acreage, within each alternative to establish a range of impacts. The socioeconomic study found that the magnitude of socioeconomic impacts to the Port of Seattle are largely dependent upon the amount of acreage that is acquired.
Therefore, acquiring fewer acres of land in Alternative 1 would cause less long-term socioeconomic impacts than acquiring more acres of land in Alternatives 2 or 3. Additionally, Alternative 1 is the environmentally preferable alternative as it avoids and minimizes impacts to biological, visual, and cultural resources. Finally, Alternative 1 would enable the Coast Guard to more quickly achieve the purpose of the proposed action. Consequently, Alternative 1 remains the Coast Guard's preferred alternative in the Final EIS.
The details of all three Action Alternatives are provided in Section 2.5. The Socioeconomic Report can be found in Appendix R of the Final PEIS.
Based on the analysis presented in the Final PEIS, potentially significant direct or indirect adverse impacts could occur to land use, socioeconomics and environmental justice, and cultural resources. Adverse cumulative impacts could occur to geological resources, water resources, biological resources, cultural resources, hazardous materials and wastes, and visual resources. Impacts to all other resource areas would be less-than-significant or beneficial. Base facilities and infrastructure improvements represent a long-term development program that will require a multi-year capital investment strategy. Specific projects may require additional NEPA evaluation and compliance with other environmental laws and regulations when they are programmed for implementation.
Following a 30-day waiting period, after publication of the Environmental Protection Agency's NOA in the
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
Comments are to be submitted on or before February 13, 2025.
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-2475, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Transportation Security Administration, Department of Homeland Security.
60-Day notice.
The Transportation Security Administration (TSA) invites public comment on one currently approved Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0055, abstracted below that we will submit to OMB for an extension in compliance with the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. Specifically, the collection involves the collection of pipeline security incident data, and the cybersecurity coordinator(s) and alternate(s) contact information.
Send your comments by January 14, 2025.
Comments may be emailed to
Christina A. Walsh at the above address, or by telephone (571) 227-2062.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
1. TSA requires all owner/operators subject to the SD's requirements to report actual or potential cybersecurity incidents affecting their information technology and operational technology systems to the Cybersecurity and Infrastructure Security Agency (CISA) within 24 hours of discovery, using the CISA Incident Reporting System.
2. The SD series requires critical pipeline owner/operators to appoint cybersecurity coordinator(s) or alternate(s) at the corporate level and to provide contact information for the coordinators to TSA. To ensure that information reported pursuant to the SD series is identifiable within the system, TSA requires these owners/operators to indicate that they are providing the information pursuant to the SD series.
TSA expects voluntary reporting of pipeline security incidents will occur on an irregular basis. TSA estimates that pipeline owner/operators will report approximately 118 incidents annually, requiring an average of 30 minutes (0.50 hour) to collect, review, and submit event information. The total potential burden to the public for this task is estimated to be 59 hours.
Using the CISA Incident Reporting System, TSA expects the mandatory reporting of pipeline cybersecurity incidents to CISA will occur 20 times per year for each covered pipeline owner/operator. TSA estimates that 100 pipeline owner/operators will take approximately 2 hours to gather the appropriate information to submit each incident report. The potential burden to the public for this task is 20 × 100 × 2 hours = 4,000 hours.
TSA estimates that approximately 100 pipeline owner/operators will report their cybersecurity manager and alternate point of contact information. It will take the pipeline owner/operator approximately 30 minutes (0.50 hour) to do so, and the potential burden for this task is 100 × 0.50 hour = 50 hours.
Therefore, the total hour burden to the public for this information collection request is estimated to be 59 hours (Security Incidents) + 4,000 hours (CISA Reporting) + 50 hours (Cyber POC) = 4,109 hours annually.
Fish and Wildlife Service, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended, and the Alaska National Interest Lands Conservation Act of 1980, as amended, along with other laws as applicable, we, the U.S. Fish and Wildlife Service (FWS), announce the availability of a draft supplemental environmental impact statement (draft supplemental EIS) to consider the effects of a potential land exchange of certain lands owned by the King Cove Corporation with certain lands owned by the U.S. Government and located within the Izembek National Wildlife Refuge and Izembek Wilderness Area. If a land exchange is approved, King Cove Corporation would use the acquired land for a road corridor for noncommercial use. We invite comment on the draft supplemental EIS from the public and local, State, Tribal, and Federal agencies. We will separately be announcing public meetings.
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We will post all written comments on
Bobbie Jo Skibo, Project Leader, by telephone at 907-441-1539; by email at
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA; 42 U.S.C. 4321
The Izembek National Wildlife Refuge (417,533 acres (ac)) and the North Creek (8,452 ac) and Pavlof (1,447,264 ac) units of the Alaska Peninsula National Wildlife Refuge are located at the westernmost tip of the Alaska Peninsula. To the north of the Izembek Refuge is the Bering Sea; to the south is the Pacific Ocean. The Izembek Wilderness covers much of the Izembek National Wildlife Refuge and includes pristine streams, extensive wetlands, steep mountains, tundra, and sand dunes, and provides high scenic, wildlife, and scientific values, as well as opportunities for solitude and recreation. The Izembek National Wildlife Refuge includes the traditional homelands of the Unangax
The King Cove Corporation is an Alaska Native Village Corporation established under the Alaska Native Claims Settlement Act of 1971 (ANCSA; 43 U.S.C. 1601
In the Omnibus Public Land Management Act of 2009 (Pub. L. 111-11, title VI, subtitle E (herein referred to as the 2009 Act)), Congress directed FWS to prepare an EIS under NEPA and its implementing regulations (40 CFR parts 1500-1508) to evaluate the impacts of a proposed land exchange with the State of Alaska and the King Cove Corporation for the purpose of constructing a single-lane gravel road between the communities of King Cove and Cold Bay, Alaska. The 2009 Act required that the road “shall be used primarily for health and safety purposes (including access to and from the Cold Bay Airport) and only for noncommercial purposes,” with limited exceptions. The land exchange contemplated by the 2009 Act would have involved the conveyance of approximately 206 ac within the Izembek Wilderness portion of Izembek National Wildlife Refuge for the road corridor and approximately 1,600 ac of Federal land within the Alaska Maritime National Wildlife Refuge on Sitkinak Island. In exchange, FWS would have received approximately 43,093 ac of land owned by the State of Alaska and approximately 13,300 ac of land owned by the King Cove Corporation. These lands are located around Cold Bay and are adjacent to the North Creek Unit of the Alaska Peninsula National Wildlife Refuge.
In accordance with section 6402(b)(2)(B) of the 2009 Act, an EIS completed in 2013 (2013 EIS; February 6, 2013, 78 FR 8577) analyzed the proposed land exchange and the potential construction and operation of a road between the communities of King Cove and Cold Bay, Alaska, and, among other alternatives, evaluated a specific road corridor through the Izembek Refuge that was identified in consultation with the State of Alaska, the City of King Cove, and the Agdaagux Tribe of King Cove. In accordance with the 2009 Act, subsequent to the preparation of the 2013 EIS and in conjunction with the 2013 record of decision (2013 ROD; February 20, 2014, 79 FR 9759), Secretary of the Interior Sally Jewell decided not to enter a land exchange after determining that the proposed land exchange (including the construction of the proposed road) was not in the public interest.
On July 3, 2019, Secretary of the Interior David Bernhardt signed a memorandum titled “Findings and Conclusions Concerning a Proposed Land Exchange Between the Secretary of the Interior and King Cove Corporation for Lands Within Izembek National Wildlife Refuge, Alaska” (2019 Secretarial Memorandum). That memorandum laid the foundation for the concurrent approval of a land exchange agreement (2019 Exchange Agreement) between the Department of the Interior (Department) and King Cove Corporation. The 2019 Secretarial Memorandum stated that the purpose of the 2019 Exchange Agreement was to allow a road across the Izembek National Wildlife Refuge to improve access by the residents of King Cove to the airport at Cold Bay. Since the authorities under the 2009 Act had expired, the 2019 Exchange Agreement relied on the general exchange authority found at in section 1302(h) of ANILCA. However, the 2019 Exchange Agreement relied in large part on the record developed for the exchange analyzed under the 2013 EIS and rejected by Secretary Jewell in the 2013 ROD.
On June 1, 2020, the District Court for the District of Alaska vacated the 2019 Exchange Agreement based on several legal defects in the decision. On appeal to the Ninth Circuit Court of Appeals, a three-judge appellate panel reversed the district court. However, an en banc panel of the Ninth Circuit then vacated the three-judge panel's decision and agreed to a new review. On March 14, 2023, Secretary of the Interior Deb Haaland issued a new decision memorandum withdrawing the Department from the 2019 Exchange Agreement. That decision memorandum identified as a procedural flaw the failure to consider the effects of the exchange on subsistence uses, and highlighted shortcomings in the record regarding NEPA and ESA analyses. In addition, the Secretary expressed significant policy concerns regarding the nonpublic manner in which the 2019 Exchange Agreement was accomplished, as well as the terms of the Exchange Agreement, which differed from the exchange evaluated in the 2013 EIS. In June 2023, the Ninth Circuit dismissed the lawsuit because the issue had become moot due to Secretary Haaland's decision memorandum.
On May 18, 2023 (88 FR 31813), we published a
While the authorities in the 2009 Act remain expired, the FWS has prepared a draft supplemental EIS to address a potential exchange under section 1302(h) of ANILCA. The FWS's draft supplemental EIS analysis assesses the potential impacts of a land exchange and road construction and use, allows
You may submit written comments and materials concerning the draft supplemental EIS by one of the methods listed in
If you submit a comment via
The meaningful input of Alaska Native Tribes and Alaska Native Corporations is of critical importance to the supplemental EIS. Therefore, and as expressed in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” the Federal officials that have been delegated authority by the Secretary are committed to honoring the unique government-to-government political relationship that exists between the Federal Government and federally recognized Tribes. Consultation with Alaska Native Corporations is based on Public Law 108-199, div. H, sec. 161, January 23, 2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V, sec. 518, December 8, 2004, 118 Stat. 3267, which provides that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Indian Tribes under Executive Order No. 13175.” FWS will hold individual consultation meetings upon request. The Secretary of the Interior will consider Alaska Native Tribes' and Alaska Native Corporations' information, input, and recommendations, and address their concerns as much as practicable.
U.S. Geological Survey, Department of the Interior.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act (FACA) of 1972, the U.S. Geological Survey (USGS) is publishing this notice to announce that a Federal Advisory Committee meeting of the National Geospatial Advisory Committee (NGAC) will take place and is open to members of the public.
The following meetings will be held as a webinar:
• Wednesday, December 4, 2024 from 1 p.m.-5 p.m. eastern standard time;
• Wednesday, February 19, 2025 from 1 p.m.-5 p.m.; and Thursday, February 20, 2025 from 1 p.m.-5 p.m. eastern standard time.
The following meeting will be held in person:
• Wednesday, June 11, 2025 from 9 a.m. to 5 p.m.; and on Thursday, June 12, 2025 from 9 a.m. to 4 p.m. eastern daylight time.
The December 2024 and February 2025 meetings will be held online and via teleconference. The June 2025 meeting will be held in the South Penthouse Conference Room of the Department of the Interior Building, 1849 C Street NW, Washington, DC. Members of the public may attend the meeting in person or can attend via webinar. Registration instructions for both the online and in person meetings will be posted at
Mr. Josh Delmonico, Federal Geographic Data Committee (FGDC), USGS, by mail at 12201 Sunrise Valley Drive, MS 590, Reston, VA 20192; by email at
Individuals in the United States who are deaf, blind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
This meeting is being held under the provisions of the FACA of 1972 (5 U.S.C. ch. 10), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR part 102-3.
Before including your address, phone number, email address, or other personally identifiable information (PII) in your comment, you should be aware that your entire comment—including your PII—may be made publicly available at any time. While you may ask us in your comment to withhold your PII from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLMPA), the Bureau of Land Management (BLM) has prepared a Draft Resource Management Plan (RMP) and Draft Environmental Impact Statement (EIS) for the Newcastle Field Office and Nebraska Resource Management Plans (Newcastle and Nebraska RMPs) and by this notice is announcing the opening of the comment period on the Draft RMP/EIS and the BLM's proposed areas of critical environmental concern (ACECs).
This notice announces the opening of a 90-day comment period for the Draft RMP/EIS beginning with the date following the Environmental Protection Agency's (EPA) publication of its Notice of Availability (NOA) of the Draft RMP/EIS in the
To afford the BLM the opportunity to consider comments in the Proposed RMP/Final EIS, please ensure that the BLM receives your comments prior to the close of the 90-day public comment period or 15 days after the last public meeting, whichever is later.
In addition, this notice also announces the opening of a 90-day comment period for ACECs. The BLM must receive your ACEC-related comments by February 13, 2025.
The BLM will be holding multiple public meetings during the public comment period and the dates, times, and locations of these public meetings will be announced through public notices, news releases, social media, and mailings at least 15 days prior to the meetings.
The Draft RMP/EIS is available for review on the BLM ePlanning project website at
Written comments related to the Newcastle and Nebraska RMPs may be submitted by any of the following methods:
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Documents pertinent to this proposal may be examined online at
Kathleen T. Lacko, Project Manager, telephone (307) 261-7536; address BLM High Plains District Office, 2987 Prospector Drive, Casper, WY 82604; email
This document provides notice that the BLM Wyoming State Director has prepared a Draft RMP/EIS and announces the comment period on the Draft RMP/EIS and the BLM's proposed ACECs. The planning area includes Crook, Weston, and Niobrara Counties in Wyoming and all counties in Nebraska, and encompasses approximately 287,900 acres of surface public lands and 1,738,900 acres of Federal mineral estate in Wyoming, and approximately 5,100 acres of surface public lands and 223,900 acres of Federal mineral estate in Nebraska. In addition to BLM-managed surface lands, the planning area includes the mineral estate beneath the following:
The purpose of the Newcastle and Nebraska RMPs/EIS is to provide a comprehensive framework to guide management of BLM-administered surface land in the planning area. The RMPs/EIS will incorporate new data, address land use issues and conflicts, and specify where and under what circumstances activities will be allowed on BLM-administered surface lands. The objectives, land use allocations, and management decisions will be based on the principals of multiple use and sustained yield, except where a tract of such public land has been dedicated to specific uses according to another provision of law. All management direction must meet the objectives of the BLM's multiple use management
The Newcastle Field Office (NFO) has determined the need to update the two RMPs it relies on to manage the public land and Federal mineral estate in the planning areas. Assessments of these plans showed they require updating to address new information and changes to resources and resource uses within the planning area since the BLM completed the NFO RMP/EIS in 2000 and the Nebraska RMP in 1992. The revised RMPs will replace the existing Newcastle RMP/Record of Decision (ROD) and Nebraska RMP/ROD.
The BLM has analyzed four alternatives in detail, including the no action alternative.
The State Director has identified Alternative D as the preferred alternative, as it. best meets the State Director's planning guidance and the purpose and need. This alternative balances components (objectives and management directions) of the other alternatives considered (Alternatives A, B, and C) and allows for multiple use with a variety of prescriptive actions to allow protections with flexibility.
Appendix C in Volume 2 of the Draft EIS is the Wyoming BLM Mitigation Guidelines for Surface Disturbing and Disruptive Activities. Mitigation in Nebraska will be in accordance with BLM policy.
Consistent with land use planning regulations at 43 CFR 1610.7-2(b), the BLM is announcing the opening of a 90-day comment period on the ACECs proposed for designation in the preferred alternative. Comments may be submitted using any of the methods listed in the
The proposed ACECs included in the preferred alternative for the Newcastle RMP are:
• Whoopup Canyon ACEC is an existing ACEC that has approximately 1,400 acres and contains rock art ranging from 2,400-11,500 years old. The preferred alternative would expand the current ACEC by approximately 200 acres, making it a total of approximately 1,600 acres.
• The Little Missouri Antelope Trap ACEC is a Native American antelope trap complex containing trap structures and drive lines, occupation sites, and ceremonial significance, located in Crook County. Proposed for its rare and sensitive cultural resources, the boundary of the Little Missouri Antelope Trap ACEC in Alternative B (9,500 acres) encompasses adjacent non-contributing cultural sites and includes an expanded boundary that would provide increased protection of the cultural setting of the trap site. In Alternative D, the Preferred Alternative, the ACEC would cover approximately 5,300 acres, with the boundary of the ACEC refined based on information received from Tribal field visits, academic studies, and public and cooperating agency input. This information indicated the importance of not only the physical trap features, but also the landscape, setting, and ceremonial features directly contributing to the significance of the Little Missouri Antelope Trap.
The BLM will provide additional opportunities for public participation consistent with the NEPA and land use planning processes, including a 30-day public protest period and a 60-day Governor's consistency review on the Proposed RMP. The Proposed RMP/Final EIS is anticipated to be available for public protest July 2025 with an Approved RMP and ROD October 2025.
The BLM will be holding five public meetings in the following locations: in-person meetings will be held in Sundance, Newcastle, and Lusk, Wyoming, and Scottsbluff, Nebraska, and one meeting will be held virtually. The specific date(s) and location(s) of these meetings will be announced at least 15 days in advance through local media, newspapers, and the ePlanning project page:
The BLM will continue to consult with Indian Tribal Nations on a government-to-government basis in accordance with Executive Order 13175, BLM MS 1780, and other Departmental policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Government-to-government meetings will continue, and field visits are planned for interested Tribes.
During public review of this Draft RMPs/EIS, the BLM is seeking constructive input regarding the proposals for managing resources and resource uses.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of availability.
In compliance with the National Environmental Policy Act of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) has prepared a Proposed Resource Management Plan Amendment (RMPA) and Final Environmental Impact Statement (EIS) for the Greater Sage-Grouse Rangewide Planning and by this notice is announcing the start of a 30-day protest period of the Proposed RMPA to the BLM Director.
This notice announces the beginning of a 30-day protest period to the BLM on the Proposed RMPA. Protests must be postmarked or electronically submitted on the BLM's ePlanning site within 30 days of the date that the Environmental Protection Agency (EPA) publishes its Notice of Availability (NOA) in the
The Proposed RMPA, Final EIS, and associated documents are available on the BLM ePlanning project website at:
Instructions for filing a protest with the BLM for the Greater Sage-Grouse Rangewide Planning can be found at:
Pat Deibert, BLM National Sage-Grouse Conservation Coordinator; telephone: 720-447-8107; address: 5353 Yellowstone Road, Cheyenne, WY 82009; email:
The RMPA would change goals, objectives, and management from previous planning efforts in 77 land use plans to enhance Greater sage-grouse (GRSG) conservation through management of sagebrush habitats on BLM-administered lands. The planning area includes portions of 10 Western states with GRSG habitat: California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming, and encompasses nearly 121 million acres of BLM-administered public lands. Because this effort is focused on GRSG habitat management, decisions resulting from this amendment effort could affect up to 69 million acres of BLM-administered lands associated with the applicable GRSG habitat management areas. No decisions are being made on National Forest System lands or the underlying Federal mineral estate as part of this process.
This RMPA builds on existing RMP direction related to GRSG conservation that was established in earlier planning efforts. The 2015 GRSG RMPA amended or revised RMPs in the planning area to provide for GRSG conservation on public lands. In the 2019 GRSG RMPAs, the BLM amended some of the 2015 GRSG plan decisions in the states of California, Colorado, Idaho, Nevada, Oregon, Utah, and Wyoming. On October 16, 2019, the United States District Court for the District of Idaho preliminarily enjoined the BLM from implementing the 2019 GRSG RMPAs (Case No. 1:16-CV-83-BLW).
The BLM's purpose and need is to amend certain 2015 and 2019 GRSG RMPA goals, objectives, allocations, and management actions in order to respond to updated scientific information and changing land uses and provide for consistent and effective rangewide conservation based on biological information that is responsive to locally relevant habitat variability. These were selected based on an internal review of the effectiveness of 2015 and 2019 RMPA decisions and the degree to which those decisions sufficiently and appropriately addressed existing threats to GRSG habitats and continued population declines, while balancing the BLM's ability to manage public lands for other uses, and were additionally informed by updated scientific findings and feedback received from Tribal, Federal, state, and local agencies and the public. All goals, objectives, or decisions from the 2015 or 2019 RMPAs that are not being considered for amendment would remain in place.
In preparing the Proposed RMPA, the BLM analyzed six alternatives in detail, including the No Action Alternative. Alternative 1 includes the applicable elements (goals, objectives, and management direction) of the 2015 GRSG amendment efforts. Alternative 2, the No Action Alternative, includes the applicable RMP elements from the 2019 GRSG amendment effort. Alternative 3 emphasizes GRSG conservation and protection and has the highest amount of preservation measures of the alternatives and includes the identification of Areas of Critical Environmental Concern (ACECs). Alternative 4 emphasizes conservation while providing more allowances for public land uses than Alternative 3 and adjusts GRSG habitat management areas based on new information and science available since the previous planning efforts. Alternative 5, identified as the Preferred Alternative in the Draft RMPA and EIS, balances conservation with increased levels of site-specific allowances for public land uses and aligns habitat management areas with new information and science. Alternative 6 applies all the same habitat management areas and associated management as Alternative 5 but includes the identification of ACECs.
Public review of the Draft RMPA and EIS began on March 15, 2024, and ended on June 13, 2024. During the 90-day comment period, the BLM held 13 public meetings, including two virtual meetings and 11 in-person meetings throughout the planning area. Over 38,000 submissions were received, including about 6,000 individual comments. Major comment themes included management direction for renewable energy, lands and realty actions, fluid minerals, livestock grazing and predation, and the RMPA processes for mitigation, disturbance caps, and adaptive management. Comments received on the Draft RMPA and EIS were considered and addressed in the Proposed RMPA and Final EIS. In response to public and cooperating comments and internal review of the alternatives and effects described in the Draft EIS, the BLM developed the Proposed RMPA. The Proposed RMPA increases protections for GRSG from the Preferred Alternative while maintaining an appropriate balance of public land uses. The Proposed RMPA incorporates
The BLM planning regulations state that any person who participated in the preparation of the RMP and has an interest which will or might be adversely affected by approval of the Proposed RMPA may protest its approval to the BLM. Protest on the Proposed RMPA constitutes the final opportunity for administrative review of the proposed land use planning decisions prior to the BLM adopting an approved RMPA. Instructions for filing a protest with the BLM regarding the Proposed RMPA may be found online (see
Before including your phone number, email address, or other personal identifying information in your protest, you should be aware that your entire protest—including your personal identifying information—may be made publicly available at any time. While you can ask us in your protest to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of availability.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) has prepared a Draft Resource Management Plan (RMP) Amendment and Draft Environmental Impact Statement (EIS) for the Purple Sage Energy Center Project (Project) and by this notice is providing information announcing the opening of the comment period on the Draft RMP Amendment/EIS. The Purple Sage Energy Project was formerly known as the Golden Currant Solar Project.
This notice announces the opening of a 90-day comment period for the Draft RMP Amendment/EIS beginning with the date following the Environmental Protection Agency's (EPA) publication of its Notice of Availability (NOA) in the
To afford the BLM the opportunity to consider comments on the Draft RMP Amendment/EIS, please ensure your comments are received prior to the close of the 90-day comment period or 15 days after the last public meeting, whichever is later.
The BLM will be holding one in-person public meeting and one virtual public meeting during the public comment period.
Details on public meetings and pertinent documents will be provided on the National NEPA Register project website:
The Draft RMP Amendment/EIS is available for review on the BLM National NEPA Register project website at
Written comments related to the Draft RMP Amendment/EIS for the Purple Sage Energy Center Project may be submitted by any of the following methods:
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Jessica Headen, Project Manager, telephone (702) 515-5206; address 4701 N Torrey Pines Drive, Las Vegas, Nevada 89130; email
This document provides notice that the BLM has prepared a Draft RMP Amendment/
The planning area in Clark and Nye counties, Nevada, encompasses approximately 9,890,365 acres within the Southern Nevada District area.
A BLM designated energy corridor, Segment #224-225, North Pahrump/U.S. 95 to Las Vegas/Ivanpah Valley (a Section 368 energy corridor), along the Clark County/Nye County border intersects a portion of the Project site. A locally designated utility corridor, established in the 1998 Las Vegas RMP (the RMP-designed utility corridor), intersects a portion of the Project site. An amendment to the 1998 Las Vegas RMP is being considered to modify these two existing undeveloped corridors to avoid the Project site.
The BLM is utilizing the NEPA substitution process to comply with the requirements of Section 106 of the National Historic Preservation Act, 54 U.S.C. 306108, consistent with 36 CFR 800.8(c). The BLM, as lead Federal agency, has incorporated information and the steps of the Section 106 process into the Draft EIS, and publication of the Draft EIS will allow the consulting parties and the public an opportunity to review and comment on the process as provided in 36 CFR 800.8(c)(2).
The need for the BLM's action (processing the Applicant's application) is to respond to the Noble Solar, LLC's (Applicant) request for a right-of-way (ROW) authorization to construct, operate, maintain, and decommission a proposed solar facility, associated battery storage, and an interconnection to the regional transmission system (Project), in accordance with the BLM's responsibility under title V of FLPMA and 43 CFR part 2800. The Project would sit on approximately 4,456 acres of BLM-managed public land located in the Pahrump Valley in Clark County designated as a solar variance area. The site is approximately five miles southeast of Pahrump, 26 miles west of Las Vegas, and less than two miles southwest of State Route 160. The BLM's action of considering the ROW application also meets the BLM's obligation to contribute towards the legislative and administrative goals of advancing the development of renewable energy production on Federal public lands as directed by section 3104 of the Energy Act of 2020 and Executive Order 14057.
The Project as proposed would not conform to the 1998 Las Vegas RMP as required by 43 CFR 1610.5-3(a). The BLM would need to amend the 1998 Las Vegas RMP to bring the Project into compliance. In particular, the Applicant's proposed Project does not conform with the management objectives for the two undeveloped utility corridors that intersect the Project site.
The purpose of the BLM's action is to determine if the Applicant's Project and alternatives are consistent with relevant laws, regulations, and policies, and to consider whether to grant, grant with modifications, or deny the ROW. The purpose of the Draft RMP Amendment is to ensure that any development of renewable energy production in the general vicinity of the Applicant's proposed Project site conforms with the RMP's provisions, as provided for in 43 CFR 1610.5-3(c), specifically by modifying the location of the utility corridors to avoid the Project site.
The Draft RMP Amendment/EIS addresses the direct, indirect, and cumulative environmental impacts of the Proposed Action and alternatives. Alternatives to the Proposed Action were developed by the BLM to avoid or reduce various resource conflicts. Key resource constraints include habitat for and presence of Mojave desert tortoise, which is listed as threatened under the Endangered Species Act; over allocated groundwater resources; paleontological resources; Pahrump Valley buckwheat; native desert vegetation at the Project site; recreation use in the surrounding area; proximity to local communities; and generation of dust.
The BLM has analyzed three alternatives in detail, including the No Action Alternative. These are the Applicant Proposed Action, Alternative Action 1 (BLM preferred alternative), and the No Action Alternative.
Alternative Action 1, the BLM preferred alternative that is also referred to as the Resources Integration Alternative, was identified in response to issues raised by the public and agency considerations. The intent of Alternative 1 is to minimize long-term disturbance to vegetation and soils within the solar facility by setting restoration standards to ensure that long-term disturbance to vegetation is minimized. The established disturbance threshold for intensive disturbance construction methods, such as grading, disc and roll, and spot grading, under the Resources Integration Alternative is 20 percent of the development areas. Given the demonstrated limitations with equipment tolerances and the steep slopes of the development areas of the Project site, it may be necessary to utilize intensive disturbance construction methods for up to 35 percent of the development area for development of the project. Intensive disturbance methods within the development areas that are not for permanent facilities, such as roads, inverters, substations, or battery energy storage systems, that exceed the 20 percent threshold established for the Resources Integration Alternative would be subject to additional restoration requirements. Restoration would be implemented in accordance with and to meet the 60 percent native vegetation density standards required for the non-graded areas in the panel array blocks.
The No Action Alternative would be a continuation of existing conditions and the ROW would not be approved.
The BLM further considered a number of additional alternatives but dismissed these alternatives from detailed analysis as explained in the Draft RMP Amendment/EIS and Alternatives Report.
The BLM has identified Alternative Action 1—Resources Integration Alternative as the preferred alternative. Alternative Action 1 was found to best meet the BLM's planning guidance and is designed to be a Project lifecycle alternative as the alternative addresses not only construction, but also operations, maintenance, and decommissioning of the solar facility.
The BLM included seventeen mitigation measures including, but not limited to, the following measures to address key resources:
These mitigation measures, along with Project Design Features required by the Southern Nevada District Office, Solar PEIS, management plans, and interagency operating procedures, are provided in full in Appendix B of the Draft RMP Amendment/EIS.
The BLM will provide additional opportunities for public participation consistent with the NEPA and land use planning processes, including a 30-day public protest period and a concurrent 60-day Governor's consistency review on the Proposed RMP Amendment. The Proposed RMP Amendment/Final EIS is anticipated to be available for public protest by early summer 2025, and if the Project is authorized, the approved RMP Amendment and Record of Decision would be available by late summer 2025.
The BLM will continue to consult with Indian Tribal Nations on a government-to-government basis in accordance with Executive Order 13175, BLM MS 1780 and other Departmental policies. Tribal concerns will be given due consideration.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of availability.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) announces the availability of the Final Environmental Impact Statement (EIS) for the Jove Solar Project.
The BLM will not issue a decision on the proposal for a minimum of 30 days after the date that the Environmental Protection Agency (EPA) publishes its Notice of Availability (NOA) in the
The Final EIS and documents pertinent to this proposal are available for review on the BLM ePlanning project website at
Derek Eysenbach, Project Manager, at
Jove Solar, LLC (Applicant) is seeking a 30-year right-of-way (ROW) to use 3,495 acres administered by the BLM Yuma Field Office and 38 acres administered by La Paz County to construct, operate and maintain, and decommission a utility-scale solar photovoltaic (PV) facility, called the Jove Solar Project (the Project). The Project would be located in southeastern La Paz County, Arizona, south of Interstate-10 midway between Phoenix and the California border, approximately 22 miles east-southeast of the community of Brenda and the I-10/Highway 60 junction, and 30 miles west of the community of Tonopah. The Project, as proposed, would consist of up to 1.2 million solar PV modules and associated infrastructure, including new and improved roads, powerlines for collection and transmission of electricity, and operation and maintenance facilities. The Project would interconnect at the Cielo Azul Switchyard adjacent to the Ten West Link 500-kilovolt (kV) transmission line and have a generation capacity of 600 megawatts or more. The initial application in 2019 was received under the company name Taurus Solar; the project name was revised to Jove Solar in an amended application on August 9, 2022. The Project is proposed within a solar variance area identified in the BLM Western Solar Plan (2012), and after conducting the variance review process described in that Plan, the BLM has determined that it is appropriate for the project to move forward for additional review and analysis under NEPA.
The BLM's purpose and need is to respond to the ROW application for a 30-year grant for the Project submitted by the Applicant under FLPMA Title V (43 U.S.C. 1761). The BLM is responsible under FLPMA and its ROW regulations for managing the public lands under principles of multiple use and sustained yield, including by considering applications for the generation of electric energy on public lands. (43 U.S.C. 1761(a)(4)). In the course of reviewing applications for a ROW to generate electric energy on public lands, the BLM must comply with FLPMA, the BLM ROW regulations, the Council on Environmental Quality regulations implementing NEPA, the Department of the Interior NEPA regulations, and other applicable Federal laws and regulations.
Under the Proposed Action, the BLM would grant a 30-year ROW for the Project, which would have a net generating capacity of 600 megawatts alternating current (MWac) and span 3,495 acres of public land administered by the BLM Yuma Field Office, as well as 38 acres of La Paz County land. The Project would include solar PV modules, direct current cabling and combining switchgear, inverters, voltage collection systems, transformers, monitoring and controls systems, operations and maintenance facilities, and above-ground electrical connection lines. The Project would use a
The Final EIS analyzes three alternatives:
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Based on the analyses contained in the Final EIS for the proposed Jove Solar Project, and after carefully considering input from the public and cooperating agencies, the BLM has selected the
In addition to making the Draft EIS available for public comment, the BLM hosted one virtual public meeting during the comment period. The BLM received 26 written comments, including from Federal and State agencies, non-governmental organizations, construction and equipment vendors, Tribal Nations, and members of the general public. The BLM addressed these comments in the Final EIS. The BLM will continue to consult with Indian Tribal Nations on a government-to-government basis in accordance with Executive Order 13175, the BLM Manual Section (MS) 1780, and other Departmental policies. Public comments received on the Draft EIS and internal BLM review were considered and incorporated as appropriate into the Final EIS. Public comments and internal BLM review resulted in the addition of clarifying text, including the elimination of sub-alternatives no longer being considered. The revisions and edits have not significantly changed the impact analyses.
The BLM anticipates releasing a Record of Decision in December 2024. The BLM will decide whether to issue a decision granting, granting with modifications, or denying the application for the ROW.
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before November 2, 2024, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by December 2, 2024.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before November 2, 2024. Pursuant to Section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations submitted by State or Tribal Historic Preservation Officers.
A request for removal has been made for the following resource(s):
Additional documentation has been received for the following resource(s):
Bureau of Ocean Energy Management, Interior.
Notice of availability; final environmental impact statement.
The Bureau of Ocean Energy Management (BOEM) announces the availability of the final environmental impact statement (FEIS) for SouthCoast Wind Energy LLC's (SouthCoast Wind) construction and operations plan (COP) for its proposed SouthCoast Wind Project (Project) offshore Massachusetts and Rhode Island. The FEIS analyzes the potential environmental impacts of the Project as described in the COP (the proposed action) and the alternatives to the proposed action, including the no action alternative. The FEIS will inform BOEM's decision whether to approve, approve with conditions, or disapprove the COP.
The FEIS and detailed information about the Project, including the COP, can be found on BOEM's website at:
Genevieve Brune, BOEM Office of Renewable Energy Programs, 45600 Woodland Road, Sterling, Virginia 20166, (703) 787-1553 or
The Project would be located about 26 nautical miles (nm) (48 kilometers) south of Martha's Vineyard and 20 nm (37 kilometers) south of Nantucket in the area defined in BOEM's renewable energy lease number OCS-A 0521 (Lease Area). The Lease Area covers approximately 127,388 acres. The Project would be developed in two parts or projects: Project 1 refers to the
Occupational Safety and Health Administration (OSHA), Department of Labor.
Notice.
Federal OSHA currently has coverage over private sector employers at Hill Air Force Base and the Tooele Army Depot while the Utah State Plan covers private sector employers on all other United States military facilities within the State. This document gives notice of OSHA's approval of a change to the State of Utah's Occupational Safety and Health State Plan reinstating Federal OSHA enforcement authority over private sector employment on all United States military facilities and bases in Utah.
Applicability Date: November 15, 2024.
Section 18 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 667 (OSH Act), provides that States that assume responsibility for developing and enforcing their own occupational safety and health standards may do so by submitting and obtaining Federal approval of a State Plan. State Plan approval occurs in stages, which include initial approval under section 18(c) of the OSH Act and, ultimately, final approval under section 18(e), signifying relinquishment of Federal enforcement authority with respect to occupational safety and health issues covered by the State Plan.
The Utah State Plan was initially approved under section 18(c) of the OSH Act on January 10, 1973 (38 FR 1178). The Utah State Plan is administered by the Utah Occupational Safety and Health Division (UOSH) of the Utah Labor Commission. On July 16, 1985, OSHA announced the final approval of the Utah State Plan pursuant to section 18(e) and amended 29 CFR part 1952 to reflect the Assistant Secretary's decision (50 FR 28770). As a result, Federal OSHA relinquished its enforcement authority regarding occupational safety and health issues covered by the Utah State Plan.
The Utah State Plan covers most private sector and all State and local government workers. The Utah State Plan does not cover: Federal Government employers, including the United States Postal Service (USPS), contract workers and contractor-operated facilities engaged in USPS mail operations; maritime employment; employment at the United States Department of Energy's (DOE) Naval Petroleum and Oil Shale Reserve; all working conditions of aircraft cabin crewmembers onboard aircraft in operation; the enforcement of the field sanitation standard, 29 CFR 1928.110, and the temporary labor camps standard, 29 CFR 1910.142, with respect to any agricultural establishment where workers are engaged in “agricultural employment”—within the meaning of the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(3)
On March 25, 2024, the Utah State Plan requested that Federal OSHA resume enforcement authority over all private-sector employment on United States military facilities and bases within the State of Utah. Federal OSHA already retained enforcement authority over two bases in the State, Hill Air Force Base and the Tooele Army Depot, which includes the Tooele Chemical Demilitarization Facility. The Utah State Plan cited access restrictions impeding timely inspections and investigations on military installations as the primary reason for requesting this change in coverage. After discussions between Federal OSHA and the Utah State Plan, both agencies agreed that Federal OSHA coverage of all private sector employers on United States military facilities and bases was the best solution to ensure prompt and effective protection of private sector workers on such military facilities and bases in Utah. Accordingly, notice is hereby given of the change in Federal enforcement authority over private sector employers on all United States military facilities and bases in Utah, and coverage is transferred from the Utah State Plan to Federal OSHA.
Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, authorized the preparation of this notice. OSHA is issuing this notice under the authority specified by section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667), Secretary of Labor's Order No. 8-2020 (85 FR 58383), and 29 CFR parts 1902, 1953 and 1955.
Office of Government Information Services (OGIS), National Archives and Records Administration (NARA).
Notice of meeting; correction.
We published a notice in the
The document published at 89 FR 88066-88067 on November 6, 2024. The meeting date remains the same.
Kirsten Mitchell, Designated Federal Officer for this committee, by email at
In the
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
The meeting will be hybrid, with some Advisory Committee members participating in person and others participating virtually. Members of the public can view the meeting virtually. To attend the virtual meeting, please send your request for the virtual meeting link to the following email:
Additional meeting information, an updated agenda, and registration information will be posted on the AC's website at
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
Please see the following link to learn how to attend the event via Zoom:
The National Science Board hereby gives notice of the scheduling of a teleconference of the National Science Board/National Science Foundation Commission on Merit Review (MRX) for the transaction of National Science Board business pursuant to the NSF Act and the Government in the Sunshine Act.
The MRX meeting is scheduled for Monday, November 18, 2024, from 3:00 p.m.-6:00 p.m. Eastern.
This meeting will be via videoconference through the National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314.
Closed.
The agenda is: Commission Chair's remarks about the agenda; Discussion of Commission's draft report; and Commission Chair's closing remarks.
Point of contact for this meeting is: Chris Blair,
Nuclear Regulatory Commission.
Notice; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an environmental assessment (EA) and finding of no significant impact (FONSI) for the Tennessee Valley Authority (TVA) exemption request for the Clinch River Nuclear (CRN) Site. Specifically, TVA is requesting an exemption, pursuant to NRC regulations, to allow the conduct of certain excavation support activities at the CRN Site prior to the issuance of a construction permit, which are otherwise not permitted by NRC regulations.
The EA and FONSI referenced in this document are available on November 15, 2024.
Please refer to Docket ID NRC-2024-0146 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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Joseph Giacinto, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-0714; email:
By application dated November 30, 2023, (ADAMS Accession No. ML23335A100), TVA submitted a request for an exemption from section 50.10 of title 10 of the
The NRC has prepared an EA (ADAMS Accession No. ML24312A321) as part of its review of the exemption request in accordance with the requirements of 10 CFR 51.21, “Criteria for and identification of licensing and regulatory actions requiring environmental assessments.” Based on the results of the EA, the NRC has determined not to prepare an environmental impact statement (EIS) and is issuing a FONSI pursuant to 10 CFR 51.31.
In accordance with 36 CFR 800.8(c), the NRC used the National Environmental Policy Act of 1969, as amended (NEPA) process to comply with section 106 of the National Historic Preservation Act of 1966, as amended (NHPA), in lieu of the procedures set forth in 36 CFR 800.3 through 800.6.
The proposed action is for the NRC to issue an exemption authorizing the early excavation activities prior to the submittal of the construction permit (CP) application. The NRC issuance of the exemption would allow TVA to install and leave in place components of the initial ground support system for the reactor building (RB) excavation, such as rock bolts to secure unstable rock blocks, wire mesh and non-structural sprayed concrete linings to stabilize exposed rock walls, horizontal gravity drains to manage groundwater, and pressurized grout to seal water entry. The initial ground support system could also include steel soldier beams with timber lagging, rock bolts to secure soldier beams, and reinforced concrete compression rings to support the soldier beams. The exemption is needed due to the timing of initial ground support system installation, which serves no function with respect to structural RB support or radiological health or safety but is needed for construction worker safety during RB excavation. If excavation for the RB is delayed until after the issuance of the CP, the construction schedule and commercial operation could undergo a delay of 12-24 months. TVA anticipates that the cost of any delay of the commercial operation of Clinch River Nuclear Unit 1 would be substantial.
In the EA, the NRC staff assessed the potential direct and indirect environmental impacts from the proposed action associated with the following relevant resource areas: land use and visual resources, air quality and noise, hydrogeology and water resources, ecological resources, historic and cultural resources, socioeconomics and environmental justice, human health, and nonradiological waste management. The NRC staff determined that the environmental impacts of the proposed action would be SMALL for each potentially affected environmental resource, meaning that the environmental effects are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource.
The NRC staff identified alternatives to the proposed action and the environmental impacts of the alternatives, as appropriate. The NRC staff determined that there are no alternatives that meet the need for the proposed action and that are environmentally preferrable to the proposed action.
The proposed action before the NRC is whether to issue the exemption request authorizing early excavation at the CRN Site. As required by 10 CFR 51.21, the NRC prepared the EA. This FONSI incorporates by reference the EA summarized in Section II of this notice. Based on the NRC staff's determination in the EA that the environmental impacts would be SMALL for each potentially affected resource area, the NRC staff has determined that the proposed action will not have a significant impact on the quality of the human environment. Accordingly, the NRC staff has made a determination that the preparation of an EIS is not required for the proposed action and that a FONSI is warranted.
For the Nuclear Regulatory Commission.
Pension Benefit Guaranty Corporation.
Notice of request for extension of OMB approval of an information collection, with modifications.
The Pension Benefit Guaranty Corporation (PBGC) is requesting that the Office of Management and Budget extend approval, under the Paperwork Reduction Act, of the collection of information (with modifications) (OMB Control Number 1212-0054, expires January 31, 2025) related to PBGC's booklet, Qualified Domestic Relations Orders & PBGC. This notice informs the public of PBGC's intent and solicits public comment on the collection of information.
Comments must be submitted by December 16, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
All comments received will be posted without change to PBGC's website,
A copy of the request will be posted on PBGC's website at
Karen Levin (
A defined benefit pension plan that does not have enough money to pay benefits may be terminated if the employer responsible for the plan faces severe financial difficulty, such as bankruptcy, and is unable to maintain the plan. In such an event, PBGC becomes trustee of the plan and pays benefits, subject to legal limits, to plan participants and beneficiaries.
The benefits of a pension plan participant generally may not be assigned or alienated. Title I of ERISA provides an exception for domestic relations orders (DRO) that relate to child support, alimony payments, or marital property rights of an alternate payee (a spouse, former spouse, child, or other dependent of a plan participant). The exception applies only if the DRO meets specific legal requirements that make it a qualified domestic relations order (QDRO).
When PBGC is trustee of a plan, it reviews submitted domestic relations orders to determine whether the order is qualified before paying benefits to an alternate payee. The requirements for submitting a domestic relations order and the contents of such orders are established by statute. The models and the guidance provided by PBGC assist parties by making it easier for them to
The existing collection of information was approved under OMB control number 1212-0054, expiring on January 31, 2025. On August 8, 2024, PBGC published in the
PBGC estimates that it will receive approximately 253 domestic relations orders each year from prospective alternate payees and participants. PBGC further estimates that the total average annual burden of this collection of information will be approximately 190 hours and $177,100.
Issued in Washington, DC.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
Pursuant to 39 CFR 3041.405, the Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to Competitive negotiated service agreement(s). The request(s) may propose the addition of a negotiated service agreement from the Competitive product list or the modification of an existing product currently appearing on the Competitive product list.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
Section II identifies the docket number(s) associated with each Postal Service request, if any, that will be reviewed in a public proceeding as defined by 39 CFR 3010.101(p), the title of each such request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each such request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 and 39 CFR 3000.114 (Public Representative). Section II also establishes comment deadline(s) pertaining to each such request.
The Commission invites comments on whether the Postal Service's request(s) identified in Section II, if any, are consistent with the policies of title 39. Applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3041. Comment deadline(s) for each such request, if any, appear in Section II.
Section III identifies the docket number(s) associated with each Postal Service request, if any, to add a standardized distinct product to the Competitive product list or to amend a standardized distinct product, the title of each such request, the request's acceptance date, and the authority cited by the Postal Service for each request. Standardized distinct products are negotiated service agreements that are variations of one or more Competitive products, and for which financial models, minimum rates, and classification criteria have undergone advance Commission review.
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None.
This Notice will be published in the
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 November 4, 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 November 7, 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 November 5, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 5, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 5, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 5, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 4, 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 November 7, 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 November 6, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 5, 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
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 6, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 6, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 5, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 5, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 6, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 6, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 November 8, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 5, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 4, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 6, 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 November 4, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 4, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 6, 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 November 6, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 6, 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 November 5, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 4, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 5, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 5, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 4, 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 November 8, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 5, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 8, 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 November 6, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby
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 November 6, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 5, 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 November 7, 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 November 6, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 4, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 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 C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 6, 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
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 7, 2024, it filed with the Postal Regulatory Commission a
U.S. Small Business Administration.
Amendment 4.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of South Carolina (FEMA-4829-DR), dated October 6, 2024.
Issued on November 7, 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.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of South Carolina, dated October 6, 2024, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Louisiana (FEMA-4817-DR), dated September 23, 2024.
Issued on November 7, 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.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Louisiana, dated September 23, 2024, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration (SBA).
Notice of open Federal advisory committee meeting.
The SBA is issuing this notice to announce the date, time, and agenda for the next meeting of the Interagency Task Force on Veterans Small Business Development (IATF).
Wednesday, December 11, 2024, from 1 p.m. to 3:30 p.m. eastern time.
The public meeting will be held virtually via Microsoft Teams.
The virtual meeting is open to the public; however advance notice of attendance is strongly encouraged. To RSVP and confirm attendance, the general public should email
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. appendix 2), SBA announces the meeting of the Interagency Task Force on Veterans Small Business Development (IAFT). The IATF is
Surface Transportation Board.
Notice tentatively approving and authorizing finance transaction.
Van Pool Transportation LLC (Van Pool) and AG Van Pool Holdings, LP (AG Holdings) (collectively, Applicants), both noncarriers, filed an application to acquire control of an interstate passenger motor carrier, Butler's Bus Service, Inc. (BBS), from its shareholders, Bruce Lyskawa and Emo Chynoweth (Sellers). The Board is tentatively approving and authorizing the transaction. If no opposing comments are timely filed, this notice will be the final Board action.
Comments must be filed by December 30, 2024. If any comments are filed, Van Pool may file a reply by January 14, 2025. If no opposing comments are filed by December 30, 2024, this notice shall be effective on December 31, 2024.
Comments may be filed with the Board either via e-filing or in writing addressed to: Surface Transportation Board, 395 E Street SW, Washington, DC 20423-0001. In addition, send one copy of comments to Van Pool's representative: Kiefer A. Light, Scopelitis, Garvin, Light, Hanson & Feary, P.C., 10 W Market Street, Suite 1400, Indianapolis, IN 46204.
Sarah Fancher at (202) 740-5507. If you require an accommodation under the Americans with Disabilities Act, please call (202) 245-0245.
According to the application, Van Pool is a Delaware limited liability company. (Appl. 1.) Applicants state that Van Pool is not a federally regulated carrier but that it indirectly owns and controls all equity and voting interest in 10 interstate passenger motor carriers (Affiliate Regulated Carriers) that are among its operating subsidiaries. (
• NRT Bus, Inc., which primarily provides non-regulated student transportation services for schools in Massachusetts (Essex, Middlesex, Norfolk, Suffolk, and Worcester counties), and occasional charter services;
• Trombly Motor Coach Service, Inc., which primarily provides non-regulated student transportation services for schools in Massachusetts (Essex and Middlesex counties), and occasional charter services;
• Salter Transportation, Inc., which primarily provides non-regulated student transportation services for schools in Massachusetts (Essex County) and southern New Hampshire, and occasional charter services;
• Easton Coach Company, LLC, which provides (i) intrastate paratransit, shuttle, and line-run services under contracts with regional transportation authorities and other organizations, primarily in New Jersey and eastern Pennsylvania, and (ii) private charter motor coach and shuttle services (interstate and intrastate), primarily in eastern Pennsylvania;
• F. M. Kuzmeskus, Inc., d/b/a Travel Kuz, which provides (i) non-regulated school bus transportation services, (ii) intrastate and interstate motor coach and limousine charter services, and (iii) limited intrastate and interstate charter services using school buses, all in western Massachusetts and southern Vermont;
• Alltown Bus Service Inc., which primarily provides non-regulated student transportation services for schools in the metropolitan area of Chicago, Ill., and its northern suburbs, and occasional charter services;
• DS Bus Lines, Inc., which primarily provides (i) non-regulated student transportation services for schools in Kansas (Beloit, Kansas City, Lincoln, Olathe, and Shawnee), Missouri (Belton and Smithville), Colorado (the metropolitan area of Denver), and Oklahoma (the metropolitan area of Tulsa), (ii) intrastate employee shuttle services in Colorado and Texas, and (iii) occasional charter services;
• Royal Coach Lines, Inc., which primarily provides (i) non-regulated student transportation services for schools in the metropolitan area of Westchester County, N.Y., and southern Connecticut, and (ii) contract and charter transportation services;
• PLSIII LLC, which primarily provides (i) disabled transportation services under contracts with private nonprofit organizations for fixed route and shuttle services in New York (Buffalo, western New York, Rochester, Utica and surrounding areas, and Poughkeepsie and surrounding areas), and (ii) very limited group day trip charter transportation services; and
• Local Motion, LLC, d/b/a Local Motion of Boston, which provides non-regulated school bus, charter, and shuttle services in the metropolitan area of Boston.
According to the application, Van Pool also has operating subsidiaries that provide transportation services that do not involve regulated interstate transportation or require interstate passenger authority, primarily in the northeastern and central portions of the United States. (Appl. 2-3.) AG Holdings indirectly controls Van Pool via equity and voting interests through intermediary holding companies.
The application explains that BBS, the carrier being acquired, operates as a
Under 49 U.S.C. 14303(b), the Board must approve and authorize a transaction that it finds consistent with the public interest, taking into consideration at least (1) the effect of the proposed transaction on the adequacy of transportation to the public, (2) the total fixed charges that result from the proposed transaction, and (3) the interest of affected carrier employees. Van Pool has submitted the information required by 49 CFR 1182.2, including information to demonstrate that the proposed transaction is consistent with the public interest under 49 U.S.C. 14303(b),
Applicants assert that the proposed transaction will not have a material, detrimental impact on the adequacy of transportation services available to the public. (
Applicants state that the impact of the transaction on the regulated motor carrier industry will be minimal at most and that neither competition nor the public interest will be adversely affected. (
Applicants assert that the proposed transaction will increase fixed charges in the form of interest expenses because funds will be borrowed to assist in financing the transaction; however, Applicants state that the increase will not impact the provision of transportation services to the public. (
Based on Applicants' representations, the Board finds that the acquisition as proposed in the application is consistent with the public interest. The application will be tentatively approved and authorized. If any opposing comments are timely filed, these findings will be deemed vacated, and, unless a final decision can be made on the record as developed, a procedural schedule will be adopted to reconsider the application.
This action is categorically excluded from environmental review under 49 CFR 1105.6(c).
Board decisions and notices are available at
1. The proposed transaction is approved and authorized, subject to the filing of opposing comments.
2. If opposing comments are timely filed, the findings made in this notice will be deemed vacated.
3. This notice will be effective on December 31, 2024, unless opposing comments are filed by December 30, 2024. If any comments are filed, Van Pool may file a reply by January 14, 2025.
4. A copy of this notice will be served on: (1) the U.S. Department of Transportation, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590; (2) the U.S. Department of Justice, Antitrust Division, 10th Street & Pennsylvania Avenue NW, Washington, DC 20530; and (3) the U.S. Department of Transportation, Office of the General Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590.
By the Board, Board Members Fuchs, Hedlund, Primus, and Schultz.
Surface Transportation Board.
Notice tentatively approving and authorizing finance transaction.
On October 18, 2024, interstate passenger motor carrier Traxx
Comments must be filed by December 30, 2024. If any comments are filed, Applicants may file a reply by January 14, 2025. If no opposing comments are filed by December 30, 2024, this notice shall be effective on December 31, 2024.
Comments, referring to Docket No. MCF 21125, may be filed with the Board either via e-filing on the Board's website or in writing addressed to: Surface Transportation Board, 395 E Street SW, Washington, DC 20423-0001. In addition, send one copy of comments to Applicants' representative: Stephen P. Flott, Esq., Flott & Co. PC, 2200 Wilson Boulevard, Suite 320, Arlington, VA 22201.
Jonathon Binet at (202) 245-0368. If you require an accommodation under the Americans with Disabilities Act, please call (202) 245-0245.
According to the application, which was filed under 49 U.S.C. 14303(a)(1), TCL provides a broad range of charter, transit, and tourism-related services across western Canada. (Appl. 2.) The application further states that QCL specializes in cross-border transportation, primarily providing scheduled service on routes between Vancouver, British Columbia, the lower mainland of British Columbia, and Sea-Tac Airport in Seattle, Wash. (
The application states that, except for TCL, QCL, and VTT, there are no other affiliated carriers involved in the application. (
Under 49 U.S.C. 14303(b), the Board must approve and authorize a transaction that it finds consistent with the public interest, taking into consideration at least (1) the effect of the proposed transaction on the adequacy of transportation to the public, (2) the total fixed charges resulting from the proposed transaction, and (3) the interest of affected carrier employees. Applicants have submitted the information required by 49 CFR 1182.2, including information demonstrating that the proposed transaction is consistent with the public interest under 49 U.S.C. 14303(b),
Applicants assert that granting the application would have no adverse impact on the adequacy of transportation services available for the public. (Appl. 4.) According to Applicants, the proposed transaction involves the combination of three businesses owned and operated by Traxx. (
Applicants further state that this transaction would have no effect on total fixed charges, and that no carrier employees would be adversely affected by the contemplated transaction as there would be no change in the carriers' day-to-day operations. (
Based on Applicants' representations, the Board finds that the merger as proposed in the application is consistent with the public interest. The application will be tentatively approved and authorized. If any opposing comments are timely filed, these findings will be deemed vacated, and, unless a final decision can be made on the record as developed, a procedural schedule will be adopted to reconsider the application.
This action is categorically excluded from environmental review under 49 CFR 1105.6(c).
Board decisions and notices are available at
1. The proposed transaction is approved and authorized, subject to the filing of opposing comments.
2. If opposing comments are timely filed, the findings made in this notice will be deemed vacated.
3. This notice will be effective December 31, 2024, unless opposing comments are filed by December 30, 2024. If any comments are filed, Applicants may file a reply by January 14, 2025.
4. A copy of this notice will be served on: (1) the U.S. Department of Transportation, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590; (2) the U.S. Department of Justice, Antitrust Division, 10th Street & Pennsylvania Avenue NW, Washington, DC 20530; and (3) the U.S. Department of Transportation, Office of the General Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590.
By the Board, Board Members Fuchs, Hedlund, Primus, and Schultz.
Old Line Holding Company, Inc., d/b/a Old Line Railroad (Old Line), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire from The Maryland and Delaware Railroad Company (MDDE) and operate approximately 23.7 miles of rail line from milepost 42.0 in Selbyville, Del., to the end of the track at milepost 65.7 in Snow Hill, Md. (the Line). The verified notice states that Old Line is the parent company of MDDE, which currently operates the Line.
According to the verified notice, Old Line, MDDE, and Carload Express, Inc. (Carload), have entered into a purchase agreement dated August 1, 2024, which provides that Old Line will acquire the Line from MDDE and that Carload will concurrently acquire MDDE from Old Line.
According to the verified notice, the purchase agreement further provides that Delmarva Central Railroad Company, a Class III rail carrier and subsidiary of Carload, will acquire from MDDE a 3-mile rail line that connects with the Line at Selbyville. See
Old Line certifies that the transaction does not involve any provision or agreement that would limit future interchange with a third-party connecting carrier. Old Line further certifies that its projected annual revenue will not exceed $5 million and will not result in the creation of a Class II or Class I rail carrier.
The earliest this transaction may be consummated is November 29, 2024, the effective date of the exemption. 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 November 22, 2024 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36806, must be filed with the Surface Transportation Board either via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Old Line's representative, Thomas J. Litwiler, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 800, Chicago, IL 60606-3208.
According to Old Line, 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, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Raritan Central Railway, LLC (RCRY), a Class III railroad, has filed a verified notice of exemption pursuant to 49 CFR 1150.41, to permit it to operate, pursuant to an amendment to a lease with the Consolidated Rail Corporation (Conrail), approximately 3,000 linear feet of rail line in Middlesex County, NJ.
RCRY was previously authorized to lease from Conrail and to operate 7.08 miles of rail lines, consisting of four segments, all in Middlesex County.
RCRY certifies that the track lease does not impose or include an interchange commitment. RCRY also certifies that its projected annual revenues as a result of this transaction will not exceed $5 million annually and will not result the creation of a Class II or Class I carrier.
The transaction may be consummated on or after November 30, 2024, the effective date of the exemption (30 days after the verified notice was filed).
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 November 22, 2024 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36814, must be filed with the Surface Transportation Board either via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on RCRY's representative, Eric M. Hocky, Clark Hill PLC, Two Commerce Square, 2001 Market Street, Suite 2620, Philadelphia, PA 19103.
According to RCRY, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Federal Aviation Administration (FAA), Department of Transportation.
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 December 16, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Sandra Ray by email at:
The FAA anticipates that certificate holders will incur costs for the following groups of provisions:
• Operations familiarization for new-hire pilots (§ 121.435);
• Leadership and command and mentoring ground training for pilots currently serving as pilot in command (PIC) (§ 121.429) and recurrent PIC leadership and command and mentoring ground training (§§ 121.409(b) and 121.427);
• Leadership and command training and recurrent leadership and command training for pilots serving as second in command (SIC) in operations that require three or more pilots (§ 121.432(a))
• Upgrade training curriculum requirements (§§ 121.420 and 121.426);
• Part 121, appendix H requirements; and
• Approval of Qualification Standards Document for certificate holders using an Advanced Qualification Program (AQP) (§ 121.909).
The development and approval of new and revised curriculums will be a one-time occurrence for each certificate holder. The documentation regarding training in leadership and command and mentoring for current PICs will be a one-time occurrence. Similarly, the documentation regarding training in leadership and command for current SICs serving in operations that require three or more pilots will be a one-time occurrence. The documentation of operations familiarization for new-hire pilots will occur once for each new-hire pilot. The documentation of recurrent PIC leadership and command and mentoring training will occur every three years for each PIC. The documentation of recurrent leadership and command training for SICs serving in operations that require three or more pilots will occur every three years for each such SIC.
Federal Aviation Administration (FAA), Department of Transportation.
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 December 16, 2024.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and
Raymond Plessinger by email at:
The information collected includes: type of application, Operator's name/DBAs, telephone number, mailing address, physical address of the principal base of operations, chief pilot/designee name, airman certificate grade and number, rotorcraft make/model registration numbers to be used and load combinations requested. In addition, this information collection includes requirements to report emergency operations, plans for operation over congested areas, and submission of flight manuals for approval, and recordkeeping requirements for certificates and crewmember testing and training records.
Federal Highway Administration (FHWA), U.S. Department of Transportation (USDOT).
Notice of Intent (NOI) to prepare an environmental impact statement (EIS).
The FHWA, in coordination with the Maryland Transportation Authority (MDTA), is issuing this Notice of Intent to solicit comments and advise the public, agencies, and stakeholders that an environmental impact statement will be prepared for the Chesapeake Bay Crossing Study: Tier 2 NEPA (Tier 2 Study) to address existing and future transportation issues at the William Preston Lane, Jr. Memorial (Bay) Bridge and its approaches along U.S. 50/301, from Anne Arundel County on the Western Shore to Queen Anne's County on the Eastern Shore, in Maryland. The unique identification number for this project is EISX—XMD-1729253019. This NOI contains a summary of the information required in the Council on Environmental Quality (CEQ) regulations. This NOI should be reviewed together with the NOI Additional Project Information Document, which contains important details about the study, information on the Purpose and Need for the proposed action, alternatives considered, and expected impacts on the human, natural, and built environments. Persons and agencies who may be interested in or affected by the proposed study are encouraged to comment on the information in this NOI and the NOI Additional Project Information Document.
Comments on the NOI or the NOI Additional Information documents must be received on or before January 13, 2025.
This NOI and the NOI Additional Project Information Document are also available in the docket referenced above at
Comments on the NOI or the NOI Additional Project Information Document can be submitted through the methods outlined below:
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All comment submissions should include the agency name and docket number that appear in the heading of this notice. The comments received by
For tracking purposes, the unique identification number for this project is EISX—XMD-1729253019.
Heather Lowe, Project Manager. Maryland Transportation Authority, Division of Planning & Program Development, 2310 Broening Highway, Baltimore, MD 21224; Phone: (410) 537-5665; Email:
Interested parties can also sign up for the Tier 2 Study mailing list located at
The FHWA, as lead Federal agency, and the MDTA, as the project sponsor, will prepare an EIS for the Tier 2 Study, in compliance with the National Environmental Policy Act (NEPA) of 1969, as amended (42 United States Code [U.S.C.] 4321,
The Chesapeake Bay Crossing Study (Bay Crossing Study) is a two-tiered preliminary engineering and environmental study to address existing and future transportation issues at the Bay Bridge and its approaches along U.S. 50/301. The Bay Bridge is a two-span structure that crosses the Chesapeake Bay from Anne Arundel County on the Western Shore to Queen Anne's County on the Eastern Shore.
The MDTA and FHWA initiated Tier 1 of the Bay Crossing Study (Tier 1 Study) in 2016. The Tier 1 Study EIS encompassed a broad geographic area that spanned nearly 100 miles of the Chesapeake Bay between Harford and Cecil counties to the north, and St. Mary's and Somerset counties to the south. The Tier 1 Study EIS defined existing and future transportation conditions and needs at the existing Bay Bridge, evaluated 14 possible corridor alternative locations, documented the corridor alternative screening process, and concluded with the identification of a Selected Corridor Alternative. The Tier 1 Study was completed in April 2022 when FHWA issued a Final EIS/Record of Decision (FEIS/ROD) identifying the corridor including the existing Bay Bridge and its approaches (Corridor 7) as the Selected Corridor Alternative for further evaluation in a Tier 2 Study. Activities for the Tier 2 Study were launched in June 2022.
The Tier 2 Study, a project-level (site-specific) analysis, will describe potential environmental effects and evaluate alternatives of the proposed action. To ensure that all potential alternatives, important issues, or significant environmental effects and analyses relevant to the proposed action are considered in the EIS, comments and suggestions are invited from all affected or interested parties. The FHWA requests comments on the purpose and need, reasonable range of alternatives for evaluation in the EIS, existing environmental conditions and potential impacts, and identification of any relevant information, studies, or analyses concerning impacts affecting the quality of the human or natural environment. The purpose of this request is to bring relevant comments and information to FHWA's and MDTA's attention as early in the process as possible to enable the agencies involved to make maximum use of this information in the decision-making process. Comments may be submitted according to the instructions in the
The Tier 1 Study purpose was to consider corridors for providing additional capacity and access across the Chesapeake Bay in order to improve mobility, travel reliability, and safety at the existing Bay Bridge. The evaluation of potential corridors included assessments of existing and potentially expanded transportation infrastructure needed to support additional capacity, improve travel times, and accommodate maintenance activities, while considering financial viability and environmental responsibility. The Selected Corridor Alternative was chosen because it would provide the greatest congestion relief at the existing bridge crossing for existing and future traffic volumes, particularly at peak hours, thus having the greatest ability to meet the Purpose and Need of the Tier 1 Study EIS.
The transportation issues identified during the Tier 1 Study have been further developed and refined to better describe the specific needs for the Tier 2 Study. The purpose of the Tier 2 Study is to address existing and future transportation capacity needs and access across the Chesapeake Bay and at the Chesapeake Bay Bridge approaches along the U.S. 50/301 corridor. The Tier 2 Study is evaluating measures to reduce congestion; improve travel times and reliability, mobility, and roadway deficiencies; and accommodate maintenance activities and navigation while minimizing impacts to local communities and the environment. The Tier 2 Study is also considering objectives for environmental responsibility, as well as cost and financial responsibility.
The Purpose and Need for the Tier 2 Study EIS was developed in close coordination with Cooperating and Participating agencies (see section 7.4 below or appendix B (Coordination Plan) for a list of Cooperating and Participating agencies). The MDTA presented the draft preliminary purpose and need to these agencies and the public in 2023 for comment. Based on the comments received, the MDTA completed a Preliminary Purpose and Need Statement and Report and received concurrence from the Cooperating agencies in 2024. The complete Tier 2 Study Preliminary Purpose and Need Statement and Report may be reviewed in Appendix A to the NOI Additional Project Information Document, which is available in the docket established for this study and on the study website. Comments on the Preliminary Purpose and Need for the study are welcomed during the NOI comment period.
The MDTA and FHWA propose to evaluate additional transportation capacity across the Chesapeake Bay along the U.S. 50/301 corridor (Corridor 7 from the Tier 1 Study EIS). The study limits for the Tier 2 Study EIS extend from the MD 2/MD 450 interchange on the Western Shore to the U.S. 50/301 split on the Eastern Shore. As part of the proposed action, the MDTA proposes removing the existing two Bay Bridge spans and replacing them with a new two-span bridge over the Chesapeake Bay.
The MDTA has identified seven alternatives for the proposed action, including the no-build alternative and six build alternatives. These alternatives
All proposed build alternatives also include potential bus service improvements, Transportation System Management (TSM)/Transportation Demand Management (TDM) improvements, and consideration for the safe inclusion of a pedestrian/bicycle shared use path on the new bridge. Additional information on the proposed ARDS, as well as maps and figures illustrating the study location are provided in the NOI Additional Project Information Document.
Based on the public and agency comments received in response to this NOI and the public scoping meetings, MDTA and FHWA will determine the reasonable range of alternatives. These will be identified and evaluated as the ARDS in the Tier 2 DEIS.
The MDTA and FHWA considered a number of additional options regarding the structure type, number of lanes, bridge location, travel mode (
The Tier 2 Study EIS will evaluate potential effects to the human environment resulting from the reasonable range of alternatives. Based on information from the Tier 1 Study FEIS/ROD and early review of existing environmental conditions within and in proximity to U.S. 50/301 within the EIS study limits, the proposed action could result in direct, indirect, and/or cumulative effects to the following resources and environmental conditions:
Direct, indirect, and cumulative effects to these resources will be assessed in the Tier 2 Study EIS. Based on data collection, evaluation, and coordination with regulatory agencies and the public to date, it is anticipated that potential effects to natural resources, socioeconomic resources and land use, minority and low-income populations, cultural and historic resources, and section 4(f) and section 6(f) properties will be the focus of the Tier 2 Study EIS impact analysis.
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Additional information on the expected impacts, including quantification of direct environmental
Anticipated permits and approvals (see NOI Additional Project Information Document (Table 7-1) for a detailed breakdown of anticipated permits and approvals) that could be required prior to the commencement of construction include:
• US Army Corps of Engineers (USACE) Civil Works approvals under the section 408/River and Harbors Act—section 14, and Clean Water Act section 404/River and Harbors Act—section 10, for review of impacts to Civil Works projects and the regulation of proposed discharges into Waters of the United States;
• United States Coast Guard (USCG) approval under the General Bridge Act/River and Harbors Act—section 9, for compliance with navigation requirements for bridges;
• Federal Aviation Administration (FAA) approval for Obstruction Evaluation/Airport Airspace Analysis, for construction activities near airports;
• Federal Emergency Management Agency (FEMA) approval under the National Flood Insurance Program;
• FHWA approval under section 4(f) of the U.S. Department of Transportation Act of 1966;
• National Park Service (NPS) approval under the Land and Water Conservation Fund Act, section 6(f), for approval for the conversion of land or facilities acquired under the Land and Water Conservation Fund;
• USFWS approvals under the Bald and Golden Eagle Protection Act, and Migratory Bird Treaty Act;
• USFWS and National Oceanic and Atmospheric Administration (NOAA) National Marine Fisheries Service (NMFS) approval under the Endangered Species Act and the Marine Mammal Act for federally protected species, as well as Fish and Wildlife Coordination Act, for the protection of species and coastal resources;
• NOAA NMFS approval under the Magnuson-Stevens Fishery Conservation and Management Act for Essential Fish Habitat;
• Natural Resources Conservation Service (NRCS) approval under the Farmland Protection Policy Act for the conversion of farmland;
• Maryland Department of the Environment (MDE) approvals under the Clean Water Act, section 401, Nontidal Wetlands Protection Act & Program, Sediment & Erosion Control Program, Stormwater Management regulations, Waterways Construction Statute, and MDE/Maryland Board of Public Works (BPW) approval under the Tidal Wetlands Act & Program, for consistency with water quality requirements and minimization of erosion, flooding, and impacts to wetlands;
• Maryland Department of Natural Resources (MDNR) approvals under the Coastal Zone Consistency & Coastal Zone Management Program, Forest Conservation Act, Nongame and Endangered Species Conservation Act, Reforestation Law, Roadside Tree Law, and MDNR Critical Area Commission approval under the Chesapeake Bay Critical Area Law, for the protection of roadside trees, forests, State threatened and endangered species, wetlands, and coastal areas;
• Maryland Department of Planning (MDP) coordination for the Maryland Smart Growth Act, for the preservation of resources and prevention of sprawling development into rural areas;
• State Historic Preservation Officer/Maryland Historical Trust (MHT) consultation under section 106 of the National Historic Preservation Act, including consultation with the Advisory Council on Historic Preservation (ACHP) as appropriate, for the protection of historic properties and resolution of any adverse effects; and
• SHA coordination for evaluation of alternatives that could affect SHA roadways and ROW.
Cooperating agencies include: USACE, USCG, EPA, NMFS, USFWS, NPS, SHA, MDE, and MDNR. Participating agencies include: the Federal Transit Administration (FTA), Advisory Council on Historic Preservation (ACHP), U.S. Navy—Naval Facilities Engineering Systems Command (NAVFAC), FEMA, FAA, Maryland Transit Administration (MTA), Maryland Port Administration (MPA), MDP, Maryland Department of Emergency Management (MDEM), BPW—Wetlands Division (BPW), MHT, Maryland Aviation Administration (MAA), Delaware Department of Transportation (DelDOT), Queen Anne's County, Anne Arundel County, and Baltimore Metropolitan Council (BMC).
The MDTA does not anticipate submitting applications for permits and approvals that require design-level detail as part of NEPA or immediately following completion of the NEPA environmental review process. Per 23 U.S.C. 139(d)(10), the aforementioned permits and authorizations should be completed by no later than 90 days after the issuance of the Record of Decision. However, for this project the MDTA has requested in accordance with 23 U.S.C. 139(d)(10)(C)(ii) that those permits and authorizations follow a different timeline because the construction date is not expected until 2032. The development and review of applications for permits and other approvals will be completed as more detailed design and construction engineering progresses beyond the Tier 2 Study EIS. The NEPA study will be coordinated with the federal and state regulatory agencies based on their role as Cooperating and Participating Agencies.
Anticipated permits and approvals that could be required prior to the commencement of construction are also provided in the NOI Additional Project Information Document, which is available for review in the docket established for this study and on the Chesapeake Bay Crossing study website as noted in the
Public and agency outreach will include formal Public Scoping Meetings in December 2024. A virtual meeting will be held on December 4, 2024, followed by two in person meetings on December 9 and 11, 2024. The December 2024 Scoping Meetings will present information from the NOI Additional Project Information Document, including existing environmental conditions, the proposed ARDS for the proposed action, and their potential environmental impacts. Public Hearings on the Tier 2 Study DEIS are anticipated in late 2025.
Pre-NOI public engagement activities for the Tier 2 Study were initiated shortly after FHWA issued the Tier 1 Study FEIS/ROD in spring 2022. To date, the MDTA has held two sets of Public Open Houses (one virtual Open House and two in-person Open Houses in September 2022 and one virtual Open House and two in-person Open Houses in September 2023), a Transit and Bicycle/Pedestrian Listening Meeting, and numerous community engagement events. The September 2022 meetings summarized the results of the Tier 1 Study EIS, described the objectives of the Tier 2 Study and presented next steps in the Tier 2 Study. The September 2023 Open Houses presented the study's proposed Purpose and Need and the alternatives development
Nineteen Interagency Coordination Meetings (ICMs) to facilitate Cooperating and Participating agency coordination have been held since June 2022. The MDTA and FHWA present information at ICMs about a variety of Tier 2 Study topics and seek agency feedback. All Cooperating and Participating agencies are encouraged to provide comments at ICMs. The ICMs will continue to be held throughout the NEPA environmental review process and development of the EIS. Additional information on agency coordination to date are provided in the NOI Additional Project Information Document available for review in the docket established for this study and on the Chesapeake Bay Crossing study website as noted in the
Public notice has been given of the date, time, and location of the Public Scoping Meetings. To assist in determining the scope of issues to be addressed and identifying the potential for important issues related to information in the NOI Additional Project Information Document, the public will have the opportunity to submit written comments at the Public Scoping Meetings and during the scoping comment period beginning on the date of this NOI publication. Public input received during the scoping process will be considered in the development of the Tier 2 Study EIS. Once complete, the Tier 2 Study DEIS will be available for public and agency review and comment prior to the DEIS Public Hearing and for public review at the Tier 2 Study DEIS Public Hearing. All substantive public comments on the Tier 2 Study DEIS will be addressed in the Tier 2 Study FEIS.
The FHWA intends to issue a single document that consists of the Tier 2 Study FEIS and ROD pursuant to 49 U.S.C. 304a(b) [and 23 U.S.C. 139(n)(2)] unless FHWA determines that statutory criteria or practicability considerations preclude issuance of such a combined document.
The Tier 2 Study EIS schedule will be established as part of the requirements of the NEPA environmental review process under 23 U.S.C. 139 and will comply with 40 CFR 1501.10(b)(2), which requires that environmental reviews for major infrastructure projects occur within two years, and all necessary authorizations be issued efficiently and in a timely manner, in cooperation with FHWA.
Following the issuance of this NOI, FHWA and MDTA will coordinate with the Participating and Cooperating Agencies to develop study documentation and the Tier 2 Study DEIS.
The anticipated study schedule is outlined below:
With this Notice, FHWA and MDTA request and encourage State, Tribal, and local government agencies, and the public, to review the NOI and NOI Additional Project Information Document and submit comments on any aspect of the study. To ensure that all potential alternatives, important issues, or environmental impacts and analyses relevant to the proposed action are considered in the Tier 2 Study DEIS, comments and suggestions are invited from all interested parties. Specifically, agencies and the public are asked to comment on the purpose and need, proposed ARDS, the existing environmental conditions and potential impacts, and the identification of any relevant information, studies, or analyses concerning impacts affecting the quality of the human environment for consideration by the Lead and Cooperating Agencies in developing the Tier 2 Study DEIS. The purpose of this request is to bring relevant comments and information to FHWA's and MDTA's attention as early in the process as possible to enable the agencies to make maximum use of this information in decision making.
Comments must be received by January 13, 2025. Comments or questions concerning this proposed action, including comments relative to proposed ARDS, information and analyses, should be directed to FHWA and MDTA at the addresses provided in the
Federal Highway Administration (FHWA), Department of Transportation (USDOT).
Notice of withdrawal.
The FHWA and the Nevada Department of Transportation (NDOT) are issuing this notice to advise the public that they are withdrawing the Notice of Intent (NOI) to prepare an Environmental Impact Statement (EIS) published in the
The FHWA, in coordination with NDOT, published an NOI on March 22, 2024, at 89 FR 20530, to prepare an EIS for transportation improvements to a
Any future federally assisted action within this corridor would comply with the environmental review requirements of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition.
Toyo Tire Holdings of Americas, Inc., (Toyo) has determined that certain Open Country R/T light truck tires, do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 119,
Jayton Lindley, General Engineer, NHTSA, Office of Vehicle Safety Compliance, (325) 655-0547.
Toyo has determined that certain Toyo Open Country R/T light truck tires, do not fully comply with paragraph S6.5(j) of FMVSS No. 119,
Notice of receipt of Toyo's petition was published with a 30-day public comment period, on May 19, 2022, in the
Approximately 518 Toyo Open Country R/T light truck tires, size 35X12.50R20LT 125Q, manufactured between January 29, 2021, and March 8, 2021, are potentially involved.
Toyo explains that the noncompliance was due to a mold error in which the sidewall with the partial TIN incorrectly states the load range as required by paragraph S6.5(j) of FMVSS No. 119. Specifically, the tires were marked: “LOAD RANGE E MAX.LOAD 1450 kg (3195 LBS) AT 450 kPa (65 PSI) COLD” when they should have been marked: “LOAD RANGE F MAX.LOAD 1650 kg (3640 LBS) AT 550 kPa (80 PSI) COLD.”
Paragraph S6.5(j) of FMVSS No. 119 includes the requirements relevant to this petition. The subject tires are required to be marked on each sidewall with the letter designating the tire load range.
The following views and arguments presented in this section, “V. Summary of Toyo's Petition,” are the views and arguments provided by Toyo. They do not reflect the views of the Agency. Toyo describes the subject noncompliance and contends that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of its petition, Toyo submitted the following reasoning:
Toyo explains that the noncompliance occurred as production transitioned from producing the load range `E' tire to production of the load range `F' tire.
Toyo states that “the affected tire mold was immediately corrected after this issue was discovered and all future production will have the correct load range letter shown on the non-serial sidewall.”
Toyo explains that “the 35X12.50R20LT tire size, Load Range E tires have a maximum load carrying capacity of 1,450 kg (3,195 lbs.) at 450 kPa (65 PSI); Load Range F tires have a maximum load carrying capacity of 1,650 kg (3,640 lbs.) at 550 kPa (80 PSI). Therefore, Toyo believes that in the event that “a consumer were to rely on the incorrect load range designation on the non-serial sidewall, there would be no associated risk of overloading.”
Toyo says that NHTSA has granted prior inconsequentiality petitions for noncompliances that are similar to the one described in the subject petition and cited sections from the following notices granting those petitions:
• Guizhou Tyre Corporation; Grant of Petition for Decision of Inconsequential Noncompliance. 78 FR 12828, February 25, 2013.
• Yokohama Tire Corporation, Grant of Petition for Decision of Inconsequential Noncompliance. 84 FR. 64403, November 21, 2019.
• Tireco, Inc., Ruling on Petition for Decision of Inconsequential Noncompliance. 81 FR 58550, August 25, 2016.
Toyo says that the subject tires “meet all other performance and regulatory requirements of FMVSS No. 119.” Furthermore, Toyo says that it “has not received any complaints, claims, or warranty adjustments related to this noncompliance.”
Toyo concludes that the subject noncompliance is inconsequential as it relates to motor vehicle safety as these tires have a higher load carrying capacity than the incorrect marking indicates, therefore, the marking will not cause an operator to overload the tires. Thus, Toyo believes that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
In determining inconsequentiality of a noncompliance, NHTSA focuses on the safety risk to individuals who experience the type of event against which a recall would otherwise protect.
NHTSA has evaluated the merits of the petition submitted by Toyo and is granting Toyo's request for relief from notification and remedy of the affected tires based on the following.
1. Based on a review of Toyo's submission, the agency has no basis to believe that the subject tires do not meet all performance and marking requirements of FMVSS No. 119 with the exception of the incorrect load markings.
2. NHTSA agrees that the incorrect marking will not cause the operator to overload the tires because the marked load carrying capacity is lower than the actual load carrying capacity of the tire.
In consideration of the foregoing, NHTSA finds that Toyo has met its burden of persuasion that the subject FMVSS No. 119 noncompliance in the affected tires is inconsequential to motor vehicle safety. Accordingly, Toyo's petition is hereby granted, and Toyo is consequently exempted from the obligation of providing notification of, and a free remedy for, that noncompliance under 49 U.S.C. 30118 and 30120.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, this decision only applies to the subject tires that Toyo no longer controlled at the time it determined that the noncompliance existed. However, the granting of this petition does not relieve tire distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant tires under their control after Toyo notified them that the subject noncompliance existed.
Notice is hereby given that on November 8, 2024, the Office of the Comptroller of the Currency (OCC) approved the application of Mutual Savings and Loan Association Metairie, Louisiana, to convert to the stock form of organization. Copies of the application are available on the OCC website at the FOIA Reading Room (
By the Office of the Comptroller of the Currency.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of this person are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
This action was issued on November 12, 2024. See
OFAC: Lisa M. Palluconi, Acting 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 Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On November 12, 2024, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following person are blocked under the relevant sanctions authority listed below.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the removal of a person currently on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of this person is unblocked, and U.S. persons are permitted to engage in lawful transactions with them. OFAC is also publishing updates to the identifying information of three persons currently included on the SDN List.
This action was issued on October 30, 2024. See Supplementary Information for relevant dates.
OFAC: Associate Director for Global Targeting, 202-622-2420; or
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website:
On October 30, 2024, OFAC removed from the SDN List the person listed below, whose property and interests in property were blocked pursuant to E.O. 14024. This person is no longer subject to the blocking provisions of E.O. 14024.
1. LENG, Holger, Tallinn, Estonia; Switzerland; DOB 12 Jun 1969; nationality Estonia; alt. nationality Switzerland; Gender Male; Secondary sanctions risk: See Section 11 of Executive Order 14024. (individual) [RUSSIA-EO14024] (Linked To: MILUR SA).
Designated pursuant to section 1(a)(iii)(C) of E.O. 14024 for being or having been a leader, official, senior executive officer, or member of the board of directors of Milur SA, an entity whose property and interests in property are blocked pursuant to E.O. 14024.
On October 30, 2024, OFAC updated the entry on the SDN List for the following persons, whose property and interests in property subject to U.S. jurisdiction continue to be blocked under the relevant sanctions authority listed below.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these person are blocked, and U.S. persons are
This action was issued on August 23, 2024. See
OFAC: Associate Director for Global Targeting, 202-622-2420; Assistant Director for Licensing, 202-622-2480; or Assistant Director for Sanctions Compliance, 202-622-2490 or
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website:
On August 23, 2024, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authorities listed below.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the removal of an entity currently on OFAC's Sectoral Sanctions Identifications List (SSI List) based on OFAC's determination that one or more applicable legal criteria were satisfied.
This action was issued on October 30, 2024. See
OFAC: Associate Director for Global Targeting, 202-622-2420 or
The SSI List and additional information concerning OFAC sanctions programs are available on OFAC's website:
On October 30, 2024, OFAC removed from the SSI List the entity listed below, who was subject to the prohibitions of Directive 1 imposed pursuant to E.O. 13662.
1. PROMINVESTBANK (a.k.a. COMMERCIAL INDUSTRIAL AND INVESTMENT BANK PUBLIC JOINT STOCK COMPANY; a.k.a. JOINT STOCK COMMERCIAL INDUSTRIAL AND INVESTMENT BANK PUBLIC JOINT STOCK COMPANY; a.k.a. PSC PROMINVESTBANK; a.k.a. PUBLIC STOCK COMPANY JOINT STOCK COMMERCIAL INDUSTRIAL AND INVESTMENT BANK), 12, Shevchenko lane, Kyiv 01001, Ukraine; SWIFT/BIC UPIBUAUX; website pib.ua; Executive Order 13662 Directive Determination—Subject to Directive 1; Secondary sanctions risk: Ukraine-/Russia-Related Sanctions Regulations, 31 CFR 589.201 and/or 589.209; Organization Established Date 26 Aug 1992; Target Type Financial Institution; Registration Number 00039002 (Ukraine); All offices worldwide; for more information on directives, please visit the following link:
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, 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 continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning information collection requirements related to the orphan drug credit.
Written comments should be received on or before January 14, 2025 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 the form should be directed to Kerry Dennis at (202) 317-5751, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all 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 if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden, and it includes the actual data collection instrument.
Comments and recommendations for the proposed information collection should be sent by December 16, 2024.
To submit comments and recommendations for the proposed information collection, please type the following link into your browser:
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden, and it includes the actual data collection instrument.
Comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice by clicking on the following link
VA PRA information: Maribel Aponte, 202-461-8900,
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Office of Investment Security, Department of the Treasury.
Final rule.
This final rule sets forth the regulations that implement Executive Order 14105 of August 9, 2023, “Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern,” which declares a national emergency to address the threat to the United States posed by countries of concern that seek to develop and exploit sensitive technologies or products critical for military, intelligence, surveillance, or cyber-enabled capabilities. The final rule requires United States persons to provide notification to the U.S. Department of the Treasury regarding certain transactions involving persons of a country of concern that are engaged in activities involving certain national security technologies and products that may contribute to the threat to the national security of the United States; and prohibits United States persons from engaging in certain other transactions involving persons of a country of concern that are engaged in activities involving certain other national security technologies and products that pose a particularly acute national security threat to the United States.
This final rule is effective on January 2, 2025.
Meena R. Sharma, Director, Office of Investment Security Policy and International Relations, at U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220; telephone: (202) 622-3425; email:
On August 9, 2023, the President issued Executive Order 14105 (88 FR 54867), “Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern” (the Outbound Order), pursuant to his authority under the Constitution and the laws of the United States, including the International Emergency Economic Powers Act (IEEPA), the National Emergencies Act (NEA), and section 301 of title 3, United States Code (U.S.C.). In the Outbound Order, the President found that the advancement by countries of concern in sensitive technologies and products critical for the military, intelligence, surveillance, or cyber-enabled capabilities of such countries constitutes a threat to the national security of the United States, which has its source in whole or substantial part outside the United States, and that certain U.S. investments risk exacerbating this threat. In response, the President declared a national emergency to deal with this threat. On August 6, 2024, the President continued the national emergency (89 FR 65163) declared in the Outbound Order.
The Outbound Order identifies three sectors of national security technologies and products to be covered by the program: semiconductors and microelectronics, quantum information technologies, and artificial intelligence. As described in the Outbound Order, countries of concern are exploiting or have the ability to exploit certain U.S. outbound investments, including certain intangible benefits that often accompany U.S. investments and that help companies succeed. In an Annex to the Outbound Order, the President identified one country, the People's Republic of China (PRC), along with the Special Administrative Region of Hong Kong (Hong Kong) and the Special Administrative Region of Macau (Macau), as a country of concern. The President may modify the Annex to the Outbound Order and update the list of countries of concern.
Advanced technologies and products that are increasingly developed and financed by the private sector form the basis of next-generation military, intelligence, surveillance, or cyber-enabled capabilities. As stated in the Outbound Order, advancements in sensitive technologies and products in the areas of semiconductors and microelectronics, quantum information technologies, and artificial intelligence will accelerate the development of advanced computational capabilities that will enable new applications that pose significant national security risks, such as the development of more sophisticated weapons systems, breaking of cryptographic codes, and other applications that could provide a country of concern with military advantages. The potential military, intelligence, surveillance, or cyber-enabled applications of these technologies and products pose risks to U.S. national security, particularly when developed in or by a country of concern in which the government seeks to (1) direct entities to obtain technologies to achieve national security objectives and (2) compel public or private entities to share or transfer these technologies to the government's military, intelligence, surveillance, or security apparatuses.
U.S. investments are often more valuable than their capital alone, because they can also include the transfer of intangible benefits. Intangible benefits that often accompany U.S. investments and help companies succeed include: enhanced standing and prominence, managerial assistance, access to investment and talent networks, market access, and enhanced access to additional financing. Certain investments by United States persons into a country of concern can be exploited to accelerate the development of sensitive technologies or products—including military, intelligence, surveillance, or cyber-enabled capabilities—in ways that negatively impact the national security of the United States. Such investments, therefore, risk exacerbating this threat to U.S. national security.
The Outbound Order outlines two primary components that serve distinct but related objectives with respect to the relevant technologies and products. The first component requires notification to the Secretary of the Treasury (the Secretary) regarding certain types of investments by a United States person in a
The Outbound Order directs the Secretary, in consultation with the Secretary of Commerce and, as appropriate, the heads of other relevant agencies, to issue, subject to public notice and comment, regulations that, among other things, require
The Outbound Order instructs the Secretary to identify in such regulations categories of
Concurrent with the issuance of the Outbound Order, on August 9, 2023, the Treasury Department issued an Advance Notice of Proposed Rulemaking, 88 FR 54961 (published August 14, 2023) (ANPRM), to provide transparency and clarity about the intended scope of the program and solicit early stakeholder participation in the rulemaking process. The ANPRM outlined key concepts under consideration and sought public comment on a range of topics related to the implementation of the Outbound Order.
The Treasury Department received 60 comment letters in response to the ANRPM, many from business associations that represented a wide variety of stakeholders across industries as well as from individuals and companies in the financial services, legal, and technology sectors. (The comments to the ANPRM are available on the public rulemaking docket at
On June 21, 2024, the Treasury Department issued a Notice of Proposed Rulemaking, 89 FR 55846 (published July 5, 2024) (Proposed Rule), setting forth the full proposed regulations for implementing the Outbound Order. The Proposed Rule built on the ANPRM and reflected the Treasury Department's consideration of comments received in response to the ANPRM. The Proposed Rule included the full draft regulations and explanatory discussion regarding the intent of the proposal. It also solicited additional comments from the public.
The Proposed Rule would have placed obligations on
The obligations of a
The Proposed Rule would have applied to certain transactions by
The Proposed Rule would have applied to certain transactions by a
The Proposed Rule would have excepted certain types of transactions from coverage, provided that such transactions did not afford a
Under the Proposed Rule, a
A
The Proposed Rule identified the subsets of national security technologies and products identified in the Outbound Order that would have been subject to the Proposed Rule.
•
•
•
The Proposed Rule outlined the penalty and disclosure framework for violations. A violation would have been subject to civil and criminal penalties as set forth in IEEPA. In the event of a violation, the Treasury Department would have been authorized to impose civil penalties and could also have referred criminal violations to the Attorney General. The Secretary also could have taken any action authorized under IEEPA to nullify, void, or otherwise require divestment of any
The public was given an opportunity to comment on the Proposed Rule, and comments were due by August 4, 2024. The public comments received are available on the rulemaking docket at
The preamble to the Proposed Rule noted that its focus was on the types of U.S. investments that presented a likelihood of conveying both capital and intangible benefits that could be exploited by countries of concern to accelerate the development of sensitive technologies or products in ways that negatively impact the national security of the United States. With an interest in minimizing unintended consequences and addressing the national security risks posed by countries of concern developing technologies that are critical to the next generation of military, intelligence, surveillance, or cyber-enabled capabilities, the Proposed Rule included detailed definitions and descriptions of terms and elements to appropriately scope coverage and facilitate compliance by United States persons. At the same time, the Proposed Rule sought to avoid loopholes that could have undermined the national security objectives of the Outbound Order.
Several commenters noted their support for the overall goals of the Outbound Order and Proposed Rule. One commenter commended the Treasury Department for taking action to stop U.S. investment in entities backed by the Chinese Communist Party that threaten U.S. national security. Another commenter endorsed U.S. Government efforts to ensure entities that pose national security threats are denied access to all U.S. investors and U.S. capital markets. Several commenters expressed support for the Treasury Department's goal of restricting investment that would accelerate the development of military, intelligence, surveillance, and cyber-enabled capabilities in countries of concern. Another commenter emphasized the importance and difficulty of countering
Several commenters noted the importance of balancing the protection of national security with the maintenance of economic competitiveness and an open investment policy. One commenter stated that a well-designed rule would have actionable requirements that achieve the Treasury Department's goals while mitigating unintended consequences.
Several commenters highlighted the importance of clarity in the Proposed Rule, especially in the definitions, or requested further clarification. Other commenters requested that the rule be no more burdensome than necessary to achieve its aims. One commenter encouraged the Treasury Department to be mindful of the implications of the U.S. Supreme Court decision in
One commenter highlighted a think tank report about outbound investment that encouraged authorities to target the highest risk transactions and recommended establishing a rule that is proportionate, easy to understand, nonduplicative of existing tools, and that enables dialogue with allies about adopting similar regimes.
Other commenters expressed the view that the Proposed Rule was too broad or not designed to address the threat identified in the Outbound Order. Some commenters requested the notification requirement be removed from the rule, with one commenter expressing the view that the notification requirement would not address the threat identified in the Outbound Order. One commenter asserted that the investment restriction in the Proposed Rule was based on misconceptions and assumptions about the PRC government and PRC businesses that are not supported by evidence. Another commenter asserted that the Proposed Rule represents a departure from the United States' traditional support for free and open capital flows. Another commenter characterized the Proposed Rule as unreasonable and contrary to principles of free and fair trade. The commenter alleged that the Proposed Rule would obstruct opportunities for PRC companies, limit the innovation capacity of the United States, and destroy the global industrial supply chain. Another commenter expressed concern that the Proposed Rule is overly broad and that it underestimates the potential negative impacts on investment managers.
In response to these comments, the Treasury Department notes that the United States has long maintained an open investment policy and supported cross-border investment where consistent with U.S. national security interests. In developing the Final Rule, the Treasury Department has sought to maintain the goals of both open investment and protection of national security by focusing on U.S. investments that present a likelihood of conveying both capital and intangible benefits that can be exploited to accelerate the development of sensitive technologies or products critical for military, intelligence, surveillance, or cyber-enabled capabilities of countries of concern in ways that threaten the national security of the United States.
The Treasury Department also recognizes the potential for unintended consequences that may arise under the Final Rule and has sought to further minimize the impact of those consequences, including through changes to the definitions of
Similar to the Proposed Rule, the Final Rule seeks to complement existing authorities and tools of the U.S. Government, such as export controls and inbound investment reviews. The Final Rule addresses the complex and evolving national security threat identified in the Outbound Order.
The Treasury Department also notes that the Final Rule is based on the President's finding in the Outbound Order that
As described above, the Outbound Order was issued by the President pursuant to his authority under the Constitution and the laws of the United States, including IEEPA, the NEA, and section 301 of title 3, U.S.C. The Outbound Order directs the Secretary, in consultation with the Secretary of Commerce and, as appropriate, the heads of other relevant agencies, to issue, subject to public notice and comment, regulations that, among other things, require
One commenter raised questions about whether the Treasury Department had appropriate authority to issue and administer the rule. The commenter noted that Congress did not explicitly authorize the Assistant Secretary of the Treasury for Investment Security to oversee an outbound investment program in the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA; Subtitle A of Title XVII of Pub. L. 115-232, 132 Stat. 2173), the legislation that established the position of Assistant Secretary of the Treasury for Investment Security. The commenter noted that the establishment of the Outbound Investment Security Program would mean that the Assistant Secretary's duties would no longer be principally related to the Committee on Foreign Investment in the United States (CFIUS) as FIRRMA requires. The commenter also asserted that personnel hired under FIRRMA's hiring authority likewise must have CFIUS-related work as their primary responsibility, which in the commenter's view, does not encompass the rulemaking to implement the Outbound Order. The commenter also expressed the view that IEEPA could not be a source of authority for the Proposed Rule. The commenter expressed that in practice, the Proposed Rule sought to regulate access to expertise and professional networks, and that this was “sharing of information” that could not be prohibited under IEEPA unless such information was subject to espionage or export control laws.
The Treasury Department appreciates these comments and the opportunity to respond to the legal points they raise. IEEPA (50 U.S.C. 1701
As directed by the President, the Final Rule addresses the declared national emergency and threat to national security by prohibiting certain transactions and requiring notification of certain other transactions by
The commenter states that a provision of IEEPA exempting from regulation “the importation from any country, or the exportation to any country . . . of any information or informational materials” (50 U.S.C. 1702(b)(3)) forecloses the Treasury Department from issuing the rule under IEEPA. Consistent with the statute, neither the Proposed Rule nor the Final Rule regulates the export of “information or informational materials.” Section 850.503 of the Final Rule explicitly provides that conduct referred to in 50 U.S.C. 1702(b) shall not be regulated or prohibited, directly or indirectly, by this part. Instead, the Proposed Rule would have regulated, and the Final Rule will regulate,
The commenter observes that the duties of the Assistant Secretary of the Treasury for Investment Security, as defined in 50 U.S.C. 4565(k)(4)(A)(ii)(II), must be “principally related to [CFIUS].” The Final Rule and the establishment of the Outbound Investment Security Program within the Treasury Department's Office of Investment Security are consistent with this requirement. Taking into account factors such as budget, personnel, and allocation of time, the Assistant Secretary for Investment Security's duties, and those of relevant Treasury Department staff, will remain principally related to CFIUS, even with the Outbound Investment Security Program coming under the Assistant Secretary's purview.
The discussion below summarizes comments submitted to the Proposed Rule and the Treasury Department's responses to those comments. For provisions that are not discussed below, the Treasury Department did not receive any substantive comments on those provisions and is implementing them in the Final Rule without substantive change from the Proposed Rule.
Section 850.101 of the Proposed Rule outlined the scope of the Proposed Rule. Section 850.101(a) explained that the Proposed Rule implemented the Outbound Order, and § 850.101(b), (c), and (d) discussed at a high level certain key terms and requirements in the
The Treasury Department did not receive any comments on § 850.101 of the Proposed Rule. The Final Rule adopts § 850.101 in a form nearly identical to that in the Proposed Rule but makes some non-substantive edits to the structure of paragraphs (c) and (d) to clarify the requirements applicable to the Secretary's determination with respect to
Under § 850.104 of the Proposed Rule, certain provisions, including in the definition of
The Treasury Department received comments on several aspects of § 850.104 of the Proposed Rule. In response, the Treasury Department has made changes to clarify this provision in the Final Rule and discusses other issues below.
Commenters sought clarification or guidance on how the Treasury Department will evaluate the sufficiency of a
As in the Proposed Rule, § 850.104(c) of the Final Rule sets forth an illustrative list of factors that the Treasury Department will consider in assessing whether a
The Treasury Department declines to include a safe harbor provision or to prescribe specific due diligence obligations in the Final Rule. Rather, the Final Rule is designed to address the fact-specific and individualized nature of each transaction by offering an illustrative list of considerations at § 850.104(c), in combination with § 850.104(d), as described above.
One commenter stated that the Treasury Department should not consider an entity's refusal to make representations or warranties to be a warning sign, by itself, while another commenter stated that they did not believe they would be able to credibly assess information received from an investment target for warning signs. Given the variety of forms a warning sign could take, the Final Rule does not prescribe what a warning sign or red flag would be, but § 850.104(d) addresses commenter concerns by stating that the totality of the relevant facts and circumstances shall be considered in determining if the
Commenters also requested clarification that a
The Treasury Department acknowledges that in certain instances, information required to assess whether a transaction is a
Multiple commenters sought clarification regarding how the Treasury Department will evaluate a
Other commenters sought information about the degree to which a
Under the Final Rule, a
The Final Rule adopts, with minor changes, the text of § 850.104(c)(3) and (4) from the Proposed Rule regarding “available non-public information” and “available public information” as well as a
At the same time, § 850.104(c) of the Final Rule does not require a
The Final Rule also includes a related technical edit to § 850.104(c)(7), adding “available” before “public and commercial databases.” This edit is being made to clarify the scope of databases that may be reviewed and to be consistent with how other sources of information in § 850.104(c) are qualified with “available.” It is not intended to affect the substance of the requirement.
One commenter requested that the Treasury Department identify specific standards or considerations for what constitutes a “reasonable and diligent inquiry” for an LP in an investment fund where the LP cannot reasonably know the specific targets of the fund. Another commenter asked that the Treasury Department publish a list of
The Treasury Department notes that the foregoing discussion of the knowledge standard and a “reasonable and diligent inquiry” is generally applicable to an investment by a
One commenter requested the reference to legal counsel in § 850.104(c)(5) be deleted, arguing that it would permit an inappropriate imputation of knowledge to the
A number of commenters requested clarification regarding the definition of “relevant counterparty” in § 850.104(c), stating that if the term were to include other investors of the relevant fund or other owners of the target portfolio company, then the necessary due diligence would be unduly burdensome. As such, one commenter asked that the term be defined to mean a party to the transaction, while others requested limiting the required diligence to parties participating in the transaction.
In response, the Treasury Department has adopted the suggestion made by commenters and modified § 850.104(c) to refer to “an investment target or other relevant transaction counterparty (such as a joint venture partner)” where applicable. This change is intended to clarify that as a general matter, the Treasury Department does not expect diligence to be conducted on
Commenters expressed similar views with respect to the feasibility of conducting due diligence to determine whether the criteria for a
Given the wide variety of possible transaction structures and for the reasons stated above, the Treasury Department declines to adopt prescriptive diligence standards as they relate to particular transaction structures or the application of a particular definition in the Final Rule. Instead, the knowledge standard discussed in the Final Rule, the specific factors enumerated in § 850.104(c), and the consideration of the totality of relevant facts and circumstances described in § 850.104(d) explain the obligations and expectations regarding due diligence under the Final Rule.
The Final Rule specifies that certain provisions, including § 850.210, which defines
The definition of
If a
The Treasury Department anticipates making additional information available on its Outbound Investment Security Program website regarding topics such as the application of the knowledge standard.
As discussed in the Proposed Rule, the U.S. Government is concerned with the development of
Under the Proposed Rule,
Several commenters expressed concern about the breadth of the definition in the Proposed Rule. One commenter argued that the definition did not differentiate products that pose a national security risk from those that do not. Others requested the removal of § 850.202(b) from the definition of
The Final Rule makes clarifying edits to the definition of
One commenter requested that the Treasury Department clarify that the computing power thresholds for a
The Treasury Department notes that the computing power thresholds refer to the aggregate or combined computing power required to train a given
One commenter stated the Treasury Department would need to hire technical staff to monitor changes in the AI marketplace and suggested the Treasury Department leverage technical talent at other U.S. Government agencies if the roles cannot be maintained within the Treasury Department. In response to this comment, the Treasury Department notes that the Outbound Order directs the Treasury Department to consult with relevant U.S. Government agencies on the implications for military, intelligence, surveillance, or cyber-enabled capabilities of covered national security technologies and products and potential covered national security technologies and products. The Treasury Department has leveraged the expertise of other U.S. Government agencies through the rulemaking process and will continue to do so in the implementation and administration of the Final Rule.
The Proposed Rule defined a
In response to these comments, the Final Rule modifies the definition of
The Proposed Rule defined
The Treasury Department received several comments on the definition of
One commenter expressed support for the 50 percent threshold set forth in the definition of
Another commenter stated that the Proposed Rule's definition of
Commenters requested that the Treasury Department clarify that the
The Final Rule defines
In determining whether a
If a
Section 850.206 should be read in connection with §§ 850.302 and 850.402, which place obligations on a
The Proposed Rule identified activities that would provide the relevant nexus between the
The three primary definitions in the Proposed Rule implementing the term “covered national security technologies and products” were
The definitions of
The Treasury Department received several comments related to the definition of
In the Final Rule, the Treasury Department adopts § 850.208 without change from the Proposed Rule. C
The Outbound Order requires the Treasury Department to prohibit or require notification of certain transactions involving a
• A
• Any person that has a particular relationship with a
• A
One commenter stated that the definition of a
A number of commenters suggested that the term “engages in,” as used in § 850.209(a)(1) of the Proposed Rule to connect a
As used in § 850.209(a)(1), the function of “engages in” is simply intended to provide a link between the
One commenter asked that the rule distinguish between activities that are legitimately part of a
Regarding the distinction that one commenter raised between a
One commenter suggested that a
Commenters asked about the temporal aspects of “engages in.” One recommended that “engages in” require that engagement in a
The Treasury Department has determined not to change § 850.209(a)(1) in the Final Rule. The Treasury Department notes that in the context of § 850.209(a)(1), “engages in,” which is phrased in the present tense, refers to a
Several commenters requested that the Treasury Department consider a de minimis activity threshold in the definition of a
The Treasury Department declines to institute a de minimis exception with respect to the “engages in” language of § 850.209(a)(1). Setting a de minimis threshold based on the level of activity involving a covered technology or product would be challenging from a regulatory and administrative perspective and would likely introduce ambiguity. In response to comments regarding ambiguity in the Proposed Rule's formulation (which has been adopted without changes in the Final Rule), the Treasury Department reiterates that any amount of a
Commenters made suggestions related to the scope of § 850.209(a)(2) or requested clarification of this paragraph's application. Commenters discussed the costs related to conducting due diligence to determine whether § 850.209(a)(2) applies to a person receiving investment from a
Several commenters requested that the Treasury Department clarify whether an investment in a
The Treasury Department notes that the bright-line criteria set forth in § 850.209(a)(2) are for purposes of determining whether a
Furthermore, meaningful distinctions exist between the scope of § 850.209(a)(2) and an indirect
One commenter requested clarification as to whether the application of § 850.209(a)(2) “goes through the group or the portfolio company” as well as guidance as to the treatment of subsidiaries and affiliates of the company in which a
One commenter asked whether, if a
Two commenters requested additional guidance regarding how the financial metrics cited in the Proposed Rule,
Several commenters suggested that the Treasury Department attribute the requirement in § 850.209(a)(2) to a single entity, rather than aggregating among entities, or provide clarification for how aggregation would be applied. Additionally, commenters requested that the rule institute a de minimis threshold for a person's vested interest in a
In response to the comments, the Treasury Department has modified § 850.209(a)(2) of the Final Rule to note that for the purposes of calculating whether one or more
In response to comments on considerations for a
For example, if an investment target holds a board seat on a
The Treasury Department determines that the above change will make necessary information easier for a
The Treasury Department declines to adopt a de minimis threshold, as suggested by some commenters, for an investment target or transaction counterparty's equity or voting interest in a
One commenter requested that for the purposes of determining
The Treasury Department has made additional changes to § 850.209(a)(2) to reflect comments and enhance clarity. These include the removal of an explicit reference to “one or more contractual arrangements, including, for the avoidance of doubt, variable interest entities” from the Proposed Rule, which modified the reference to a person's having “any power to direct or cause the direction of the management or policies of” a
As modified in the Final Rule, § 850.209(a)(2) continues to focus on the significance of the financial relationship between an investment target and one or more
One commenter suggested that § 850.209(a)(2) consider only consolidated revenue and net income because, among other things, they are easier to obtain in the ordinary course of business than the other metrics. The Treasury Department declines to adopt this change because information about capital expenditure and operating expenses should generally be available. In addition, and independently, considerations related to the ease of obtaining this information are outweighed by the national security concerns that would be implicated by not covering an entity under § 850.209(a)(2) that incurs more than 50 percent of its capital expenditure or operating expenses through a
One commenter suggested that the Final Rule “harmonize” the thresholds in § 850.209(a)(2) with other parts of the rule, such as the threshold for determining control in the case of a
One commenter stated that this provision aligned with the policy goals of the Proposed Rule and suggested that because the thresholds in 850.209(a)(2) are based on the most recent available financial statement,
Commenters also raised suggestions relating to the time at which a determination of the applicability of § 850.209(a)(2) is made. One commenter noted that the financials of a given target company could change over time, which could complicate compliance for investors that wish to participate in multiple funding rounds and could “have a dramatic chilling effect.” The commenter also suggested exempting subsequent funding rounds from the notification requirements absent a material change or allowing an amendment of a prior notification. In response to this comment, the Treasury Department clarifies that because the analysis to determine the application of § 850.209(a)(2) must occur at the time of a transaction using the information set forth in § 850.209(b), in the context of a single investment, fluctuations in an investment target's finances prior or subsequent to the relevant time period are not relevant to the operation of § 850.209(a)(2). With respect to
The Treasury Department declines to create an exemption or exception for a transaction simply because it is part of a subsequent funding round, in § 850.209(a)(2) or elsewhere. Such an exception or exemption could reduce U.S. Government visibility into certain follow-on investments and open a loophole by permitting investments that would otherwise be
One commenter suggested that the measurements set forth in § 850.209(a)(2) be applied at the time of final closing in the case of a closed-end fund, but at the time of an investment by a
One commenter requested that the Treasury Department consider making
One commenter suggested striking § 850.209(a)(2) in its entirety. Among the reasons given for this suggestion is that a
Commenters noted the potential extraterritorial application of § 850.209(a)(2). One commenter stated that a third-country entity “should not be regarded as the same as a person of a country of concern.” Another commenter stated that including entities incorporated outside of a
One commenter stated that § 850.209(a)(2) may prevent a
The Final Rule also makes changes to § 850.209(b), which establishes how a person's revenue, net income, capital expenditure, and operating expenses are to be ascertained. One commenter suggested that where an annual financial statement is unavailable, a
This provision is intended to apply independently to the ascertainment of each metric or figure. For example, if overall revenue is available in an audited financial statement from the most recent year, but the specific contributions of
The Final Rule also adds § 850.209(b)(2) to address the calculation of exchange rates for the purpose of determining whether the contribution of a
Finally, the Final Rule adds a Note 1 to § 850.209 to clarify that references in that section to revenue, net income, capital expenditure, or operating expenses refer to overall revenue, net income, capital expenditure, or operating expenses, as applicable, without subtracting amounts attributable to a
A number of commenters requested the Treasury Department reconsider its decision in the Proposed Rule not to issue a list of entities that are
The definition of
First, under § 850.209(a)(1), a
Second, under § 850.209(a)(2), a person is a
Relatedly, the Treasury Department intends the threshold of more than 50 percent of any of the financial metrics to be evaluated independently, not in combination. For example, assuming no other relevant circumstances, if a
Under § 850.209(a)(2), the Treasury Department intends to capture those entities that, while not directly engaged in a
Lastly, under § 850.209(a)(3), a
The Proposed Rule defined a
Acquisition of an equity interest or
Provision of debt financing convertible to an equity interest in a
Conversion of a
Greenfield investment or certain other corporate expansions that either will establish a
Entrance into a joint venture, wherever located, with a
Investment as an LP into a non-
Importantly, for each of the above transaction types, the Proposed Rule included a specific requirement for what a
A few commenters expressed the view that the Proposed Rule expanded the scope of transactions that would have been considered
The proposed definition of
The proposed definition of
The Treasury Department received a number of comments in connection with § 850.210(a)(1) and (3) of the Proposed Rule, which covered the acquisition or conversion of a
Several commenters requested that the Treasury Department either delete or clarify the phrase “interest equivalent to an equity or
One commenter stated that the Treasury Department should revise the definition of a
The Treasury Department is modifying the definition of
Several commenters stated that the rule should not apply to convertible debt financing more broadly or, in the alternative, should include a safe harbor for any debt financing provided prior to the effective date of the rule. One commenter recommended that debt financing should be a
The Treasury Department recognizes that the activities of an investment target in which a
The Proposed Rule provided that a
The Proposed Rule explained that while the issuance of debt secured by equity in a
Several commenters provided input on § 850.210(a)(2) of the Proposed Rule. Several commenters focused on a scenario whereby a
One commenter noted that the Proposed Rule could have limited the ability of
Other commenters requested that the rule not apply to secondary debt market transactions involving debt secured by equity. A few commenters highlighted that purchasers in the debt market do not have access to diligence materials or the power to negotiate representations from the underlying issuer, while another commenter stated that secondary debt market transactions should be carved out because the borrower would not receive any proceeds from that secondary transaction.
Commenters also discussed the description in § 850.210(a)(2)(ii) of the Proposed Rule regarding a lender's ability to make management decisions. Several commenters argued that when a lender seeks to restructure a delinquent loan, for example to change the borrower's management or appoint a
As such, foreclosure on equity taken as collateral continues to be considered an acquisition of equity for purposes of § 850.210. However, in response to relevant comments, Note 2 further clarifies that foreclosure on collateral where the
Further, as highlighted by the comments, the Treasury Department does not intend to define as a
The Treasury Department agrees with commenters' request for clarification of the Proposed Rule's reference to “mak[ing] management decisions” in § 850.210(a)(2)(ii). The Final Rule revises § 850.210(a)(2) to specify that the provision of debt financing to a
Under § 850.210(a)(4) of the Proposed Rule, the definition of
One commenter requested clarification that the word “development” in § 850.210(a)(4) does not encompass a
Multiple commenters asked for clarification regarding what constitutes a change in activity under § 850.210(a)(4)(ii). One commenter stated that an activity “not previously engaged in” should refer to a person engaging in a new category of
One commenter requested that the Treasury Department justify its assessment that including investments intended to result in the establishment of a
In response to the above comments, the Treasury Department has revised § 850.210(a)(4) in the Final Rule. Rather than referring to the “intent” of the
In addition, the Treasury Department responds to the comments through modification to § 850.210(a)(4)(ii) of the Final Rule to specify that it relates to the “engagement of a person of a country of concern in a covered activity.” The Final Rule's coverage of a “brownfield” investment is intended to capture a
Continuing to capture a forward-looking element in the context of the transactions addressed in § 850.210(a)(4) is important to the national security goals of the Outbound Order. Without such a provision, a
Multiple commenters also requested clarification of the interplay between § 850.210(a)(4) and the exception for an intracompany transfer at § 850.501(c). As further discussed regarding the definition of an
Several commenters provided views on § 850.210(a)(5) of the Proposed Rule, which defined as a
Commenters requested that the Treasury Department define “joint venture” to provide greater clarity on the application of the provision, and suggested definitions for the Treasury Department's consideration and urged defining this term narrowly. One commenter requested clarity on what constitutes “intent” for the purposes of § 850.210(a)(5) and whether “intent” would be found where a
Two commenters suggested that “joint venture” should include only the acquisition of an equity interest and not other forms of commercial cooperation, whereas one commenter recommended that “joint venture” only include the establishment of a new legal entity. Two other commenters recommended that the Treasury Department list certain “routine” activities that would not be covered as joint ventures.
Several commenters recommended that the Treasury Department provide guidance clarifying that certain transactions, relationships, or activities are not considered to constitute a joint venture for purposes of this provision.
One commenter requested that the Treasury Department clarify whether certain actions related to existing joint ventures are permissible, including participation in an existing joint venture, acquisition of additional interest in an existing joint venture, and engagement in a
The Treasury Department declines to define the term “joint venture” in the Final Rule, after considering whether other regulatory regimes define the term. Instead, the Treasury Department refers to the plain English meaning of the term,
In response to the comments to § 850.210(a)(5), the Treasury Department is modifying this provision by striking “the U.S. person intends to engage in a covered activity.” Instead, in the Final Rule, § 850.210(a)(5) applies when “the subject U.S. person knows at the time of entrance into the joint venture that the joint venture will engage, or plans to engage, in a covered activity.” This modification is intended to focus on the
The Treasury Department clarifies that, as with the Proposed Rule, § 850.210(a)(5) of the Final Rule is intended to cover situations in which a
Several commenters provided views on § 850.210(a)(6) of the Proposed Rule, which related to an LP interest in certain pooled investment funds. One commenter expressed doubt with respect to the ability of an LP to determine whether a pooled investment fund is “likely” to invest in a
Commenters requested additional clarity with respect to when an LP may be deemed to
One commenter stated that the provision is overbroad and expressed concerns with what the commenter perceived as burdensome compliance requirements, particularly with respect to post-closing diligence. This commenter also stated that
Two commenters stated that LPs should be permitted to rely on the assurances of GPs and one commenter took the position that the GP should bear any and all requirements related to compliance with the rule. Another commenter requested that the Treasury Department issue guidance related to this provision.
One commenter requested clarity with respect to requirements for LPs subject to agreements made prior to the Outbound Order.
The Final Rule adopts the § 850.210(a)(6) from the Proposed Rule without any changes. The Final Rule, as with the Proposed Rule, provides that an LP investment in a non-
In response to issues commenters identified related to post-transaction monitoring and compliance in the LP context, the Treasury Department reiterates that the knowledge standard as applied to § 850.210(a)(6) of the Final Rule relates to a
With respect to whether such pooled investment fund actually undertakes a transaction that would be a
To address a potential loophole, § 850.210(a) of the Proposed Rule defined a
Several commenters provided views on § 850.210 as it related to indirect transactions. One commenter expressed concern that this provision would place a significant compliance burden on
One commenter requested that the Treasury Department clarify that an indirect
Upon review and consideration of these comments, the Treasury Department is revising Note 1 to § 850.210. The Final Rule provides that an indirect
Several commenters expressed views with respect to the scope of the definition of
Multiple commenters also requested that carried interest be clarified as beyond the scope of
The Treasury Department agrees with commenters that while the receipt of compensation by an employee of a
As to comments regarding carried interest, the Treasury Department agrees that absent other relevant facts, the payment of carried interest to a
The Final Rule defines a
Acquisition of an equity interest or
Provision of debt financing that affords the lender certain management or governance rights in a
Conversion of a
Acquisition, leasing, or other development of land, property or other assets that will result in or the U.S. person plans to result in the establishment of a
Entrance into a joint venture, wherever located, with a
Acquisition of an LP interest in a non-
Each of the above transaction types includes a specific requirement for what a
The definition of
The definition of
The definition of
The Treasury Department considered alternative approaches such as covering only the acquisition and not the conversion of contingent interests or covering only the conversion. However, each alternative is either over- or under-inclusive in situations where an investment target has pivoted away from, or into, a
The definition of
A
The Treasury Department has assessed that requiring a greenfield or brownfield investment to result in the establishment of a
The definition of
Under the Proposed Rule,
In consideration of these comments, the Final Rule modifies the definition of
The Proposed Rule included a definition of
The Proposed Rule specified that certain provisions, including the definition of
The Treasury Department received one comment on this section. The commenter suggested that the definition of
The Final Rule adopts the definition of
As discussed in the Proposed Rule, a
In the Proposed Rule, the Treasury Department determined that the listed activities may contribute to the threat to the national security of the United States identified in the Outbound Order. Each of the technical descriptions and references to end uses in the proposed definition were designed to achieve the national security policy objectives of the Outbound Order, and the Proposed Rule noted that the Treasury Department may consider further technical refinements consistent with these objectives. Each
The submission of information to the Treasury Department regarding a
Commenters provided feedback on the nature and scope of
Sections 850.217(a), (b), and (c) of the Proposed Rule defined
The Final Rule implements § 850.217(a) through (c) without change from the Proposed Rule. In considering comments on the breadth of § 850.217(a) through (c), the Treasury Department assesses that the design, fabrication, and packaging of integrated circuits, including those at “legacy” or “mature” process nodes, have the potential to contribute to and advance the capability of countries of concern in sensitive technologies and products critical for such countries' military, intelligence, surveillance, or cyber-enabled capabilities. The potential intangible benefits of U.S. investment are particularly relevant in the semiconductor industry given the complex and resource-intensive nature of semiconductor research, development, manufacturing, and scaling, as well as the importance of the semiconductor supply chain to national security applications. The Treasury Department determines that visibility into these transactions is important and thus maintains a notification requirement. The Treasury Department also notes that technical thresholds set forth in the Final Rule, developed in consultation with the Department of Commerce and other agencies, are in many cases consistent with but may not precisely match with the EAR, International Traffic in Arms Regulation (ITAR), or other export control regimes due to differences in policy objectives and legal authorities. Addressing the threat posed by the advancement by countries of concern in areas critical for military, intelligence, surveillance, or cyber-enabled capabilities may require restricting transactions in persons engaged in technologies that are upstream of, at different technical thresholds than, or otherwise distinct from those controlled for export. Moreover, the definition of
Section 850.217(d) of the Proposed Rule defined
The definition of a
Substantive changes are discussed below. The Final Rule also implements stylistic changes in conformance with the substantive changes discussed below.
Regarding the end-use thresholds for
Sections 850.217(d) and 850.224(j) in the Final Rule retain the use of “design” and “exclusive design” as an end-use threshold for identifying certain
Commenters also noted that the first parenthetical list under § 850.217(d)(1) in the Proposed Rule seemed to suggest that any
The Final Rule makes an adjustment in the first parenthetical list under § 850.217(d)(1) to clarify that the list is illustrative of the types of features that could contribute to mass-surveillance end use.
One commenter sought clarification regarding whether the terms “designed to be used” and “intended . . . to be used for” in § 850.217(d)(1) and (2), respectively, are meant to have different meanings. The commenter suggested that the Treasury Department use a single term if the meanings are identical or, alternatively, provide clarification regarding how the terms are meant to operate differently in the regulatory text.
The Treasury Department notes that the terms “designed to be used” and “intended . . . to be used for” operate distinctly from one another in § 850.217(d). The phrase “design to be used” refers to any
The Final Rule also adds parenthetical text to § 850.217(d)(1) to clarify that weapons design includes, but is not limited to, chemical, biological, radiological, or nuclear weapons.
Several commenters requested that the Treasury Department distinguish between
In response to the comments, the Final Rule includes Note 3 in § 850.217, which carves out from notification requirements certain transactions involving a
Commenters suggested that the notification requirement for certain
The Final Rule adopts the sub-paragraph (iv) pertaining to “the control of robotic systems” from § 850.217(d)(2) of the Proposed Rule without changes. The Treasury Department recognizes that this provision may implicate certain consumer or civilian applications, due to the dual-use nature of controlling robotic systems, and considered options for rescoping the provision, including carveouts based on direct patient care or robotic systems with lower levels of autonomy. Given the potential and significant capability enhancement afforded by
Section 850.217(d)(3) of the Proposed Rule defined
Regarding the computing power threshold for
Three commenters noted that
The Treasury Department anticipates that the computing power thresholds included in the Final Rule will likely need to evolve to reflect developments in AI and relevant technologies. The Final Rule includes the note to § 850.217 that was in the Proposed Rule, indicating that the Secretary, in consultation with the Secretary of Commerce, and, as appropriate, the heads of other relevant agencies, shall periodically assess whether the quantity of computing power described in paragraph (d)(3) remains effective in addressing threats to the national security of the United States and make updates, as appropriate, through public notice. The Treasury Department intends to continue engaging with stakeholders to inform future updates, as appropriate, to the notification requirements involving
Several commenters sought clarification regarding identification of
The Treasury Department notes that the
One commenter requested the Treasury Department develop a notification system requiring
Section 850.219 of the Proposed Rule defined
The Treasury Department received one comment on this provision. The commenter stated that the definition of
Section 850.221 of the Proposed Rule described four sets of circumstances that would cause a
• An individual who is a citizen or permanent resident of a
• An entity with a principal place of business in, headquartered in, incorporated in, or organized under the laws of, a
• The government of a
• Any entity, wherever located, in which one or more
As stated in the Proposed Rule, this defined term is a component of the definitions of
The Treasury Department received comments on several aspects of § 850.221. A commenter stated that the Proposed Rule would increase the time and complexity of completing due diligence due to the breadth of the definition of
A commenter noted that other U.S. national security regulatory programs publish a list of foreign persons subject to certain transactional prohibitions, allowing due diligence to be carried out through automated processes. The commenter stated that a list-based approach would reduce the compliance burden for a
Section 850.221(a) of the Proposed Rule related to those individuals that are defined as a
One commenter requested that the Treasury Department exclude from the definition of
One commenter expressed concern that the scope of this sub-paragraph, which includes individuals who are citizens or permanent residents of a
Another commenter stated that investments by a
Section 850.221(b) of the Proposed Rule defined as a
Section 850.221(c) of the Proposed Rule scoped into the definition of a
Commenters requested that the Treasury Department clarify which actions taken for or on behalf of the government of a
Section 850.221(d) of the Proposed Rule scoped into the definition of a
A commenter requested that the Treasury Department revise the definition of
One commenter recommended that the Treasury Department define “voting power of the board” to avoid uncertainty as to whether it applies based on the citizenships of members of the board. The commenter suggested a definition for the Treasury Department's consideration. The Treasury Department declines to incorporate the definition provided by the commenter because whether it refers to an individual or entity depends on the context.
The Final Rule adopts the definition of
Finally, the definition includes any entity, wherever located, in which one or more
In the Proposed Rule, § 850.224 defined a
• Developing or producing any electronic design automation software for the design of integrated circuits or
• Designing any integrated circuit that meets or exceeds certain advanced technical thresholds identified by the Department of Commerce, Bureau of Industry and Security, or integrated circuits designed for operation at or below 4.5 Kelvin;
• Fabricating integrated circuits that meets specified technical criteria;
• Packaging of any integrated circuit using
• Developing, installing, selling, or producing any supercomputer enabled by advanced integrated circuits that provide a theoretical compute capacity above a specified threshold;
• Developing a
• Developing or producing any quantum sensing platform designed for, or which the relevant
• Developing or producing any quantum network or quantum communication system designed for, or which the relevant
• Developing an
• Developing an
• Any
The Treasury Department received several comments relating to these various aspects of the scope of
One commenter requested that the Treasury Department revise the definition of
The Treasury Department has determined that the specified
Commenters requested that the rule not prohibit but instead require notification for
The Final Rule adopts the Proposed Rule's definition of
The Treasury Department notes that the criteria for integrated circuits and related technologies were scoped to capture activities that pose an acute national security threat as described in the Outbound Order and Proposed Rule. The Treasury Department further notes that the Final Rule includes certain exceptions and exemptions at §§ 850.501 and 850.502, respectively, that could except or exempt certain transactions involving advanced integrated circuits, including in the event the Secretary makes a determination regarding a national interest exemption for a
Several commenters requested the Treasury Department set the computing power thresholds for a
The Final Rule sets the computing power threshold for a
One commenter recommended that the Treasury Department add a prohibition requirement focused on targeting computing clusters required to train frontier
Another commenter recommended that the Treasury Department have a mechanism to reevaluate computing power thresholds in response to changes in technology and the development of
One commenter recommended that the Treasury Department develop a licensing system that would approve transactions where parties can demonstrate that a relevant
One commenter also requested that the Treasury Department synchronize its definition of an
In response, the Treasury Department notes that certain technologies implicated by the Final Rule may be necessarily different from those implicated by the EAR, since the restrictions on certain outbound investments are meant to prevent a
One commenter expressed concern that § 850.224(g), which defines a
The Treasury Department considered the technologies identified in § 850.224(g), including their potential use in research or commercial applications, and adopts this provision from the Proposed Rule in the Final Rule without changes. The Treasury Department notes that development of a quantum computer, or production of any of the critical components required to produce a quantum computer such as dilution refrigerators or two-stage pulse tube cryocoolers, by a
Several commenters discussed § 850.224(m) of the Proposed Rule, which provided that any
The Final Rule makes no changes to § 850.224(m) as set forth in the Proposed Rule and adopts it in full. A
One commenter stated that, because some of the lists effectively already
As stated above, the Treasury Department considers that § 850.224(m) is necessary to address circumstances in which a
The Treasury Department further declines to establish and maintain a de novo list of entities that are engaged in certain activities for the purposes of
Lastly, the Treasury Department notes that § 850.224(m) should not be construed as altering or affecting any other authority, process, regulation, investigation, enforcement measure, license, authorization, or review provided by or established under any other provision of Federal law.
Section 850.229 of the Proposed Rule defined a
The Treasury Department received comments on certain aspects of this section. A commenter requested that the Treasury Department reconsider prohibiting or regulating investments by foreign-domiciled funds that are controlled or managed by U.S. companies. The Treasury Department reiterates that any branch of a U.S. entity would be a
A commenter expressed concern about the extraterritorial reach of the definition, particularly as related to U.S. citizens employed by companies operating in third countries. The Treasury Department notes that including U.S. citizens and permanent residents, wherever located, is critical to the effectiveness of the Final Rule, as narrowing the definition may present opportunities for circumvention. Furthermore, the scope of this section is derived from section 9(h) of the Outbound Order.
A commenter requested that “any person in the United States” be removed from the definition of
One commenter requested that the Treasury Department supplement the definition of
The Final Rule adopts § 850.229 from the Proposed Rule without changes. The Final Rule will apply to the conduct of a
This subpart of the Final Rule describes activities that are prohibited. Such activities include a
Under the Proposed Rule, a
One commenter argued that the term “all reasonable steps” is overly broad and would impose an unachievable standard upon
The Treasury Department is finalizing § 850.302 as proposed. The Treasury Department declines to eliminate the requirement for
The specific measures identified in § 850.302(b) of the Final Rule that a
Section 850.303(a) of the Proposed Rule would have prohibited a
Section 850.303(b) of the Proposed Rule carved out from this prohibition a
As the Treasury Department noted in the Proposed Rule, this provision was intended to address a potential loophole, such as a
Commenters requested the Treasury Department amend § 850.303 to narrow the scope of
Several commenters requested that the Treasury Department narrow the scope of “knowingly directing” by removing “or substantially participate in” and “or as part of a group” from the second sentence in § 850.303(a). Two commenters requested that the Treasury Department amend § 850.303(a) to note that certain officers or directors “may” have such authority depending on the facts and circumstances, and that not all officers and directors have any authority or power with respect to investment decisions.
Another commenter noted that the inclusion of “senior advisor” was unclear, as persons acting solely in an advisory capacity would not typically be able to “exercise” authority to direct, order, decide upon, or approve a transaction. Three commenters requested that the Treasury Department clarify that in addition to having the authority to make or substantially
The Final Rule revises § 850.303(a) in response to the comments. Under the Final Rule, a
The Final Rule does not make other changes recommended by commenters to 850.303(a), such as removing “substantially participates” or “as part of a group” from what it is to “knowingly direct.” The Treasury Department is seeking to balance concerns about potential evasion with concerns related to the scope of the provision, including impacts on employment of non-
The Treasury Department declines to adopt a formal “facts and circumstances” test in the Final Rule, because the existing two-step requirement that a
The Treasury Department has clarified that consistent with commenter views, to “knowingly direct” an otherwise prohibited transaction by a non-
The Treasury Department considered the potential impact of this provision on employment opportunities for
Other commenters suggested exclusions for certain activities, including the provision of third-party services, such as banking, due diligence, and routine administrative work by a
One commenter requested clarification on how § 850.303 would apply to a
The Final Rule will apply to a
Another commenter requested the Treasury Department clarify whether penalties apply to the relevant
Several commenters requested additional clarification or guidance regarding the recusal provision at § 850.303(b). A few commenters requested that the Treasury Department clarify at what point a
The Final Rule implements § 850.303(b) with modifications in response to comments. In particular, the Final Rule specifies in § 850.303(b) that a
(1) Participation in formal approval and decision-making processes related to the transaction, including making a recommendation;
(2) Reviewing, editing, commenting on, approving, and signing relevant transaction documents; and
(3) Engaging in negotiations with the investment target (or, as applicable, the relevant transaction counterparty, such as a joint venture partner).
Consistent with the requests of most commenters on this issue, the recusal carveout focuses on activities connected to an investment decision and does not reach post-transaction management and oversight of an investment (so long as such post-transaction activity does not fall under the description of activities in § 850.303(b)). Because the definition of
Because the above carveout is conjunctive, a
This subpart of the Final Rule requires a
• If it undertakes a
• If its
• If the
In each of the above circumstances, the
The Proposed Rule required a
The Treasury Department received several comments with respect to this section. Commenters requested revisions to § 850.403 to remove the obligation to submit a notification in the case where a transaction counterparty has pivoted into a
The Final Rule adopts § 850.403 of the Proposed Rule largely as proposed. The only change is a technical edit to Note 1 of § 850.403 to remove the phrase “For avoidance of doubt” from the beginning of the note. This edit is for clarity and is not intended to affect the substance of the requirement. Section 850.403 applies where a
The purpose of this provision, consistent with the Outbound Order, is to increase the U.S. Government's visibility into
Accordingly, under the Final Rule, a
Section 850.404 of the Proposed Rule detailed the procedures that would have been required for submitting a notification regarding a
The Treasury Department received several comments on the notification procedures. One commenter requested that in the case of multiple funding rounds where a
The Final Rule adopts § 850.404 from the Proposed Rule without change. In the case of multiple funding rounds where the information is consistent across investments, the Treasury Department is exploring whether the electronic system for submission of notifications can allow a duplicate notification to be populated, updated as needed, and submitted, with a new certification under § 850.203. A blanket exception for additional investments in the case of multiple funding rounds would be counter to the policy objective of increasing the U.S. Government's visibility into the volume and nature of
The Final Rule describes at § 850.404 the method of submission, that electronic filing instructions will be made available and that only such electronic filing will constitute the filing of a notification pursuant to the Final Rule. Under § 850.404(b), the Treasury Department may contact a
Section 850.405 of the Proposed Rule detailed the specific information that a
The Treasury Department received several comments on this section. One commenter suggested narrowing the information requirements or including a de minimis exception, particularly for smaller firms and minor transactions, to reduce the compliance burden for companies. The Treasury Department sought to address in § 850.405 of the Proposed Rule the basic information necessary to analyze and increase the U.S. Government's visibility into
A commenter requested additional guidance regarding a
Another commenter referred to practices in typical venture capital and private equity investments that would make meeting the content requirements of a notification difficult, and therefore requested that requirements be lifted regarding identities and ultimate owner disclosures. The commenter stated that certain parties are contractually prohibited from disclosing the identities
A commenter sought clarification on the record retention requirements, specifically as to whether such requirements would apply to non-
The Treasury Department is adopting § 850.405 as set forth in Proposed Rule, with technical edits to paragraph (a) and paragraphs (b)(3) and (9). The technical edit to paragraph (a) clarifies that a notification submitted to the Treasury Department must be accurate and complete subject to paragraph (d), which discusses how a
In keeping with the goal of tailoring the Proposed Rule to address the national security threat described in the Outbound Order while minimizing disruptive effects on
The Proposed Rule identified the following categories of
An investment by a
An investment by a
An investment below a certain size by a
A
An intracompany transaction between a
Fulfillment of a
The acquisition of a voting interest in a
Certain transactions with or involving a person of a country or territory outside the United States that has been designated by the Secretary in accordance with provisions set forth in the Proposed Rule.
The Treasury Department received comments to § 850.501 of the Proposed Rule, which are discussed below.
Commenters were generally supportive of the
One commenter requested clarification that the exceptions would apply to transactions undertaken by (1) a
Upon consideration of the requests to list activities or transactions that are not covered within the text of the Final Rule, either within the definition of a
With respect to the application of the exceptions to a
Including an exception for restructurings or follow-on investments would substantially undermine the goals of the Final Rule. The national security objectives of the Outbound Order and Final Rule are implicated regardless of whether earlier investments may have been permitted. Creating a categorical exception for corporate restructuring would potentially open a loophole, and where a transaction meets the criteria of a
The Treasury Department assesses that an exception for sale-and-leaseback arrangements would not be consistent with the national security goals of the Final Rule. To the extent that the
Several commenters requested a general de minimis exception be created in § 850.501 based on the dollar value of the transaction or the percentage of outstanding equity acquired by the
The Treasury Department declines to institute an exception across transactions based purely on their dollar value or the percentage of equity. One reason is that the various types of transactions already included in the definition of an
The Treasury Department additionally declines to create an exception specifically for the semiconductor industry. Given the likelihood that
The Treasury Department has made one technical edit to the chapeau of § 850.501. The phrase “The following transactions are excepted transactions” had been at (a) in the Proposed Rule, but this phrase is being moved into the chapeau in the Final Rule, and the phrase “An investment by a U.S. person,” which had been at (1) in the Proposed Rule, is now at (a)(1) in the Final Rule. This edit is for clarity and
Section 850.501(a)(1)(i) of the Proposed Rule defined as an
A few commenters supported the Proposed Rule's incorporation of elements from the definition of “publicly traded security” as it is used by the Office of Foreign Assets Control (OFAC) in connection with the Non-Specially Designated Nationals (SDN) Chinese Military-Industrial Complex Companies List. One commenter supported the additional clarity offered in the Proposed Rule on the exception for investments into publicly traded securities.
Several commenters discussed the definition of publicly traded security in the context of an
One commenter suggested exceptions for investments in securities be expanded to cover a variety of additional instruments, including index funds, mutual funds, and exchange-traded funds “involving” publicly traded securities of a
One commenter requested that the Final Rule consider subscriptions to IPOs as a “publicly traded security” or otherwise exempt subscriptions to IPOs, while others sought clarification whether initial purchasers would qualify for the exception. Other commenters requested clarity regarding whether transactions by underwriters, advisers, and other providers of “ancillary services” participating in or assisting with an IPO of
The Final Rule implements § 850.501(a)(1)(i) from the Proposed Rule without change. Under the Final Rule, an
In response to the comment regarding a “passive-index loophole,” the exception for publicly traded securities as well as that for securities issued by an investment company (further discussed below), are not loopholes but rather represent a considered decision to carve out investments that are unlikely to contribute to the national security risks connected to the transfer of intangible benefits identified in the Outbound Order. In response to one commenter's request to except the receipt of equity or an equity-related instrument from a public company, the Treasury Department has created an exception for receipt of employment compensation in the form of stock or stock options in the Final Rule discussed more above (see
The Treasury Department considers the acquisition of an equity interest in a
Section 850.501(a)(1)(ii) of the Proposed Rule defined as an
The Treasury Department received a few comments on this section of the Proposed Rule. One commenter requested that the Treasury Department consider requiring index providers to engage in public consultation prior to undertaking methodological changes to indexes. Another commenter indicated their support for the proposed exception and requested that it be expanded to include common and collective investment funds that are exempt from the definition of “investment company” under the ICA, pursuant to section 3(c)(3) or section 3(c)(11) thereof, but are subject to regulation by Federal or state banking authorities (also known as collective investment trusts or CITs), arguing that they, like index funds, are unlikely to present the kind of risks contemplated by the Outbound Order. One commenter requested that the exceptions for investments in securities
The Treasury Department is implementing § 850.501(a)(1)(ii) with three changes from the Proposed Rule. The first is the insertion of “elected to be regulated as or is regulated as a business development company” in place of “elected to be a business development company.” This is a technical edit and is not intended to alter the substance of the rule. The second change is an updated statutory reference to 15 U.S.C. 80a-53 in place of 15 U.S.C. 8a-54 and a reference to the Investment Company Act of 1940 “as amended.” This is also a technical edit and is not intended to alter the substance of the rule. The third is the removal of the reference to “or any derivative thereon,” given the exception for derivatives discussed above and located at § 850.501(a)(1)(iv) of the Final Rule. Under this provision of the Final Rule, an investment by a
The Treasury Department recognizes the policy goal underpinning the request to impose a requirement on index funds to engage in public consultation prior to making methodological changes. However, the request exceeds the scope of authority delegated to the Treasury Department by the Outbound Order, and thus cannot be addressed in this rulemaking. With respect to CITs, while CITs serve a similar purpose to registered investment companies, they are not themselves separate legal entities, but a type of fiduciary account maintained by a Federal or state bank or trust company. CITs are investment funds available mainly in employer-sponsored retirement plans and unregulated by the SEC, so adding an exception for CITs would undermine this separate treatment for pooled investment funds under § 850.501(a)(1)(iii). The Treasury Department declines to expand the exceptions for investments in securities issued by registered investment companies to cover securities issued by companies with equivalent status under the securities laws of non-U.S. countries given a desire to keep the exception limited and the complexities in assessing the equivalence of non-U.S. securities laws, which can vary considerably across jurisdictions.
The Proposed Rule presented two alternates for § 850.501(a)(1)(iii) for commenters to consider. Under proposed Alternate 1, a
A number of commenters expressed a preference for Alternate 1. No commenters expressed a preference for Alternate 2. Several commenters noted that Alternate 2 would make the exception for an LP investment effectively unavailable to most
Two commenters requested that if the Treasury Department adopts Alternate 2, it should raise the dollar threshold to be significantly higher, such as $20 million. One commenter stated that there should be no de minimis threshold for the exception for LP investments at all because LPs only have limited liability as long as they remain passive investors. One commenter suggested that an exception for all passive investment, similar to the approach taken for LPs in Alternate 1, be included in the rule. One commenter requested that the Treasury Department remove the exception for LP investments altogether.
In discussing the effects of Alternate 2, one commenter stated that some fund managers do not accept investments under $1 million to comply with SEC laws and regulations related to “sophisticated investors.” The commenter also stated that a range of investors rely on investment in private funds as a source of diversification and strong returns for investing the retirement savings of tens of millions of American workers and that if Alternate 2 were selected, these investors may forgo such investments, disrupting cross-border investment and causing them to lose an essential source of diversification for the retirement savings of tens of millions of American workers. One commenter stated that based on a review of a random sample of 400 LP investments across all its funds, 255 contributed in excess of $1,000,000 per fund.
A number of commenters requested that, regardless of which alternate the Treasury Department selects for the final rule, an
Several commenters discussed challenges to compliance with either or both alternates. Multiple commenters requested further details regarding how the percentage of AUM would be calculated for the purposes of Alternate 1 given, for example, multiple co-investments in a single target by the same LP via multiple funds as well as the fact that fundraising from multiple LPs occurs over a period of time, causing a given LP's percentage of total contributed capital to fluctuate during the fundraising period. Several comments related to whether the factors enumerated in § 850.501(a)(1)(iii)(A)(
The Treasury Department notes commenter preferences for Alternate 1, as well as the comments and data stating that a $1 million dollar threshold could make the exception practically unavailable to many larger or institutional investors. However, the fact that an institutional investor generally makes investments as an LP investor that exceed a given dollar threshold is not dispositive to the analysis of that threshold. As discussed in the Proposed Rule, the rationale for excepting an LP investment by a
To address this risk of intangible benefits, the Treasury Department declines to adopt the element of Alternate 1 linked to a pooled investment fund's AUM. Instead, in response to requests to raise the dollar threshold in Alternate 2, the Treasury Department has determined to apply an exception at $2,000,000, or double that discussed in the Proposed Rule. This higher threshold is intended to facilitate compliance by
The Treasury Department has also considered the continued interest of institutional investors to have exposure to a wide variety of pooled investment funds in search of returns on capital. In response to commenter requests to maintain an exception for a
This approach aligns with the goals of the Outbound Order because the
The overall hybrid approach adopted in the Final Rule—that is, defining
Finally, the hybrid approach adopted in the Final Rule makes the exception accessible to a wide variety of investor sizes and types but retains the bright-line simplicity of Alternate 1. It eliminates the need to interpret and
Under § 850.501(a)(2) of the Proposed Rule, certain transactions that otherwise qualified as
• The power to prevent the sale or pledge of all or substantially all of the assets of an entity or a voluntary filing for bankruptcy or liquidation;
• The power to prevent an entity from entering into contracts with majority investors or their affiliates;
• The power to prevent an entity from guaranteeing the obligations of majority investors or their affiliates;
• The right to purchase an additional interest in an entity to prevent the dilution of an investor's pro rata interest in that entity in the event that the entity issued additional instruments conveying interests in the entity;
• The power to prevent the change of existing legal rights or preferences of the particular class of stock held by minority investors, as provided in the relevant corporate documents governing such stock; and
• The power to prevent the amendment of the Articles of Incorporation, constituent agreement, or other organizational documents of an entity with respect to the matters described in § 850.501(a)(2)(i) through (v) of the Proposed Rule.
A few commenters provided responses to this section of the Proposed Rule. One commenter noted that in certain jurisdictions, including the PRC, rules for listed companies give shareholders owning no more than 3 percent of shares the right to put forward for a shareholder vote a proposal to nominate directors. The commenter asked that the Treasury Department either make explicit that such a right is a standard minority shareholder protection or that an otherwise
The Treasury Department acknowledges that certain jurisdictions, including the PRC, may provide proposal rights to relatively low percentage shareholders in companies listed in those jurisdictions. The Treasury Department, however, does not consider these rights to be standard minority protection rights and declines to modify the Final Rule to accommodate this scenario. Standard minority protection rights are typically defensive in nature and are aimed at protecting minority shareholders' investments from actions taken by majority investors. A right to propose a slate of directors is a positive, not negative right, and goes beyond just protecting the investment of the minority shareholders. Being afforded such a right with respect to an investment in a
The Treasury Department does not support the inclusion of an explicit affirmation that transactions providing only minority shareholder protections are excepted. The text of the Final Rule is clear that if an investment falls within the definition of 850.501(a)(1), it is an
Section 850.501(a)(2) of the Final Rule, therefore, remains largely unchanged from the Proposed Rule, with the exception of a technical edit discussed below. An investment in a
Section 850.501(b) of the Proposed Rule defined as an
The Treasury Department received two comments on this section of the Proposed Rule. Both commenters recommended that the exception be expanded to include any acquisition of equity or other interest by a
The Treasury Department declines to expand the exception and adopts the text of the Proposed Rule without changes. Expanding the exception in the manner recommended by commenters would open a potential loophole with respect to joint ventures—if, for example, a
Section 850.501(c) of the Proposed Rule excepted from the definition of
Several commenters sought clarification regarding the application of the exception, stating that the Proposed Rule was ambiguous with respect to the line between transactions that would support ongoing operations and those that would fund
One commenter interpreted the Proposed Rule to limit the exception to only transactions between a
Multiple commenters sought to expand the reach of the exception beyond the parent-subsidiary relationship between a
Some commenters suggested that the exception should extend to
One commenter asked for an illustrative list of intracompany transactions that would fall within the exception, and those that would not—
The Treasury Department notes the requests for clarification with respect to the Proposed Rule regarding the intended scope of the exception for intracompany transfers under § 850.501(c). The purpose of the exception in the Final Rule is to carve out from the definition of
As written, the intracompany transfer exception in the Final Rule does not include an exception for intracompany transfers that support new operations that are
In other words, the intracompany transfer exception in the Final Rule allows a
The Treasury Department does not support extending the intracompany transfer exception beyond the
The Treasury Department also does not support the establishment of a threshold for the exception based on financial significance; the exception applies to any transaction of any value between a
The Proposed Rule included an exception for transactions made in fulfillment of a
Multiple commenters provided responses to this section of the Proposed Rule. A few commenters expressed support for the Treasury Department's decision to provide for only prospective application of the rule, while several requested that the Treasury Department revise the exception for commitments entered into before August 9, 2023, to instead except commitments entered into before the effective date of the Final Rule. One commenter asked to revise the exception for transactions made pursuant to a binding, uncalled capital commitment entered into before August 9, 2023, to instead except commitments that the investor did not know were prohibited at the time the commitments were entered into.
A few commenters stated that limiting the exception to binding, uncalled capital commitments made prior to August 9, 2023, could lead to retroactive application if terms defined elsewhere, like
In response to the comments, and given certain fairness considerations raised by the commenters, the Treasury Department has revised § 850.501(d) of the Final Rule to provide an exception for transactions made after the effective date of the Final Rule (January 2, 2025) pursuant to a binding, uncalled capital commitment entered into before the effective date of the Final Rule.
If the Treasury Department broadens the scope of what is covered in subsequent rulemaking, the Treasury Department expects to consider whether it is appropriate to amend this provision to take into account binding commitments made after the specified date. The Treasury Department notes that the exception in § 850.501(d) is limited to transactions pursuant to binding capital commitments made before the effective date (
Section 850.501(e) of the Proposed Rule included in the definition of
The Treasury Department received multiple comments on this provision of the Proposed Rule, including one expressing general support of the exception. Several comments requested revisions to the Proposed Rule, while one sought to remove the exception entirely. With respect to requested revisions, one commenter stated that, if foreclosures on collateral remain within the scope of the rule, then the Treasury Department should revise § 850.501(e)(2) to state that the
A few commenters sought to expand the scope of the exception. One commenter requested the exception be broadened to include instances where the
The Treasury Department declines to expand the exception to include U.S. bank lenders that play a larger role in the syndicate. With such a role comes a greater opportunity to cause the transfer of the equity and potentially to transfer intangible benefits to the
A few commenters requested that the Treasury Department revise the exception to apply to syndicates led by either a bank or a nonbank. The Treasury Department declines to expand the exception in the Final Rule to include nonbank lenders. The Treasury Department seeks to keep this exception limited, given that it involves a
The Final Rule, therefore, remains largely unchanged from the Proposed Rule, except for the change in § 850.501(e)(2) discussed above. The exception, therefore, applies to the acquisition of a voting interest in a
Recognizing shared objectives and in furtherance of the U.S. Government's efforts to encourage partners and allies to address risks related to outbound investment, § 850.501(f) of the Proposed Rule excepted certain transactions with or involving a person of a country or territory outside of the United States designated by the Secretary in accordance with certain criteria (to be developed) that related to that country or territory's own measures to address the national security risk related to certain outbound investment. The Treasury Department expected that any such country or territory would be designated after accounting for factors such as whether the country or territory was regulating outbound investment transactions involving technologies critical to a
The Proposed Rule would have provided for the application of this exception only to certain types of transactions with or involving a person of a designated country or territory. The Proposed Rule stated that the Secretary would determine the types of transactions for which the related national security concerns were likely to be adequately addressed by measures taken or that may be taken by the government of a country or territory outside the United States. Once developed, the Treasury Department stated that it would make the factors for the designation of a country or territory as well as types of transactions and/or activities that would be subject to the exception publicly available on the Treasury Department's Outbound Investment Security Program website.
Several commenters addressed—and were generally supportive of—the proposed exception under § 850.501(f).
A few commenters offered a framework for how the Treasury Department should consider scoping which transactions should be subject to the exception, or general principles for applying the exception in the future. Others noted that the proposed exception could convey an unfair advantage to a foreign competitor unless the foreign program is equally stringent. Another commenter noted that the proposed exception would not provide an incentive for a country or territory to develop an equivalent program because it would affect only a small number of businesses in any given country, and that if the Treasury Department were to consider other national security measures (such as export controls) in evaluating a country or territory for designation, then the country may gain the benefit of the incentive without needing to establish its own outbound security program. One commenter asked that the Treasury Department revise the Proposed Rule to clarify that the Secretary will make public the bases for the decision to designate a country or territory. Another commenter requested that the criteria for the exception be “fully developed and specific” prior to the issuance of the Final Rule.
The Treasury Department appreciates commenters' efforts to help develop a framework and to conceptualize the proposed exception and identify principles to guide its operation, as well as their interest in having the relevant consideration criteria be developed prior to the issuance of the Final Rule. Accordingly, the Treasury Department anticipates making available on its
• A country or territory's legal authority to regulate outbound investment;
• The extent to which the country or territory has in place and effectively utilizes a mechanism to regulate outbound investment involving sensitive technologies and products in the semiconductors and microelectronics, quantum information technologies, and AI sectors;
• The extent to which the country or territory possesses the legal authority to prohibit or require notification for outbound investment transactions involving sensitive technologies and products in the semiconductors and microelectronics, quantum information technologies, and AI sectors; and
• The extent to which the country or territory possesses legal authority to control the export of sensitive technologies and products in the semiconductors and microelectronics, quantum information technologies, and AI sectors to any foreign persons anywhere they may be located.
With respect to determinations, the Treasury Department is currently considering adopting an approach similar to that described by commenters, where the “types of transactions” for which this exception is available may differ based on whether the country or territory is the “source of investment” or the “destination of investment.”
In response to comments, the Treasury Department notes that any exceptions created under this section would ultimately apply to
The Treasury Department does not expect a foreign country or territory's regime related to outbound investment to necessarily be identical to the Final Rule. The relevant focus remains on the national security risks related to and, as stated in the Outbound Order, potentially exacerbated by, outbound investment. As such, the Secretary, following relevant consultations, may determine that certain types of transactions involving those countries or territories should be excepted.
Accordingly, the Final Rule adopts at § 850.501(g) the exception found at § 850.501(f) of the Proposed Rule with minor modifications. The Final Rule clarifies that the national security risks related to outbound investment to be addressed by a country or territory outside of the United States must be similar to those described by the Outbound Order. Additionally, consistent with the national emergency declared in the Outbound Order, the risks must be related to, rather than be posed by outbound investment. The Treasury Department assesses that these changes will provide the Secretary with greater flexibility to consider the full range of a country's or territory's legal authorities and programs when making designations or determinations under the rule. In addition, to afford flexibility to respond to changes in the international threat environment, the Treasury Department has added § 850.501(g)(4) to provide the Secretary with the authority to rescind a designation or determination if determined to be appropriate. The Secretary's recission of a designation or determination would apply prospectively and would be announced publicly.
The Final Rule implements ten categories of
An investment by a
An investment by a
An investment of a certain size by a
An investment by a
A
An intracompany transaction between a
Fulfillment of a
The acquisition of a voting interest in a
The receipt of employment compensation by an individual in the form of stock or stock options, or the exercise of such options; and
Certain transactions with or involving a person of a country or territory outside the United States that has been designated by the Secretary in accordance with provisions set forth in § 850.501(g) of the Final Rule.
The Outbound Order authorizes the Secretary to “exempt from applicable prohibitions or notification requirements any transaction or transactions determined by the Secretary, in consultation with the heads of relevant agencies, as appropriate, to be in the national interest of the United States.” As described in the Proposed Rule, the Secretary, in consultation with the Secretary of Commerce, the Secretary of State, and the heads of relevant agencies, as appropriate, may have determined that a
Section 850.502 of the Proposed Rule described the process and considerations for the Secretary's authority to exempt a
To request a national interest exemption under the Proposed Rule, a
The Treasury Department received comments on § 850.502 of the Proposed Rule. Commenters generally expressed support for this section. Several commenters requested that the Treasury Department develop clearer and more specific considerations that will be evaluated in determining whether a
While understanding the interest of commenters in expanding the enumerated considerations that may inform a national interest determination, the Treasury Department declines to include additional enumerated considerations or clarifications in the Final Rule. As discussed in the Proposed Rule, any determination will take into account the totality of the relevant facts and circumstances and may be informed by, among other considerations, the transaction's effect on critical U.S. supply chain needs, domestic production needed for projected national defense requirements, the United States' technological leadership globally in areas affecting U.S. national security, and the impact on national security from prohibiting a given transaction. For the avoidance of doubt, the considerations in the Final Rule are not exclusive, and additional considerations may inform any determination by the Secretary. The Treasury Department anticipates providing information on the process and requirements for any national interest exemption request on its Outbound Investment Security Program website.
One commenter requested clarity as to whether individuals with delegated authority can seek an exemption on behalf of a
One commenter suggested that the rule include clear timelines for both the requesting person and the Treasury Department in reaching a determination and seeking additional information about the
At this time, the Treasury Department is not instituting a timeline for its internal review and determination. After the Outbound Order and Final Rule are implemented, the Treasury Department may consider instituting such a timeline or providing additional information.
One commenter requested that the Treasury Department establish an appeals process and timeline in the event a request for an exemption is denied. The Treasury Department declines to establish such a process at this time and will be informed by experience.
One commenter suggested that the Treasury Department establish, prior to the issuance of the rule, the binding conditions to which an exempt
The Final Rule adopts § 850.502 as set forth in the Proposed Rule with a modification to require that any information and documents submitted in relation to a national interest determination request be subject to the certification described in § 850.203. As noted above, a certification based on misrepresentation, concealment, or omission of material fact may impact the validity of a national interest determination.
Under § 850.502 of the Final Rule, the Secretary, in consultation with the Secretary of Commerce, the Secretary of State, and the heads of relevant agencies, as appropriate, may determine that a
The Treasury Department reiterates that it will not grant retroactive waivers or exemptions (
Subpart F of the Proposed Rule (§§ 850.601 through 850.604) described conduct that would be treated as a violation of the Proposed Rule. Such conduct would have included taking any action prohibited by the Proposed Rule, failing to take any action required by the Proposed Rule within the timeframe and in the manner specified, and making materially false or misleading representations to the Treasury Department when submitting any information under the Proposed Rule. The Proposed Rule would also have prohibited any action that evades or avoids or has the purpose of evading or avoiding any of the prohibitions of the Proposed Rule. The Treasury Department did not receive any comments on Subpart F of the Proposed Rule.
The Final Rule implements Subpart F as proposed, with the exception of a clarification to § 850.603 to include “omission.” The Treasury Department is making this change to clarify that in addition to any materially false or misleading information submitted pursuant to the Final Rule, the omission of any such material information would also constitute a violation of the Final Rule.
Subpart G of the Proposed Rule (§§ 850.701 through 850.704) described the civil and criminal penalties that may be imposed for violations of its requirements up to the maximum amount set forth in section 206 of IEEPA. Furthermore, the Proposed Rule would have permitted the Secretary, in consultation with the heads of relevant agencies, to take action to nullify, void, or otherwise compel divestment of any
The Treasury Department received comments to this subpart. One commenter suggested the rule include a process for appealing a penalty that is imposed or provide some other administrative or legal remedy. Other commenters requested that the Treasury Department clarify whether a non-
The Treasury Department declines to establish an appeals process at this time. Any penalty will be imposed based on a totality of the facts and circumstances. The Treasury Department anticipates providing additional information regarding compliance with the program at a later date. The Treasury Department also notes that the Final Rule places certain obligations solely upon
The Final Rule makes technical edits to the text of the provisions of Subpart G. Under the Final Rule, the Treasury Department may impose a civil penalty on any person that violates the Final Rule. In § 850.701(a)(1), the Final Rule clarifies that the maximum civil penalty that may be imposed on any person who violates, attempts to violate, conspires to violate, or causes a violation of any order, regulation, or prohibition issued under IEEPA, including any provision of the Final Rule, is the greater of twice the value of the transaction that is the basis of the violation with respect to which the penalty is imposed or $250,000, which amount is subject to adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The Final Rule at § 850.701(c) notes that, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended, notice of the maximum penalty which may be assessed under this section will be published in the
Section 850.801 of the Proposed Rule described the Treasury Department's proposal to treat as confidential, subject to limited exceptions, information and documentary materials that would have been submitted pursuant to its provisions and were not otherwise publicly available.
The Proposed Rule would have permitted the Treasury Department to disclose information or documentary materials, subject to appropriate confidentiality and classification requirements, where such materials were relevant to any judicial or administrative action or proceeding; provided to Congress; or provided to any domestic governmental entity or to a foreign governmental entity of a U.S. partner or ally, where the information or materials was important to the national security analysis or actions of such governmental entity or the Treasury Department. Additionally, the Proposed Rule would have permitted the Treasury Department to disclose information to third parties with the submitter's consent, and it also permitted the Treasury Department to use the information gathered to fulfill its obligations under the Outbound Order, potentially including publication of anonymized data.
As explained in the Proposed Rule, the Treasury Department was considering whether there were additional circumstances where disclosure of otherwise confidential information should be permitted. One
Multiple commenters provided perspectives on § 850.801 of the Proposed Rule. One commenter requested that the Treasury Department limit the sharing of information among U.S. Government agencies to only what is necessary to develop the analysis and recommendations required by the Outbound Order. The commenter also suggested retaining the other information sharing exceptions, particularly the exception for supporting judicial or administrative procedures. Another commenter expressed concerns about the Treasury Department's ability to share confidential business information submitted by parties with foreign government entities, potentially placing U.S. companies at a competitive disadvantage, and urged clarification that such information may be shared only to the extent “necessary” for the purpose of national security. One commenter requested the Treasury Department compile a monthly report on the distribution of notified investments across geography and industry, among other categories, to be “shared with the relevant security or intelligence agency.”
While the Treasury Department recognizes the importance of safeguarding sensitive information, limiting the ability of the Treasury Department to share information among U.S. Government agencies to only what is necessary to develop the required information and recommendations to the President would undermine certain directives in the Outbound Order. For example, the Outbound Order directs the Treasury Department to consult with relevant departments and agencies in assessing the effectiveness of the Final Rule. Additionally, the Treasury Department, as stated in the Proposed Rule, intends to analyze
With respect to the sharing of information with foreign governments of a United States partner or ally, the Treasury Department declines to change the standard under the exception to the confidentiality provision in § 850.801(b)(3) from “important” to “necessary” and instead retains the language “important to the national security analysis or actions of such governmental entity or the Department of the Treasury.” The Treasury Department views this as a high bar and intends that any sharing of information would be subject to appropriate safeguards, including appropriate confidentiality and classification requirements, which the Treasury Department takes seriously.
In response to the commenter suggestion regarding monthly data being shared with the relevant security or intelligence agencies, the Outbound Order directs the Treasury Department to provide to the President, through the Assistant to the President for National Security Affairs, an assessment of the effectiveness of the Outbound Investment Security Program in addressing national security threats identified in the Outbound Order as well as appropriate recommendations. Such assessment and/or recommendations may include anonymized data pertaining to
The Treasury Department is implementing in the Final Rule the proposal discussed in the preamble to the Proposed Rule that will allow the disclosure of information when the Secretary determines such disclosure is in the national interest. Factors that the Secretary may consider when determining if disclosure is in the national interest may include whether such disclosure will further national security interests, address law enforcement needs, or promote compliance with the rule. Circumstances in which the Secretary may determine the disclosure of information to be in the national interest can include, for example, identifying
Section 850.903 of the Proposed Rule provided that if any provision of the Final Rule, or the application thereof to any person or circumstance, is held to be invalid, such invalidity would not affect other provisions, or application of such provisions to other persons or circumstances, that can be given effect without the invalid provision or application. The Treasury Department did not receive any comments on § 850.903 and adopts it without change in the Final Rule.
If any provisions of this Final Rule, or the application thereof to any person or circumstance, is held to be invalid, such invalidity shall not affect other provisions, or application of such provisions to other persons or circumstances, that can be given effect without the invalid provision or application. Each provision of the Final Rule and application thereof serves an important, related, but distinct purpose; provides a distinct benefit separate from, and in addition to, the benefit provided by other provisions and applications; is supported by evidence and findings that stand independent of each other; and is capable of operating independently such that the invalidity of any particular provision or application would not undermine the operability or usefulness of other aspects of the Final Rule. Based on its analysis, the Treasury Department believes that although more limited application would change the magnitude of the overall benefit of the Final Rule, it would not undermine the important benefit of, and justification for, the Final Rule's application to other persons or circumstances. The qualitative and quantitative benefits of the Final Rule outweigh the costs for all persons and circumstances covered by the Final Rule.
For example, but without limitation, if application of the Final Rule to a
The key requirements of the Final Rule—the prohibition or notification of certain
The Proposed Rule set forth at § 850.904 that any person may be required to furnish information under oath regarding any act or transaction subject to part 850. Pursuant to § 850.904, the Treasury Department could have requested this information at any time and conduct investigations, hold hearings, take depositions, and compel witnesses to testify through subpoenas, among other things.
A commenter requested clarification in the rule that any inquiry made of legal counsel under this section should be conducted subject to the attorney-client privilege applicable in the relevant jurisdiction. The Treasury Department declines to specifically mention any particular defense, such as the attorney-client privilege, to a demand for information under this provision. Individuals required to provide such information may raise such defenses as applicable and appropriate, although the availability of such defenses does not excuse a party from the requirements of this rule.
Another commenter suggested the requirement to furnish information was overly broad, and recommended narrowing its scope to only functions necessary, in the commenter's view, for enforcement of the rule. Additionally, the commenter requested the Treasury Department make revisions including by removing the language requiring the information to be submitted under oath, in the form of reports or otherwise, as well as the language permitting the inquiry to be at any time. The commenter also requested narrowing the Treasury Department's authority to request information from “any person” about any “act or transaction” subject to the Proposed Rule to instead requesting information only from a
Limiting the Treasury Department's ability to seek information in connection with transactions subject to part 850 as suggested by the commenter would undermine the Treasury Department's ability to investigate and enforce violations of the Final Rule. Given the focus of the Final Rule on obligations on
The Final Rule makes no change to the text of proposed § 850.904. Under the Final Rule, any person may be required to furnish information under oath regarding any act or transaction subject to its provisions. The Treasury Department can request this information at any time and the Treasury Department has the authority to conduct investigations, hold hearings, take depositions, and compel witnesses to
Several commenters noted that the Proposed Rule would impose what the commenters believed were significant compliance costs on U.S. companies, particularly small businesses, U.S. investors, and also foreign persons. One such commenter stated that the compliance costs for U.S. investors would be passed along to businesses, limiting resources to advance innovation. Another commenter noted that for venture capital investments in particular, it would be difficult and costly to determine who is
As described below in Section IV, the Treasury Department assessed the costs and benefits of the Final Rule. As noted in that analysis, while the Final Rule will impose some compliance costs on U.S. companies, investors, and foreign persons, the Treasury Department estimates that the Final Rule will apply to a relatively modest volume of potential
Several commenters requested the Treasury Department develop tools to assist compliance with the rule, such as public guidance or advisories, frequently asked questions (FAQs), sample due diligence questionnaires, red flags and case examples, or recommended contractual language, as well as enforcement guidelines.
Some commenters requested that the Treasury Department include specific fact patterns in the regulatory text, not just in the preamble to the rule, to illustrate transactions that might be covered, prohibited, or excepted, or that the Treasury Department publish these examples as FAQs.
Commenters also requested that the Treasury Department develop a formal or informal process, such as a hotline, for providing interpretive guidance or advisory opinions on specific transactions. Some commenters requested this process be established before the rule is effective. One commenter pointed to similar practices by other components of the Treasury Department as well as other departments and agencies that administer national security-related regulatory programs, such as the Departments of Commerce, Justice, and State, as well as the SEC.
Two commenters requested the Treasury Department periodically publish non-confidential or anonymized information in its possession about specific transactions to minimize program compliance costs, as well as unintentional violations.
One commenter requested that the Treasury Department publish guidance on
The Treasury Department recognizes that the Final Rule imposes new requirements about which further information may be helpful. To assist
At this time, the Treasury Department does not expect to establish an advisory opinion process to allow parties to request determinations of whether a particular transaction is
A number of commenters suggested that certain requirements in the Proposed Rule would affect the international competitiveness of U.S. investors, asset managers, and businesses in certain industries. Some commenters focused on the additional due diligence obligations with which U.S. investors must comply. Others emphasized the need for a multilateral approach so that foreign competitors are subject to similar requirements. Other commenters suggested that the proposed exception for transactions under § 850.501(f)(1) involving persons of a country or territory outside the United States designated by the Secretary after taking into account whether the country or territory is addressing national security concerns posed by outbound investment, would convey an unfair advantage on a foreign competitor unless the foreign program is equally stringent. Two commenters argued that limitations on U.S. investment in the semiconductor industry in a
The Treasury Department recognizes that the obligations created by the Final Rule will impose certain costs and
Regarding the concern over potential designations under § 850.501(g)(1), the Treasury Department notes that any exceptions created under that section would ultimately benefit
Several commenters shared their views on possible unintended consequences of the Proposed Rule, including general concerns around the breadth of the rule impacting U.S. and other companies' ability to conduct global business, as well as concerns about impacts to U.S. competitiveness, innovation, and national security.
One commenter expressed concern about expansion of the scope of countries listed as “countries of concern” given past implementation of certain national security-related laws and regulations, citing the 2018 imposition of tariffs on steel imports under Section 232 of the Trade Expansion Act of 1962 (19 U.S.C. 1862) as an example.
Another commenter suggested that U.S. venture capital firms could become uncompetitive for deals involving a
Some commenters suggested that the Proposed Rule could impact investment activities of third-country entities and thereby increase the instability of global supply chains or impact U.S. investors' ability to do business in the broader Asia region. One commenter requested that the Treasury Department ensure the rule does not disrupt the day-to-day management of global diversified portfolios invested in publicly traded securities.
The Treasury Department notes that the Final Rule seeks to address the national security threat described in the Outbound Order while minimizing unintended consequences. Accordingly, the Final Rule includes tailored definitions and descriptions of terms and elements to appropriately scope coverage and facilitate compliance by
The Treasury Department notes concerns around the practical effects of due diligence requirements associated with the Final Rule, especially as they relate to the timelines of private investments. As noted above, the Treasury Department intends to publish compliance resources and information on its Outbound Investment Security Program website to assist with implementing the Final Rule. In addition, as required by the Outbound Order, the Secretary of the Treasury, in consultation with the Secretary of Commerce and, as appropriate, the heads of other relevant agencies, will assess, within one year of the effective date of the Final Rule and periodically thereafter, whether to amend the rule.
The Treasury Department received several comments related to U.S. Government engagement with foreign countries and territories on the Outbound Order and requirements described in the Proposed Rule. Several commenters expressed support for substantive engagement between the U.S. Government and foreign countries on the Outbound Order and similar programs being considered by foreign jurisdictions. One commenter recommended that the U.S. Government work with foreign partners to identify regulatory options for outbound investment screening reviews that are easier to implement and administer and are tailored to the particular investment relationship that these countries have with a
Some commenters called out specific foreign jurisdictions with whom to prioritize coordination, including the European Union and South Korea. One commenter recommended that the Treasury Department engage with PRC commercial regulators to increase awareness of the Proposed Rule's objectives and compliance requirements for PRC businesses, in order to assist U.S. firms that are conducting due diligence and facilitate implementation of the Proposed Rule.
Other commenters noted potential outcomes they believe could arise if the U.S. Government does not engage substantively with foreign partners and align the approach in the Final Rule with those taken by foreign partners. These include the risk of backfilling capital and associated benefits from other economies, as well as disadvantaging U.S. firms and harming U.S. competitiveness.
As noted in the Proposed Rule, the Treasury Department recognizes the importance of working with our partners and allies as they explore options to address national security concerns related to outbound investment. The Treasury Department concurs with commenters that the goals of the Outbound Order and Final Rule will be enhanced if foreign allies and partners develop similar mechanisms. The Treasury Department, along with other relevant U.S. Government departments and agencies, such as the Departments of Commerce and State, will continue to collaborate with foreign partners to advance coordination on risks and policy responses related to outbound investment. In addition, to further U.S. Government efforts to encourage partners and allies to address risks related to outbound investment, the Final Rule includes as an
A few commenters requested delaying the effective date of the rule to ensure
The Treasury Department has determined to make the effective date of the Final Rule January 2, 2025. This provides time for
Some commenters discussed how the rule should interact with existing regulatory regimes. One commenter suggested that the rule should anticipate transactions that are subject to both the Outbound Order and CFIUS jurisdiction. They requested the Treasury Department exclude transactions that have been or will be notified to CFIUS from the jurisdiction of the Final Rule.
This commenter misinterprets the role of CFIUS in the context of overlapping authorities. CFIUS was designed to be a tool of last resort, only to be used when other authorities do not apply to a particular transaction. Applying CFIUS jurisdiction to a transaction prior to determining whether a separate authority may cover the transaction would reverse this process. The Treasury Department makes no change to the Final Rule in response to this comment.
A few commenters suggested areas where provisions of the Final Rule could be tied more closely to existing authorities. One commenter suggested tying
While many of the due diligence expectations set forth in the Final Rule were designed to overlap with existing diligence provisions in other laws and regulations, the Treasury Department recognizes that areas of differentiation may impose some additional burden on market participants. The Treasury Department intends the Final Rule to increase the U.S. Government's visibility into
This rulemaking pertains to a foreign affairs function of the United States and therefore is not subject to the rulemaking requirements of the Administrative Procedure Act (APA) (5 U.S.C. 553), which exempts a rulemaking from notice and comment requirements “to the extent there is involved . . . a military or foreign affairs function of the United States” (5 U.S.C. 553(a)(1)). As required by the Outbound Order, the Final Rule is being issued to assist in addressing the national emergency declared by the President with respect to the threat posed to U.S. national security by
Although the Final Rule is not subject to the notice and comment requirements of the APA, the Treasury Department is engaged in notice and comment rulemaking for the Final Rule, consistent with section 1(a) of the Outbound Order. In addition, the Final Rule was designated as significant under Executive Order 12866, as amended, and was reviewed by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB). The Treasury Department has undertaken an analysis of the anticipated costs and benefits of the Final Rule. Several commenters to the Proposed Rule discussed the potential burden associated with the Proposed Rule. The Treasury Department, after taking into account these comments, conducted an analysis of the relative costs and benefits of the Final Rule. For purposes of this analysis, the Treasury Department assessed the costs and benefits of the Final Rule relative to a no-action baseline reflecting
In addition, this section includes the required assessments of the reporting and recordkeeping burdens under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
Executive Orders 12866, 13563, and 14094 direct agencies to assess the costs and benefits of available regulatory alternatives for certain types of rulemaking in certain circumstances and, if regulation is necessary, to select regulatory approaches that maximize net benefits. The Treasury Department has conducted an assessment of the costs and benefits of the Final Rule, as well as the costs and benefits of available regulatory alternatives. That cost-benefit analysis, along with a summary of comments to the cost-benefit analysis included in the Proposed Rule, is below.
As noted above in section I, the Outbound Order directs the Secretary to establish a program to prohibit
As described above in section II, this Final Rule is consistent with the President's mandate in the Outbound Order and prescribes procedures and obligations governing the (1) prohibition of certain types of investment by
The Final Rule will cover a defined set of transactions such as certain acquisitions of equity interests (
Several commenters provided comments on the initial cost analysis, while another commenter provided additional data related to outbound and inbound investments involving the PRC.
Multiple commenters argued that the initial cost analysis underestimated the costs associated with the rule. In making this argument, a few commenters noted that the initial cost analysis underestimated the scope of affected transactions. One commenter noted that the Treasury Department's cost estimate relied on analysis of equity investments made by U.S.-based investors in the semiconductor, AI, and quantum science sectors of the PRC, but that the rule could apply to a range of investment and corporate activities beyond equity investments. It also noted that the rule could affect investment in countries other than the PRC because of the scope of the definition of
Regarding the number of transactions used for the initial cost analysis, as the Treasury Department noted in the Proposed Rule, precise data that matches the scope of potential
One commenter argued that the estimated costs were too low because they did not take into account the costs of due diligence in the business sector more broadly. The commenter stated that in each case the party undertaking the transaction will be required to determine whether a
With regard to the need to engage in due diligence and maintain records for transactions that are not covered to demonstrate the lack of
Another commenter argued that the initial analysis understated the relevant costs because it omitted certain indirect costs. In particular, the commenter stated that while the initial analysis examined indirect costs such as foregone returns on investment incurred for
In response to this comment, the Treasury Department declines to add additional indirect costs associated with other
Finally, a commenter noted that the Treasury Department should review how the rule will affect U.S. investments in sectors implicated by the definitions of
The primary direct costs to the public associated with the Final Rule relate to (1) understanding the Final Rule; (2) conducting the transaction-specific diligence that would be needed for a
The Final Rule will apply to all
The Treasury Department also acknowledges that some
For purposes of the Final Rule cost analysis, the Treasury Department tripled the averages from the available data to account for the likely underrepresentation of potentially relevant transactions. Thus, the Treasury Department's analysis is based
To derive an estimate for the costs related to the Final Rule, the Treasury Department first estimated the associated labor costs related to interpreting and applying the Final Rule. The Treasury Department expects that individuals and entities reviewing the Final Rule and engaging in potentially relevant transactions will engage on their own and through their own employees as well as hire lawyers or advisors from outside firms.
For a low-end estimate, the Treasury Department relied on a figure from the Bureau of Labor Statistics (BLS), which reports the mean hourly wage for Standard Occupational Classification System Code (SOC Code) 231011—Lawyers to be $84.84 per hour and SOC Code 111021—General and Operations Managers to be $62.18 per hour.
For a high-end estimate, the Treasury Department acknowledges that the hourly rate billed for a lawyer performing the relevant type of work at a private firm may be significantly higher than the average hourly wage of a lawyer from the BLS figure. The global data and business intelligence platform Statista reports that the average hourly attorney billing rate in Washington, DC in 2023 was $392.
Based on the above assumptions and estimates of affected entities, number of transactions, and labor costs, the Treasury Department has estimated the annual time and cost that would be spent by affected entities in understanding the Final Rule. While recognizing that the extent of this diligence will necessarily vary from transaction to transaction, the Treasury Department arrived at the below estimates for purposes of this regulatory analysis.
The range of estimated aggregate annual costs for understanding the Final Rule begins at $702,780 on the low end and goes up to $922,200 on the high end. This is based on the estimate of an average time burden to be 10 total person hours per transaction for understanding the Final Rule. As such, 10 total person hours per transaction multiplied by 318 annual transactions and the low-end hourly labor cost range and high-end hourly labor cost range described above, respectively, result in the total cost range for understanding the Final Rule.
Based on the above assumptions and estimates of affected entities, number of transactions and labor costs, the Treasury Department has estimated the annual time and cost that would be spent by affected entities on conducting additional transactional diligence with respect to this Final Rule. These economic estimates should in no way be construed as relevant to the reasonableness of the inquiry a party would pursue in light of the particular facts and circumstances of a transaction and the requirements of the Proposed Rule. While recognizing that the extent of this diligence will necessarily vary from transaction to transaction, the Treasury Department arrived at the below estimates for purposes of this regulatory analysis.
The Treasury Department recognizes that most investment transactions, regardless of whether the investment is potentially subject to this Final Rule, involve some level of review, diligence, assessment, and recordkeeping by the investor. And, for some transactions and investors, the level of information collection, retention, and diligence necessary to comply with the Final Rule may not give rise to any costs beyond what would be incurred in the absence of the Final Rule. This conclusion is reached by focusing on the nature of the information required for a notification, which consists of data typically gathered or available in the process of making an investment. This includes, for example, the proposed information requirements regarding transaction party identifying information as well as the commercial rationale, transaction structure, financial details, and
The Treasury Department assesses that it is reasonable in some cases to assume that customary transactional due diligence would involve the collection and review of this required information, meaning that only incremental costs would be incurred for the review of the information from the perspective of ensuring compliance with the Final Rule. While the notification requirement also includes (1) information regarding
The range of estimated annual incremental cost for conducting due
For the low end of this range, it is reasonable to anticipate that some investors, having spent resources learning about the Final Rule, as discussed above, will be able to quickly collect and assess the information needed to determine whether a potential transaction would be a
The Final Rule requires the submission of information to the Treasury Department for
The Treasury Department expects that of the universe of potentially
The estimated annual cost range for time spent submitting information would be $3,513,900 to $4,611,000. This estimate assumes 50 person hours per transaction for preparing and submitting a notification through an online portal, combined with the number of transactions per year (318) and the hourly labor cost range described above—$221 to $290. As discussed above, this number reflects the high-end estimate, since this analysis assumes that every potentially relevant transaction would result in a notification.
For purposes of this analysis, the Treasury Department estimated only the total annual costs of preparing and submitting a notification under § 850.404 of the Final Rule. The Treasury Department anticipates that the time and cost behind preparing and submitting a post-transaction notice, notice of any material omission or inaccuracy in any previous representation, statement, or certification, or responding to agency inquiries may be comparable to the costs of preparing and submitting a notification. Likewise, where a
Based on the direct cost estimates above, the total annual direct costs associated with complying with the Final Rule can be expected to have a range of between $4,216,680 and $9,222,000 and the total annual time burden will be approximately 31,800 person hours.
With respect to
Any attempt to quantify this cost would be speculative and difficult to assess in any specificity due to individual decision-making, opportunities available, and market conditions. In addition, while the Final Rule may have an economic impact on investment targets that are
Administering the Final Rule will also entail costs to the U.S. Government. Such costs will include information technology (IT) development and ongoing annual maintenance, as well as processing electronic notifications. The Treasury Department estimates that initial IT development costs will be between $4 million and $8 million with an additional $2 million to $3 million required to maintain the systems and the underlying technology being leveraged to support the capabilities. The Treasury Department and other relevant agencies, including the Department of Commerce, may incur additional costs besides those estimated above. These include other responsibilities related to the implementation of the Final Rule such as analyzing notifications submitted as well as complying with the reporting requirements under the Outbound Order. Furthermore, costs may be associated with efforts to promote compliance with the notification requirement and prohibition, potentially including education on the requirements, provision of information and FAQs, and conducting stakeholder outreach. The Treasury Department does not currently have specific estimates for these costs but estimates that there will be personnel costs of less than $2 million associated with the Final Rule in Fiscal Year 2024 with additional costs for ongoing outreach and enforcement thereafter.
The Treasury Department and other U.S. Government agencies may also incur costs in enforcing compliance with the Final Rule. The Treasury Department does not currently have estimates for these costs, and they are not included in the estimates above.
The Treasury Department plans to monitor compliance with the Final Rule by leveraging a variety of data sources, both internal and external. If the external data sources include third-party commercial data, the Treasury Department assesses that the cost associated with accessing these databases will be modest and incremental, given that the Treasury Department regularly maintains access to such databases in the course of other work but may need to request additional licenses for employees. After identifying an instance of apparent non-compliance, the Treasury Department may initiate outreach to the involved entity, work with law enforcement to investigate the apparent non-compliance, or initiate an enforcement action. The Treasury Department's enforcement of the Final Rule will also involve coordination with law enforcement agencies. These law enforcement agencies may also incur costs (time and resources) while conducting investigations into potential non-compliance.
The President found in the Outbound Order that the advancement by
The Final Rule is designed to complement existing tools and effectively address the threat to the national security of the United States described in the Outbound Order. The benefit of protecting national security is difficult to quantify. Furthermore, the notification component of the Final Rule is intended to provide key information that the Treasury Department can use to better inform the development and implementation of the Final Rule. These notifications will increase the U.S. Government's visibility into transactions by
The Outbound Order requires the Secretary to issue implementing regulations subject to public notice and comment. As a result, the Treasury Department did not have the discretion to refrain from promulgating the Final Rule or to promulgate it without notice and comment. However, the Treasury Department considered different approaches to the Final Rule that would be available under the Outbound Order. Specifically, the Treasury Department considered the following potential alternatives to the Final Rule:
•
•
The Treasury Department intends the Final Rule to provide a
The collections of information contained in this Final Rule have been submitted to OMB for review in accordance with the PRA under control number 1505-0282.
The Final Rule will require a
The Final Rule will also require any
The collections of information described will be used by the Treasury
The Treasury Department used the methodology described in the previous section to estimate the total annual reporting and recordkeeping burden of the information collections in this Final Rule. The Treasury Department estimates that the annual hourly burden will be up to 28,620 hours. This annual total is based on the Treasury Department's assumption that: (1) 180 entities per year will respond to the information collections in this Final Rule and each entity will submit an average of 1.77 notifications annually, meaning these respondents will file a total 318 responses to the information collections annually; and (2) each respondent will spend an estimated 50 to 90 person hours per response. The Treasury Department estimates that the annual cost burden associated with the information collections and recordkeeping in the Final Rule will range between $3,513,900 and $8,299,800.
Under the PRA, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the OMB.
The RFA requires an agency either to provide a final regulatory flexibility analysis with a final rule or certify that the final rule would not have a significant economic impact on a substantial number of small entities. The Treasury Department certified that the Proposed Rule would not have a significant economic impact on a substantial number of small entities within the meaning of section 601(6) of the RFA. The Treasury Department did not receive any comments from the public or the Chief Counsel for the Office of Advocacy of the Small Business Administration (SBA) on this certification.
The Treasury Department is hereby certifying that the Final Rule will not have a significant economic impact on a substantial number of small entities within the meaning of section 601(6) of the RFA.
The Final Rule may impact any
The Treasury Department expects the Final Rule to have a negligible baseline impact on small businesses because the Final Rule's obligations on
As an example, the SBA's Table of Size Standards with respect to North American Industry Classification System (NAICS) U.S. Industry Sector 52 “Finance and Insurance” defines a small business in this sector by dollar value of assets or revenue rather than by number of employees. As discussed below, the Treasury Department believes that the relevant SBA thresholds are too low to capture the type of U.S. investor likely to actively invest in an entity that engages in the identified activities related to technologies and products in the semiconductors and microelectronics, quantum information technologies, and artificial intelligence sectors that are critical for the military, intelligence, surveillance, or cyber-enabled capabilities of a
Extrapolating from this data, the average 2023 revenue per firm in this category would have been $231.5 million. In fact, the total number of potential investors subject to the regulation is likely limited to a small set of relatively large and sophisticated investors. As discussed above, the Treasury Department considered PitchBook Data from approximately 2021 through 2023. Notably, the most common type of U.S. based investors in this survey were identified by PitchBook Data as a venture capital business, corporation, private equity or buyout firm, or comparable investor types.
Given the applications of technologies and products in these sectors, the Treasury Department believes investments into these sectors involving
In the unlikely event that a small entity is subject to the requirements of the Final Rule, such entity will be expected to incur the costs described in the cost benefit analysis above. For submission of notifications, the Treasury Department has endeavored to develop information gathering procedures that minimize the burden on
Section 202 of UMRA requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a State, local, or Tribal government, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. The Final Rule does not include any Federal mandate that may result in expenditures by State, local, or Tribal governments, or by the private sector in excess of that threshold.
Executive Order 13132 prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on State and local governments, and is not required by statute, or preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the order. The Final Rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of Executive Order 13132.
Pursuant to the Congressional Review Act (5 U.S.C. 801
Administrative practice and procedure, Artificial intelligence, Business and industry, Confidential business information, Electronic filing, Executive orders, Foreign persons, Hong Kong, Holding companies, Investigations, Investments, Investment companies, Microelectronics, National defense, National security, Macau, Penalties, People's Republic of China, Quantum information technologies, Reporting and recordkeeping requirements, Science and technology, Securities, Semiconductors, U.S. investments abroad.
50 U.S.C. 1701
(a) This part implements Executive Order 14105 of August 9, 2023, “Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern” (the Order), directing the Secretary of the Treasury (the Secretary), in consultation with the Secretary of Commerce and, as appropriate, the heads of other relevant executive departments and agencies, to issue, subject to public notice and comment, regulations that require U.S. persons to provide notification of information relative to certain transactions involving covered foreign persons and that prohibit U.S. persons from engaging in certain other transactions involving covered foreign persons.
(b) The regulations identify certain types of transactions that are
(c) The regulations identify categories of
(d) The regulations identify categories of
(e) Pursuant to the Order, the Secretary shall, as appropriate:
(1) Communicate with the Congress and the public with respect to the implementation of the Order;
(2) Consult with the Secretary of Commerce on industry engagement and analysis of notifiable transactions;
(3) Consult with the Secretary of State, the Secretary of Defense, the Secretary of Commerce, the Secretary of Energy, and the Director of National Intelligence on the implications for military, intelligence, surveillance, or cyber-enabled capabilities of covered national security technologies and products in the Order and potential covered national security technologies and products;
(4) Engage, together with the Secretary of State and the Secretary of Commerce, with allies and partners regarding the national security risks posed by countries of concern advancing covered national security technologies and products;
(5) Consult with the Secretary of State on foreign policy considerations related to the implementation of the Order, including but not limited to the issuance and amendment of regulations; and
(6) Investigate, in consultation with the heads of relevant agencies, as appropriate, violations of the Order or the regulations in this part and pursue available civil penalties for such violations.
Nothing in this part shall be construed as altering or affecting any other authority, process, regulation, investigation, enforcement measure, license, authorization, or review provided by or established under any other provision of Federal law, including the International Emergency Economic Powers Act (50 U.S.C. 1701
(a) As used in this part, the term “including” (or variations such as “include”) means “including but not limited to.”
(b) Any term in the singular includes the plural, and the plural includes the singular, if such use would be appropriate.
(c) Section headings are included for convenience of reference only and shall not affect the interpretation of this part.
(a) Certain provisions of this part apply only if a U.S. person
(b) Such assessment as to whether, at the time of a given transaction, a U.S. person has or had knowledge of a given fact or circumstance will be made based on information a U.S. person had or could have had through a reasonable and diligent inquiry. A U.S. person that has failed to conduct a reasonable and diligent inquiry by the time of a given transaction may be assessed to have had reason to know of a given fact or circumstance, including facts or circumstances that would cause the transaction to be a covered transaction.
(c) In assessing whether a U.S. person has undertaken such a reasonable and diligent inquiry, the Department of the Treasury's considerations will include the following, as applicable, among others that the Department of the Treasury deems relevant, with respect to a particular transaction:
(1) The inquiry a U.S. person has made regarding an investment target or other relevant transaction counterparty (such as a joint venture partner), including questions asked of the investment target or relevant
(2) The contractual representations or warranties the U.S. person has obtained or attempted to obtain from the investment target or other relevant transaction counterparty (such as a joint venture partner) with respect to the determination of a transaction's status as a covered transaction and status of an investment target or other relevant transaction counterparty (such as a joint venture partner) as a covered foreign person;
(3) The efforts by the U.S. person as of the time of the transaction to obtain and consider available non-public information relevant to the determination of a transaction's status as a covered transaction and the status of an investment target or other relevant transaction counterparty (such as a joint venture partner) as a covered foreign person;
(4) Available public information, the efforts undertaken by the U.S. person to obtain and consider such information, and the degree to which other information available to the U.S. person as of the time of the transaction is consistent or inconsistent with such publicly available information;
(5) Whether the U.S. person purposefully avoided learning or seeking relevant information;
(6) The presence or absence of warning signs, which may include evasive responses or non-responses from an investment target or other relevant transaction counterparty (such as a joint venture partner) to questions or a refusal to provide information, contractual representations, or warranties; and
(7) The use of available public and commercial databases to identify and verify relevant information of an investment target or other relevant transaction counterparty (such as a joint venture partner).
(d) An assessment of whether a U.S. person has undertaken a reasonable and diligent inquiry shall be based on a consideration of the totality of relevant facts and circumstances.
The term
The term
(a) A machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments—
(1) Uses data inputs to perceive real and virtual environments;
(2) Abstracts such perceptions into models through automated or algorithmic statistical analysis; and
(3) Uses model inference to make a classification, prediction, recommendation, or decision.
(b) Any data system, software, hardware, application, tool, or utility that operates in whole or in part using a system described in paragraph (a) of this section.
(a) The term
(1) Fully complies with the regulations in this part; and
(2) Is accurate and complete in all material respects to the best knowledge of the person filing a notification or other information.
(b) For purposes of this section, a duly authorized designee is:
(1) In the case of a partnership, any general partner thereof;
(2) In the case of a corporation, any officer thereof; and
(3) In the case of any entity lacking partners and officers, any individual within the organization exercising executive functions similar to those of a general partner of a partnership or an officer of a corporation or otherwise authorized by the board of directors or equivalent to provide such certification.
(c) In each case described in paragraphs (b)(1) through (3) of this section, such designee must possess actual authority to make the certification on behalf of the person filing a notification or other information.
A template for certifications may be found at the Outbound Investment Security Program section of the Department of the Treasury website.
The term
(a) With respect to a covered transaction other than under § 850.210(a)(6), the earliest date upon which any interest, asset, property, or right is conveyed, assigned, delivered, or otherwise transferred to a U.S. person, or as applicable, its controlled foreign entity; or
(b) With respect to a covered transaction under § 850.210(a)(6), the earliest date upon which any interest, asset, property, or right in the relevant covered foreign person is conveyed, assigned, delivered, or otherwise transferred to the applicable fund.
The term
(a) The term
(b) For purposes of this term, the following rules shall apply in determining whether an entity is a parent of another entity in a tiered ownership structure:
(1) Where the relationship between an entity and another entity is that of parent and subsidiary, the holdings of voting interest or voting power of the board, as applicable, of a subsidiary shall be fully attributed to the parent.
(2) Where the relationship between an entity and another entity is not that of parent and subsidiary (
(3) Where the circumstances in paragraphs (b)(1) and (2) of this section apply (
The term
The term
(a) The term
(1) A person of a country of concern that engages in a covered activity; or
(2) A person that directly or indirectly holds a board seat on, a voting or equity interest (other than through securities or interests that would satisfy the conditions in § 850.501(a) if held by a U.S. person) in, or any contractual power to direct or cause the direction of the management or policies of any person or persons described in paragraph (a)(1) of this section from or through which it:
(i) Derives more than 50 percent of its revenue individually, or as aggregated across such persons from each of which it derives at least $50,000 (or equivalent) of its revenue, on an annual basis;
(ii) Derives more than 50 percent of its net income individually, or as aggregated across such persons from each of which it derives at least $50,000 (or equivalent) of its net income, on an annual basis;
(iii) Incurs more than 50 percent of its capital expenditure individually, or as aggregated across such persons from each of which it incurs at least $50,000 (or equivalent) of its capital expenditure, on an annual basis; or
(iv) Incurs more than 50 percent of its operating expenses individually, or as aggregated across such persons from each of which it incurs at least $50,000 (or equivalent) of its operating expenses, on an annual basis.
(3) With respect to a covered transaction described in § 850.210(a)(5), the person of a country of concern that participates in the joint venture is deemed to be a covered foreign person by virtue of its participation in the joint venture.
(b) For purposes of paragraph (a)(2) of this section:
(1) Calculations shall be based on an audited financial statement from the most recent year. If an audited financial statement is not available, the most recent unaudited financial statement shall be used instead. If no financial statement is available, an independent appraisal shall be used instead. If no independent appraisal is available, a good-faith estimate shall be used instead.
(2) Where an amount is not denominated in U.S. dollars, the U.S. dollar equivalent shall be determined based on the most recent published rate of exchange available on the Department of the Treasury's website.
References in this section to revenue, net income, capital expenditure, or operating expenses refer to overall revenue, net income, capital expenditure, or operating expenses, as applicable, without subtracting amounts attributable to persons described in paragraph (a)(1) of this section of less than $50,000 (or equivalent).
(a) The term
(1) Acquisition of an equity interest or contingent equity interest in a person that the U.S. person knows at the time of the acquisition is a covered foreign person;
(2) Provision of a loan or a similar debt financing arrangement to a person that the U.S. person knows at the time of the provision is a covered foreign person, where such debt financing affords or will afford the U.S. person an interest in profits of the covered foreign person, the right to appoint members of the board of directors (or equivalent) of the covered foreign person, or other comparable financial or governance rights characteristic of an equity investment but not typical of a loan;
(3) Conversion of a contingent equity interest into an equity interest in a person that the U.S. person knows at the time of the conversion is a covered foreign person, where the contingent equity interest was acquired by the U.S. person on or after January 2, 2025;
(4) Acquisition, leasing, or other development of operations, land, property, or other assets in a country of concern that the U.S. person knows at the time of such acquisition, leasing, or other development will result in, or that the U.S. person plans to result in:
(i) The establishment of a covered foreign person; or
(ii) The engagement of a person of a country of concern in a covered activity;
(5) Entrance into a joint venture, wherever located, that is formed with a person of a country of concern, and that the subject U.S. person knows at the time of entrance into the joint venture that the joint venture will engage, or plans to engage, in a covered activity; or
(6) Acquisition of a limited partner or equivalent interest in a venture capital fund, private equity fund, fund of funds, or other pooled investment fund (in each case where the fund is not a U.S. person) that a U.S. person knows at the time of the acquisition likely will invest in a person of a country of concern that is in the semiconductors and microelectronics, quantum information technologies, or artificial intelligence sectors, and such fund undertakes a transaction that would be a covered transaction if undertaken by a U.S. person.
(b) Notwithstanding paragraph (a) of this section, a transaction is not a covered transaction if it is:
(1) An excepted transaction as set forth in § 850.501; or
(2) For the conduct of the official business of the United States Government by employees, grantees, or contractors thereof.
(c) The acquisition of a contingent interest described in paragraph (a)(1) of this section may constitute a covered transaction, and the subsequent occurrence of a conversion event described in paragraph (a)(3) of this section may constitute a separate covered transaction. A U.S. person should assess each of the acquisition and the conversion to determine the applicability of this part.
An indirect covered transaction includes a U.S. person's use of an intermediary to engage in a transaction that would be a covered transaction if engaged in directly by a U.S. person. However, for purposes of paragraph (a)(1) of this section, a U.S. person is not considered to have acquired an indirect equity interest or contingent equity interest in a covered foreign person when the U.S. person acquires a limited partner or equivalent interest in a venture capital fund, private equity fund, fund of funds, or other pooled investment fund and that fund then acquires an equity interest or contingent equity interest in a covered foreign person. (A U.S. person's acquisition of a limited partner or equivalent interest in a non-U.S. person venture capital fund, private equity fund, fund of funds, or other pooled investment fund may, however, be a covered transaction under paragraph (a)(6) of this section.)
Neither the issuance of a secured loan or similar debt financing for which equity is pledged as collateral, nor the acquisition of such secured debt on the secondary market, is an acquisition of an equity interest. However, foreclosure on collateral where the debtholder takes possession of the pledged equity is an acquisition of an equity interest;
Except as used in § 850.210(a)(4), the term
The term
The term
The term
The term
Knowledge of a fact or circumstance (the term may be a variant, such as “know”) means:
(a) Actual knowledge that a fact or circumstance exists or is substantially certain to occur;
(b) An awareness of a high probability of a fact or circumstance's existence or future occurrence; or
(c) Reason to know of a fact or circumstance's existence.
See the discussion of the knowledge standard in § 850.104 for more information about how this term is applied in this part.
The term
(a) Designs any integrated circuit that is not described in § 850.224(c);
(b) Fabricates any integrated circuit that is not described in § 850.224(d);
(c) Packages any integrated circuit that is not described in § 850.224(e);
(d) Develops any AI system that is not described in § 850.224(j) or (k) and that is:
(1) Designed to be used for any military end use (
(2) Intended by the covered foreign person or joint venture to be used for any of the following:
(i) Cybersecurity applications;
(ii) Digital forensics tools;
(iii) Penetration testing tools; or
(iv) The control of robotic systems; or
(3) Trained using a quantity of computing power greater than 10^23 computational operations (
Consistent with section 3 of the Order, the Secretary, in consultation with the Secretary of Commerce, and, as appropriate, the heads of other relevant agencies, shall periodically assess whether the criterion described in paragraph (d)(3) of this section is serving to effectively address threats to the national security of the United States described in the Order and make updates, as appropriate, through public notice.
Consistent with the definition for develop at § 850.211, to develop an AI system defined at § 850.202(b) in a manner subject to these notification requirements, the relevant covered foreign person or joint venture must engage in the activities enumerated in § 850.211, such as design or substantive modification, with respect to the third-party AI model or machine-based system that is being used by a data system, software, hardware, application, tool, or utility to operate in whole or in part.
For purposes of paragraph (d) of this section, a person customizing, configuring, or fine-tuning a third-party AI model or machine-based system strictly for its own internal, non-commercial use (
The term
The term
(a) A person who or which directly or indirectly holds more than 50 percent of:
(1) The outstanding voting interest in the entity; or
(2) The voting power of the board of the entity;
(b) The general partner, managing member, or equivalent of the entity; or
(c) The investment adviser to any entity that is a pooled investment fund, with “investment adviser” as defined in the Investment Advisers Act of 1940 (15 U.S.C. 80b-2(a)(11)).
Any entity that meets the conditions of paragraph (a), (b), or (c) of this section with respect to another entity is the parent, even if the parent entity is an intermediate entity and not the ultimate parent.
The term
The term
(a) Any individual that:
(1) Is a citizen or permanent resident of a country of concern;
(2) Is not a U.S. citizen; and
(3) Is not a permanent resident of the United States;
(b) An entity with a principal place of business in, headquartered in, or incorporated in or otherwise organized under the laws of, a country of concern;
(c) The government of a country of concern, including any political subdivision, political party, agency, or instrumentality thereof; any person acting for or on behalf of the government of a country of concern; or any entity with respect to which the government of a country of concern holds individually or in the aggregate, directly or indirectly, 50 percent or more of the entity's outstanding voting interest, voting power of the board, or equity interest, or otherwise possesses the power to direct or cause the direction of the management and policies of such entity (whether through the ownership of voting securities, by contract, or otherwise);
(d) Any entity in which one or more persons identified in paragraph (a), (b), or (c) of this section, individually or in the aggregate, directly or indirectly,
(e) Any entity in which one or more persons identified in paragraph (d) of this section, individually or in the aggregate, directly or indirectly, holds at least 50 percent of any of the following interests of such entity: outstanding voting interest, voting power of the board, or equity interest.
The term
The term
The term
(a) Develops or produces any electronic design automation software for the design of integrated circuits or advanced packaging;
(b) Develops or produces any:
(1) Front-end semiconductor fabrication equipment designed for performing the volume fabrication of integrated circuits, including equipment used in the production stages from a blank wafer or substrate to a completed wafer or substrate (
(2) Equipment for performing volume advanced packaging; or
(3) Commodity, material, software, or technology designed exclusively for use in or with extreme ultraviolet lithography fabrication equipment.
(c) Designs any integrated circuit that meets or exceeds the performance parameters in Export Control Classification Number 3A090.a in supplement No. 1 to 15 CFR part 774, or integrated circuits designed for operation at or below 4.5 Kelvin;
(d) Fabricates any of the following:
(1) Logic integrated circuits using a non-planar transistor architecture or with a production technology node of 16/14 nanometers or less, including fully depleted silicon-on-insulator (FDSOI) integrated circuits;
(2) NOT-AND (NAND) memory integrated circuits with 128 layers or more;
(3) Dynamic random-access memory (DRAM) integrated circuits using a technology node of 18 nanometer half-pitch or less;
(4) Integrated circuits manufactured from a gallium-based compound semiconductor;
(5) Integrated circuits using graphene transistors or carbon nanotubes; or
(6) Integrated circuits designed for operation at or below 4.5 Kelvin;
(e) Packages any integrated circuit using advanced packaging techniques;
(f) Develops, installs, sells, or produces any supercomputer enabled by advanced integrated circuits that can provide a theoretical compute capacity of 100 or more double-precision (64-bit) petaflops or 200 or more single-precision (32-bit) petaflops of processing power within a 41,600 cubic foot or smaller envelope;
(g) Develops a quantum computer or produces any of the critical components required to produce a quantum computer such as a dilution refrigerator or two-stage pulse tube cryocooler;
(h) Develops or produces any quantum sensing platform designed for, or which the relevant covered foreign person intends to be used for, any military, government intelligence, or mass-surveillance end use;
(i) Develops or produces any quantum network or quantum communication system designed for, or which the relevant covered foreign person intends to be used for:
(1) Networking to scale up the capabilities of quantum computers, such as for the purposes of breaking or compromising encryption;
(2) Secure communications, such as quantum key distribution; or
(3) Any other application that has any military, government intelligence, or mass-surveillance end use;
(j) Develops any AI system that is designed to be exclusively used for, or which the relevant covered foreign person intends to be used for, any:
(1) Military end use (
(2) Government intelligence or mass-surveillance end use (
(k) Develops any AI system that is trained using a quantity of computing power greater than:
(1) 10^25 computational operations (
(2) 10^24 computational operations (
(l) Meets the conditions set forth in § 850.209(a)(2) because of its relationship to one or more covered foreign persons engaged in any covered activity described in any of paragraphs (a) through (k) of this section; or
(m) Engages in a covered activity, whether referenced in this section or § 850.217 and is:
(1) Included on the Bureau of Industry and Security's Entity List (15 CFR part 744, supplement no. 4);
(2) Included on the Bureau of Industry and Security's Military End User List (15 CFR part 744, supplement no. 7);
(3) Meets the definition of “Military Intelligence End-User” by the Bureau of Industry and Security in 15 CFR 744.22(f)(2);
(4) Included on the Department of the Treasury's list of Specially Designated Nationals and Blocked Persons (SDN List), or is an entity in which one or more individuals or entities included on the SDN List, individually or in the aggregate, directly or indirectly, own a 50 percent or greater interest;
(5) Included on the Department of the Treasury's list of Non-SDN Chinese Military-Industrial Complex Companies (NS-CMIC List); or
(6) Designated as a foreign terrorist organization by the Secretary of State under 8 U.S.C. 1189.
Consistent with section 3 of the Order, the Secretary, in consultation with the Secretary of Commerce and, as appropriate, the heads of other relevant agencies, shall periodically assess whether the criterion described in paragraph (k) of this section is serving to effectively address threats to the national security of the United States described in the Order and make updates, as appropriate, through public notice.
Consistent with the definition for develop at § 850.211, to develop an AI system defined at § 850.202(b) in a manner subject to these prohibition requirements, the relevant covered foreign person or joint venture must engage in the activities enumerated in § 850.211, such as design or substantive modification, with respect to the third-party AI model or machine-based system that is being used by a data system, software, hardware, application, tool, or utility to operate in whole or in part.
For purposes of paragraphs (j) and (k) of this section, a person customizing, configuring, or fine-tuning a third-party AI model or machine-based system strictly for its own internal, non-commercial use (
The term
The term
The term
The term
The term
A U.S. person may not engage in a prohibited transaction unless an exemption for that transaction has been granted under § 850.502.
(a) A U.S. person shall take all reasonable steps to prohibit and prevent any transaction by its controlled foreign entity that would be a prohibited transaction if engaged in by a U.S. person.
(b) If a controlled foreign entity engages in a transaction that would be a prohibited transaction if engaged in by a U.S. person, in determining whether the relevant U.S. person took all reasonable steps to prohibit and prevent such transaction, the Department of the Treasury will consider, among other factors, any of the following with respect to a U.S. person and its controlled foreign entity:
(1) The execution of agreements with respect to compliance with this part between the subject U.S. person and its controlled foreign entity;
(2) The existence and exercise of governance or shareholder rights by the U.S. person with respect to the controlled foreign entity, where applicable;
(3) The existence and implementation of periodic training and internal reporting requirements by the U.S. person and its controlled foreign entity with respect to compliance with this part;
(4) The implementation of appropriate and documented internal controls, including internal policies, procedures, or guidelines that are periodically reviewed internally, by the U.S. person and its controlled foreign entity; and
(5) Implementation of a documented testing and/or auditing process of internal policies, procedures, or guidelines.
Findings of violations of this section and decisions related to enforcement and penalties will be made based on a consideration of the totality of relevant facts and circumstances, including whether the U.S. person has taken the steps described in paragraph (b) of this section and whether such steps were reasonable in light of the relevant facts and circumstances.
(a) A U.S. person is prohibited from knowingly directing a transaction by a non-U.S. person that the U.S. person knows at the time of the transaction would be a prohibited transaction if engaged in by a U.S. person. For purposes of this section, a U.S. person “knowingly directs” a transaction when the U.S. person has authority, individually or as part of a group, to make or substantially participate in decisions on behalf of a non-U.S. person, and exercises that authority to direct, order, decide upon, or approve a transaction. Such authority exists when a U.S. person is an officer, director, or otherwise possesses executive responsibilities at a non-U.S. person.
(b) A U.S. person that has the authority described in paragraph (a) of this section and recuses themself from each of the following activities will not be considered to have exercised their authority to direct, order, decide upon, or approve a transaction:
(1) Participating in formal approval and decision-making processes related to the transaction, including making a recommendation;
(2) Reviewing, editing, commenting on, approving, and signing relevant transaction documents; and
(3) Engaging in negotiations with the investment target (or, as applicable, the relevant transaction counterparty, such as a joint venture partner).
A U.S. person that undertakes a notifiable transaction shall file a notification of that transaction with the Department of the Treasury pursuant to § 850.404.
A U.S. person shall file a notification with the Department of the Treasury pursuant to § 850.404 with respect to any transaction by a controlled foreign entity of that U.S. person that would be a notifiable transaction if engaged in by a U.S. person.
A U.S. person that acquires actual knowledge after the completion date of a transaction of a fact or circumstance such that the transaction would have been a covered transaction if such knowledge had been possessed by the relevant U.S. person at the time of the transaction shall promptly, and in no event later than 30 calendar days following the acquisition of such knowledge, submit a notification pursuant to § 850.404. This requirement applies regardless of whether the
A U.S. person's submission of a notification pursuant to this section shall not preclude a finding by the Department of the Treasury that as a factual matter the U.S. person had relevant knowledge of the transaction's status at the time of the transaction.
(a) A U.S. person that has an obligation under § 850.401, § 850.402, or § 850.403 shall file an electronic copy of the notification of the transaction with the Department of the Treasury including the information set out in § 850.405 and the certification referred to in § 850.203. The U.S. person shall follow the electronic filing instructions posted on the Department of the Treasury's Outbound Investment Security Program website. No communications or submissions other than those described in this section shall constitute the filing of a notification for purposes of this part.
(b) The Department of the Treasury may contact a U.S. person that has filed a notification with questions or document requests related to the transaction or compliance with this part. The U.S. person shall respond to any such questions or requests within the time frame and in the manner specified by the Department of the Treasury. Information and other documents provided by the U.S. person to the Department of the Treasury after the filing of the notification under this section shall be deemed part of the notification and shall be subject to the certification referred to in § 850.203.
(c) A U.S. person shall file a notification under § 850.401 or § 850.402 with the Department of the Treasury no later than 30 calendar days following the completion date of a notifiable transaction. A U.S. person shall file a notification required under § 850.403 with the Department of the Treasury no later than 30 calendar days after it acquires the knowledge referred to in § 850.403.
(d) If a U.S. person files a notification prior to the completion date of the notifiable transaction, the U.S. person shall update such notification no later than 30 calendar days following the completion date of the notifiable transaction if information in the original filing has materially changed.
(e) A U.S. person shall inform the Department of the Treasury in writing no later than 30 calendar days following the acquisition of previously unavailable information required under § 850.405.
While the Department of the Treasury may engage with the U.S. person following notification, it is also possible the U.S. person will receive no communication from the Department of the Treasury other than an electronic acknowledgment of receipt after notification is submitted.
(a) A U.S. person that has an obligation under this part to file a notification shall provide the information set forth in this section, which must be accurate and complete in all material respects, subject to paragraph (d) of this section.
(b) A notification shall provide, as applicable:
(1) The contact information of a representative of the U.S. person filing the notification who is available to communicate with the Department of the Treasury about the notification including such representative's name, title, email address, mailing address, phone number, and employer;
(2) A description of the U.S. person, including name, and as applicable, principal place of business and place of incorporation or legal organization, company address, website, and, if the U.S. person is an entity, such U.S. person's ultimate owner;
(3) A post-transaction organizational chart of the U.S. person that includes the name and principal place of business and place of incorporation or legal organization of the intermediate and ultimate parent entities of the U.S. person, identifies the U.S. person's relationship with any controlled foreign entity or entities of the U.S. person, and identifies the covered foreign person and other relevant persons involved in the transaction;
(4) A brief description of the commercial rationale for the transaction;
(5) A brief description of why the U.S. person has determined the transaction is a covered transaction that includes a discussion of the nature of the transaction, its structure, reference to the paragraph of § 850.210(a) that best describes the transaction type, and whether the notification is being submitted pursuant to § 850.401, § 850.402, or § 850.403.
(6) The status of the transaction, including the actual or expected completion date of the transaction;
(7) The total transaction value in U.S. dollars or U.S. dollar equivalent, an explanation of how the transaction value was determined, and a description of the consideration for the transaction (including cash, securities, other assets, and debt forgiveness);
(8) The aggregate equity interest, voting interest, board seats (or equivalent holdings) of the U.S. person and its affiliates in the covered foreign person (or in the joint venture, as applicable) following the completion date of the transaction, including a description of any agreements or commitments for future investment or options to make future investments in the covered foreign person (or joint venture);
(9) Information about the covered foreign person, including its name, and as applicable, principal place of business and place of incorporation or legal organization, company address, website, and if the covered foreign person is an entity, such covered foreign person's ultimate owner, and the full legal names and titles of each officer, director, and other member of management of the covered foreign person, and a post-transaction organizational chart of the covered foreign person that includes the name and principal place of business and place of incorporation or legal organization of the intermediate and ultimate parent entities of the covered foreign person;
(10) Identification and description of each of the covered activity or activities undertaken by the covered foreign person that makes the transaction a covered transaction, as well as a brief description of the known end use(s) and end user(s) of the covered foreign person's technology, products, or services;
(11) A statement describing the attributes that cause the entity to be a covered foreign person, and any other relevant information regarding the covered foreign person and covered activity or activities;
(12) If a transaction involves a covered activity identified in § 850.217(a), (b), or (c), identification of the technology node(s) at which any applicable product is produced; and
(13) If the notification is required under § 850.403:
(i) Identification of the fact or circumstance of which the U.S. person acquired knowledge post-transaction;
(ii) The date upon which the U.S. person acquired such knowledge;
(iii) A statement explaining why the U.S. person did not possess or obtain such knowledge at the time of the transaction; and
(iv) A description of any pre-transaction diligence undertaken by the U.S. person, including, as applicable, any steps described in § 850.104(c).
(c) The U.S. person shall maintain a copy of the notification filed and supporting documentation for a period of ten years from the date of the filing. Such supporting documentation shall
(d) If the U.S. person does not provide responses to the information required in paragraph (b) of this section, the U.S. person shall provide sufficient explanation for why the information is unavailable or otherwise cannot be obtained and explain the U.S. person's efforts to obtain such information. If such information subsequently becomes available, the U.S. person shall provide such information to the Department of the Treasury promptly, and no later than 30 calendar days following the availability of such information.
A person who has made any representation, statement, or certification subject to this part shall inform the Department of the Treasury in writing promptly, and in no event later than 30 calendar days after learning of a material omission or inaccuracy in such representation, statement, or certification.
A transaction that would be either a prohibited transaction or a notifiable transaction if engaged in by a U.S. person but for this section is not a prohibited transaction or a notifiable transaction, as applicable, if the conditions set forth in this section are met. In that case, the transaction is an excepted transaction. The following transactions are excepted transactions:
(a)(1) An investment by a U.S. person:
(i) In any publicly traded security, with “security” as defined in section 3(a)(10) of the Securities Exchange Act of 1934, as amended, at 15 U.S.C. 78c(a)(10), denominated in any currency, and that trades on a securities exchange or through the method of trading that is commonly referred to as “over-the-counter,” in any jurisdiction;
(ii) In a security issued by:
(A) Any “investment company” as defined in section 3(a)(1) of the Investment Company Act of 1940, as amended, at 15 U.S.C. 80a-3(a)(1), that is registered with the U.S. Securities and Exchange Commission, such as index funds, mutual funds, or exchange traded funds; or
(B) Any company that has elected to be regulated or is regulated as a business development company pursuant to section 54 of the Investment Company Act of 1940, as amended, at 15 U.S.C. 80a-53;
(iii) Made as a limited partner or equivalent in a venture capital fund, private equity fund, fund of funds, or other pooled investment fund other than as described in paragraph (a)(1)(ii) of this section where:
(A) The limited partner or equivalent's committed capital is not more than $2,000,000, aggregated across any investment and co-investment vehicles of the fund; or
(B) The limited partner or equivalent has secured a binding contractual assurance that its capital in the fund will not be used to engage in a transaction that would be a prohibited transaction or notifiable transaction, as applicable, if engaged in by a U.S. person; or
(iv) In a derivative, so long as such derivative does not confer the right to acquire equity, any rights associated with equity, or any assets in or of a covered foreign person.
(2) Notwithstanding paragraph (a)(1) of this section, an investment is not an excepted transaction if it affords the U.S. person rights beyond standard minority shareholder protections with respect to the covered foreign person. Such standard minority shareholder protections include:
(i) The power to prevent the sale or pledge of all or substantially all of the assets of an entity or a voluntary filing for bankruptcy or liquidation;
(ii) The power to prevent an entity from entering into contracts with majority investors or their affiliates;
(iii) The power to prevent an entity from guaranteeing the obligations of majority investors or their affiliates;
(iv) The right to purchase an additional interest in an entity to prevent the dilution of an investor's pro rata interest in that entity in the event that the entity issues additional instruments conveying interests in the entity;
(v) The power to prevent the change of existing legal rights or preferences of the particular class of stock held by minority investors, as provided in the relevant corporate documents governing such stock; and
(vi) The power to prevent the amendment of the Articles of Incorporation, constituent agreement, or other organizational documents of an entity with respect to the matters described in paragraphs (a)(2)(i) through (v) of this section;
(b) The acquisition by a U.S. person of equity or other interests in an entity held by one or more persons of a country of concern;
(1) The U.S. person is acquiring all equity or other interests in such entity held by all persons of a country of concern; and
(2) Following such acquisition, the entity does not constitute a covered foreign person;
(c) A transaction that, but for this paragraph, would be a covered transaction between a U.S. person and its controlled foreign entity that supports operations that are not covered activities or that maintains covered activities that the controlled foreign entity was engaged in prior to January 2, 2025;
(d) A transaction made after January 2, 2025, pursuant to a binding, uncalled capital commitment entered into before January 2, 2025;
(e) The acquisition of a voting interest in a covered foreign person by a U.S. person upon default or other condition involving a loan or a similar financing arrangement, where the loan was made by a syndicate of banks in a loan participation where the U.S. person lender(s) in the syndicate:
(1) Cannot on its own initiate any action vis-à-vis the debtor; and
(2) Is not the syndication agent;
(f) The receipt of employment compensation by an individual in the form of an award of equity or the grant of an option to purchase equity in a covered foreign person, or the exercise of such option; or
(g)(1) A transaction that is:
(i) With or involving a person of a country or territory outside of the United States designated by the Secretary, after taking into account whether the country or territory is addressing national security risks substantially similar to those described in the Order and related to outbound investment; and
(ii) Of a type for which the Secretary has determined that the related national security concerns are likely to be adequately addressed by measures taken or that may be taken by the government of the relevant country or territory.
(2) Prior to making a designation or determination under this paragraph (g), the Secretary shall consult with the Secretary of State, the Secretary of Commerce, and, as appropriate, the heads of other relevant agencies.
(3) The Secretary's designations and determinations under paragraph (g)(1) of this section shall be made available through public notice.
(4) The Secretary may rescind a designation or determination under
(a) The Secretary, in consultation with the Secretary of Commerce, the Secretary of State, and the heads of relevant agencies, as appropriate, may determine that a covered transaction is in the national interest of the United States and therefore is exempt from applicable provisions in subparts C and D of this part (excluding §§ 850.406, 850.603, and 850.604). Such a determination may be made following a request by a U.S. person on its own behalf or on behalf of its controlled foreign entity.
(b) Any determination pursuant to paragraph (a) of this section will be based on a consideration of the totality of the relevant facts and circumstances and may be informed by, among other considerations, the transaction's effect on critical U.S. supply chain needs; domestic production needs in the United States for projected national defense requirements; United States' technological leadership globally in areas affecting U.S. national security; and impact on U.S. national security if the U.S. person is prohibited from undertaking the transaction.
(c) A U.S. person seeking a national interest exemption shall submit relevant information to the Department of the Treasury regarding the transaction and shall articulate the basis for the request, including the U.S. person's analysis of the transaction's potential impact on the national interest of the United States and the certification referred to in § 850.203. Information and other documents submitted by the U.S. person to the Department of the Treasury under this section shall be deemed part of the national interest exemption request. The U.S. person shall follow the instructions posted on the Department of the Treasury's Outbound Investment Security Program website. No communications or submissions other than those described in this section shall constitute a request for a national interest exemption. The Department of the Treasury may request additional information that may include some or all of the information required under § 850.405.
(d) A determination that a covered transaction is exempt under this section may be subject to binding conditions.
(e) No determination pursuant to paragraph (a) of this section will be valid unless provided to the subject U.S. person in writing and signed by the Assistant Secretary or Deputy Assistant Secretary of the Treasury for Investment Security.
A process and related information for exemption requests will be made available on the Department of the Treasury's Outbound Investment Security Program website.
Conduct referred to in 50 U.S.C. 1702(b) shall not be regulated or prohibited, directly or indirectly, by this part.
The taking of any action prohibited by this part is a violation of this part.
Failure to take any action required by this part, and within the time frame and in the manner specified by this part, as applicable, is a violation of this part.
With respect to any information submission to or communication with the Department of the Treasury pursuant to any provision of this part, the making of any materially false or misleading representation, statement, or certification, or falsifying, concealing or omitting any material fact is a violation of this part.
(a) Any action on or after the effective date of this part that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this part is prohibited.
(b) Any conspiracy formed to violate the prohibitions set forth in this part is prohibited.
(a) Section 206 of IEEPA applies to any person subject to the jurisdiction of the United States who violates, attempts to violate, conspires to violate, or causes a violation of any order, regulation, or prohibition issued by or pursuant to the direction or authorization of the Secretary pursuant to this part or otherwise under IEEPA.
(1) A civil penalty may be imposed on any person who violates, attempts to violate, conspires to violate, or causes a violation of any order, regulation, or prohibition issued under IEEPA, including any provision of this part in an amount not to exceed the greater of:
(i) $250,000, as such amount is adjusted pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended (Pub. L. 101-410, 28 U.S.C. 2461 note); or
(ii) An amount that is twice the amount of the transaction that is the basis of the violation with respect to which the penalty is imposed.
(2) A person who willfully commits, willfully attempts to commit, willfully conspires to commit, or aids or abets in the commission of a violation, attempt to violate, conspiracy to violate, or causing of a violation of any order, regulation, or prohibition issued under IEEPA, including any provision of this part, shall, upon conviction, be fined not more than $1,000,000, or if a natural person, be imprisoned for not more than 20 years, or both.
(b) The Secretary may refer potential criminal violations of the Order, or of this part, to the Attorney General.
(c) The civil penalties provided for in IEEPA are subject to adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended (Pub. L. 101-410, 28 U.S.C. 2461 note). Notice of the maximum penalty which may be assessed under this section will be published in the
(d) The criminal penalties provided for in IEEPA are subject to adjustment pursuant to 18 U.S.C. 3571.
(e) The penalties available under this section are without prejudice to other penalties, civil or criminal, and forfeiture of property, available under other applicable law.
(f) Pursuant to 18 U.S.C. 1001, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry shall be fined under title 18, United States Code, or imprisoned not more than 5 years, or both.
The imposition of a monetary penalty under this part creates a debt due to the U.S. Government. The Department of the Treasury may take action to collect the penalty assessed if not paid. In addition or instead, the matter may be referred to the Department of Justice for appropriate action to recover the penalty.
(a) The Secretary, in consultation with the heads of relevant agencies, as appropriate, may take any action authorized under IEEPA to nullify, void, or otherwise compel the divestment of any prohibited transaction entered into after the effective date of this part.
(b) The Secretary may refer any action taken under paragraph (a) of this section to the Attorney General to seek appropriate relief to enforce such action.
(a) Any person who has engaged in conduct that may constitute a violation of this part may submit a voluntary self-disclosure of that conduct to the Department of the Treasury.
(b) In determining the appropriate response to any violation, the Department of the Treasury will consider the submission and the timeliness of any voluntary self-disclosure.
(c) In assessing the timeliness of a voluntary self-disclosure, the Department of the Treasury will consider whether it has learned of the conduct prior to the voluntary self-disclosure. The Department of the Treasury may consider disclosure of a violation to another government agency other than the Department of the Treasury as a voluntary self-disclosure based on a case-by-case assessment.
(d) Notwithstanding the foregoing, identification to the Department of the Treasury of conduct that may constitute a violation of this part may not be assessed to be a voluntary self-disclosure in one or more of the following circumstances:
(1) A third party has provided a prior disclosure to the Department of the Treasury of the conduct or similar conduct related to the same pattern or practice, regardless of whether the disclosing person knew of the third party's prior disclosure;
(2) The disclosure includes materially false or misleading information;
(3) The disclosure, when considered along with supplemental information timely provided by the disclosing person, is materially incomplete;
(4) The disclosure is not self-initiated, including when the disclosure results from a suggestion or order of a Federal or state agency or official;
(5) The disclosure is a response to an administrative subpoena or other inquiry from the Department of the Treasury or another government agency;
(6) The disclosure is made about the conduct of an entity by an individual in such entity without the authorization of such entity's senior management; or
(7) The filing is made pursuant to a required notification under this part, including § 850.403 or § 850.406.
(e) A voluntary self-disclosure to the Department of the Treasury must take the form of a written notice describing the conduct that may constitute a violation and each of the persons involved. A voluntary self-disclosure must include, or be followed within a reasonable period of time by, a report of sufficient detail to afford a complete understanding of the conduct that may constitute the violation. A person making a voluntary self-disclosure must respond in a timely manner to any follow-up inquiries by the Department of the Treasury.
(a) Except to the extent required by law or otherwise provided in paragraphs (b) through (d) of this section, information or documentary materials not otherwise publicly available that are submitted to the Department of the Treasury under this part shall not be disclosed to the public.
(b) Notwithstanding paragraph (a) of this section, except to the extent prohibited by law, the Department of the Treasury may disclose information or documentary materials that are not otherwise publicly available, subject to appropriate confidentiality and classification requirements, when such information or documentary materials are:
(1) Relevant to any judicial or administrative action or proceeding;
(2) Provided to Congress or to any duly authorized committee or subcommittee of Congress; or
(3) Provided to any domestic governmental entity, or to any foreign governmental entity of a United States partner or ally, where the information or documentary materials are important to the national security analysis or actions of such governmental entity or the Department of the Treasury.
(c) Notwithstanding paragraph (a) of this section, the Department of the Treasury may disclose to third parties information or documentary materials that are not otherwise publicly available when the person who submitted or filed the information or documentary materials has consented to its disclosure to such third parties.
(d) Notwithstanding paragraph (a) of this section, the Department of the Treasury may disclose information that is not already publicly available, when such disclosure of information is determined by the Secretary to be in the national interest. Any determination under this paragraph (d) may not be delegated below the level of the Assistant Secretary of the Treasury.
(e) The Department of the Treasury may use the information gathered pursuant to this part to fulfill its obligations under the Order, which may include publication of anonymized data.
All materials or information filed with the Department of the Treasury under this part shall be submitted in English. If supplementary or additional materials were originally written in a foreign language, they shall be submitted in their original language. Where English versions of those documents exist, they shall also be submitted.
Any action that the Secretary is authorized to take pursuant to the Order and any further executive orders relating to the national emergency declared in the Order may be taken by the Assistant Secretary of the Treasury for Investment Security or their designee or by any other person to whom the Secretary has delegated the authority so to act, as appropriate.
(a) Except as otherwise provided by law, and in consultation with the Secretary of Commerce and, as appropriate, the heads of other relevant agencies, the Secretary may amend, modify, or revoke provisions of this part at any time.
(b) Except as otherwise provided by law, any instructions, orders, forms, regulations, or rulings issued pursuant to this part may be amended, modified, or revoked at any time.
(c) Unless otherwise specifically provided, any amendment, modification, or revocation of any provision in or appendix to this part does not affect any act done or omitted, or any civil or criminal proceeding commenced or pending, prior to such amendment, modification, or
The provisions of this part are separate and severable from one another. If any of the provisions of this part, or the application thereof to any person or circumstance, is held to be invalid, such invalidity shall not affect other provisions or application of such provisions to other persons or circumstances that can be given effect without the invalid provision or application.
(a) Any person is required to furnish under oath, in the form of reports or otherwise, at any time as may be required by the Department of the Treasury, complete information regarding any act or transaction subject to the provisions of this part, regardless of whether such act or transaction is effected pursuant to a national interest exemption under § 850.502. Except as provided otherwise, the Department of the Treasury may, through any person or agency, conduct investigations, hold hearings, administer oaths, examine witnesses, receive evidence, take depositions, and require by subpoena the attendance and testimony of witnesses and the production of any books, contracts, letters, papers, and other hard copy or electronic documents relating to any matter under investigation, regardless of whether any report has been required or filed under this section.
(b) For purposes of paragraph (a) of this section, the term
(c) Persons providing documents to the Department of the Treasury pursuant to this section must do so in a usable format agreed upon by the Department of the Treasury.
Federal Trade Commission.
Final rule.
The Federal Trade Commission (“FTC” or “Commission”) issues final amendments to the Commission's trade regulation “Rule Concerning Use of Prenotification Negative Option Plans,” retitled the “Rule Concerning Recurring Subscriptions and Other Negative Option Programs” (“Rule,” “final Rule” or “Negative Option Rule”). The final Rule now applies to all negative option programs in any media. This document also contains the text of the final Rule, the Rule's Statement of Basis and Purpose (“SBP”), and a final regulatory analysis.
Relevant portions of the record of this proceeding, including this document, are available
Katherine Johnson, Attorney, (202) 326-2185,
The Commission commenced this proceeding because it had reason to believe unfair and deceptive negative option practices are widespread in the marketplace. Negative option programs can provide substantial benefits for sellers and consumers. However, consumers cannot realize these benefits when sellers make material misrepresentations to induce consumers to enroll in such programs, fail to provide important information, bill consumers without their consent, or make cancellation difficult or impossible. Unfair and deceptive negative option practices have been a persistent source of consumer harm for decades, saddling shoppers with recurring payments for products and services they never intended to purchase nor wanted to continue buying. In the past, the Commission sought to address these practices through individual law enforcement actions and a patchwork of laws and regulations. Nevertheless, problems persist, as demonstrated by both a steady stream of State and Federal law enforcement actions and thousands of consumer complaints each year. To address these practices, the Commission proposed amending the current Negative Option Rule to establish clear, enforceable performance-based requirements for all negative option features in all media. The Commission solicited comments first in an advance notice of proposed rulemaking (“ANPR”) and then on proposed amendments in a notice of proposed rulemaking (“NPRM”). The Commission designed these amendments to ensure consumers understand what they are purchasing and allow them to cancel their participation without undue burden.
Among other things, this final Rule (1) prohibits misrepresentations of any material fact made while marketing using negative option features; (2) requires sellers to provide important information prior to obtaining consumers' billing information and charging consumers; (3) requires sellers to obtain consumers' unambiguously affirmative consent to the negative option feature prior to charging them; and (4) requires sellers to provide consumers with simple cancellation mechanisms to immediately halt all recurring charges.
The Commission now promulgates a final Rule. Pursuant to 15 U.S.C. 57a(a)(1)(B), the Rule,
• to misrepresent any material fact made while marketing using a negative option feature (§ 425.3);
• to fail to clearly and conspicuously disclose material terms prior to obtaining a consumer's billing information in connection with a negative option feature (§ 425.4);
• to fail to obtain a consumer's express informed consent to the negative option feature before charging the consumer (§ 425.5); and
• to fail to provide a simple mechanism to cancel the negative option feature and immediately halt charges (§ 425.6).
Further, the Rule, consistent with the final sentence of 15 U.S.C. 57a(a)(1)(B) includes requirements prescribed for the purpose of preventing such acts or practices.
The final Rule differs from the proposed Rule in two significant ways. First, the proposed Rule would have required sellers to provide annual reminders to consumers of the negative option feature. Second, the proposed Rule would have prohibited sellers from forcing consumers to receive saves
Finally, in response to the comments, the Commission adds two definitions and two provisions to the final Rule for clarity. The final Rule explicitly defines the terms “material” and “interactive electronic medium” consistent with how they were defined and discussed in the NPRM. Additionally, the final Rule includes a severability provision and a provision allowing requests for exemptions from the final Rule consistent with the Commission's Rules of Practice.
The Commission promulgates the final Negative Option Rule, 16 CFR part 425 pursuant to section 18 of the FTC Act, 15 U.S.C. 57a, the Administrative Procedure Act (“APA”), 5 U.S.C. 533; and part 1, subpart B of the Commission's Rules of Practice, 16 CFR 1.7-1.20. Section 18 permits the Commission to promulgate, amend, and repeal trade regulation rules that define with specificity acts or practices that are unfair or deceptive within the meaning of section 5(a)(1) of the FTC Act, 15 U.S.C. 45(a)(1); and allows the Commission to prescribe requirements for the purpose of preventing these unfair or deceptive acts and practices.
Negative option programs come in a variety of forms, but all share a central feature: each contain a term or condition that allows a seller to interpret a customer's silence, or failure to take an
Prenotification plans are the only negative option practice currently covered by the Commission's current Negative Option Rule, originally promulgated in 1973. Under such plans (
Some negative option offers include upsell or bundled offers, where sellers use consumers' billing data to sell additional products from the same seller or pass consumers' billing data to a third party for their sales. An upsell occurs,
Importantly, negative option programs are distinct from other continuing agreements such as installment contracts. In an installment contract, consumers are obligated for the entire contractual period for the entire contract. A prime example of this type of transaction is a contract for purchasing a vehicle, which outlines terms, such as price, interest rate, and payment schedule. The contract thus allows the consumer to pay the purchase price of the vehicle over time. Consumers' failure to pay amounts due under an installment agreement may bring the total balance due, and may trigger halting performance, or provide the seller with other contractual rights.
A negative option, in contrast, merely determines whether a seller may continue to send, and charge for, goods or provide services without the consumer's further action. Notably, a contract could have both installment and negative option features. Take, for instance, a software license agreement. A consumer may purchase a software license for a year, in which the consumer is obligated for the entire year, payable monthly, to renew automatically at the conclusion of the year unless the consumer cancels the agreement.
Negative option programs are widespread in the marketplace and can provide substantial benefits for sellers and consumers. For businesses, the benefits of negative option marketing include “greater revenue predictability, customer base continuity, and the ability to better plan in advance.”
The Commission tried to address these practices through individual law enforcement cases and a patchwork of regulations (
The Commission first promulgated the Rule in 1973 pursuant to the FTC Act, 15 U.S.C. 41
Specifically, the Rule required prenotification plan sellers to disclose their plans' material terms clearly and conspicuously before consumers subscribe. To do so, it required sellers to disclose seven material terms: (1) how subscribers must notify the seller if they do not wish to purchase the selection; (2) any minimum purchase obligations; (3) the subscribers' right to cancel; (4) whether billing charges include postage and handling; (5) that subscribers have at least ten days to reject a selection; (6) that if any subscriber is not given ten days to reject a selection, the seller will credit the return of the selection and postage to return the selection, along with shipping and handling; and (7) the frequency with which announcements and forms will be sent.
Several other statutes and regulations also address harmful negative option practices. First, section 5 of the FTC Act has served as the Commission's primary mechanism for addressing deceptive negative option claims. Additionally, the Restore Online Shoppers' Confidence Act (“ROSCA”), 15 U.S.C. 8401-8405, the Telemarketing Sales Rule (“TSR”), 16 CFR part 310, the Postal Reorganization Act (
Section 5(a) of the FTC Act, 15 U.S.C. 45(a), is the core consumer protection statute enforced by the Commission. That statute broadly prohibits “unfair or deceptive acts or practices” but does not specifically address negative option marketing.
In addition to these deception-based requirements, the Commission has repeatedly stated billing consumers without consumers' express informed consent is an unfair act under the FTC Act.
Enacted by Congress in 2010 to address, in part, ongoing problems with online negative option marketing, ROSCA contains general provisions related to disclosures, consent, and cancellation.
Furthermore, pursuant to the statute, a violation of ROSCA is treated as a violation of a Commission trade regulation rule under section 18 of the FTC Act.
The TSR prohibits deceptive telemarketing acts or practices,
EFTA
The existing patchwork of laws and regulations does not provide industry and consumers with a consistent legal framework across media and offers. For instance, as discussed above, the current Rule does not cover common practices such as continuity plans, automatic renewals, and free-to-pay conversions.
Additionally, ROSCA lacks specificity about cancellation procedures and the placement, content, and timing of cancellation-related disclosures. Instead, the statute requires marketers to provide “simple mechanisms” for the consumer to stop recurring charges without guidance about what is simple. While the statute provides more than adequate specificity to avoid blatant violations, it makes law enforcement actions much more difficult for closer calls, even when these practices cause significant harm.
The Commission initiated its last regulatory review of the Negative Option Rule in 2009,
Given the persistence of unfair and deceptive practices despite significant law enforcement attention at both the Federal and State level, the Commission published its 2019 advance notice of proposed rulemaking (“ANPR”) seeking comments on the current Rule, as well as possible new measures to reduce consumer harm created by deceptive or unfair negative option marketing.
On November 4, 2021, the Commission published an “Enforcement Policy Statement Regarding Negative Option Marketing” (“2021 Enforcement Policy Statement” or “EPS”) to provide guidance regarding its enforcement of
After reviewing the comments received in response to the ANPR and issuing the 2021 Enforcement Policy Statement, the Commission issued a notice of proposed rulemaking (“NPRM”) on April 23, 2023 (88 FR 24716). In the NPRM, the Commission proposed amending the existing Rule to prohibit material misrepresentations and to require sellers to provide important information to consumers, obtain consumers' express informed consent, and ensure consumers can easily cancel negative option programs if they choose. All these proposed changes would be applicable to all forms of negative option marketing across all media (
The Commission designed the proposed amendments to curb deceptive or unfair practices occurring in negative option marketing. The Commission sought public comment on “all aspects” of the proposal, “including the likely effectiveness of the proposed Rule in helping the Commission combat unfair or deceptive practices in negative option marketing.”
In response, the Commission received more than 16,000 comments, and published the 1,162 unique comments from stakeholders representing a wide range of viewpoints.
Section 18 of the Federal Trade Commission Act, 15 U.S.C. 57a, and the Commission's Rules of Practice, 16 CFR 1.11(e),
On December 8, 2023, the Commission published an Initial Notice of Informal Hearing (88 FR 85525, “Hearing Notice”). The Hearing Notice designated the Honorable Carol Fox Foelak, Administrative Law Judge for the Securities Exchange Commission, to serve as the presiding officer of the informal hearing and scheduled the informal hearing for January 16, 2024. In the Hearing Notice, the Commission again did not designate any disputed issues of material fact, finding the issues raised by IAB and NCTA did not need to be resolved at the informal hearing through cross-examination.
On January 16, 2024, Judge Foelak commenced the informal hearing, at which IAB, NCTA, Performance Driven Marketing Institute (“PDMI”), TechFreedom, and the International Franchise Association (“IFA”) appeared and made oral submissions subject to cross-examination.
As explained above in section II, the Commission promulgates the final Rule, 16 CFR part 425, pursuant to section 18 of the FTC Act, also known as Magnuson-Moss rulemaking (“Magnuson-Moss”). Under section 18 and the Commission Rules,
Under the Magnuson-Moss statute, the Commission may promulgate rules if it “has reason to believe that the unfair or deceptive acts or practices which are the subject of the proposed rulemaking are prevalent.”
The Commission relies on substantial evidence in the record showing a widespread pattern of unfair or deceptive conduct in the negative option marketplace. This evidence generally falls into three categories: State, private, and Federal actions (including administrative and Federal court FTC law enforcement actions); consumer complaints and comments; and studies. The Commission discusses each in turn below.
Several state Attorneys General
Additionally, the State AGs outlined several ongoing investigations into deceptive or unfair negative option programs since 2019. These investigations include allegations of misrepresenting offers as free when they were not; and failure to clearly and conspicuously disclose negative option features.
Additionally, consumer advocacy organizations and others explained that the widespread prevalence of deceptive acts and practices underscores the “ongoing need for [S]tate engagement to limit negative option abuses.”
Moreover, hundreds of consumer comments detailed specific practices (discussed more thoroughly in connection with the section-by-section analysis below) demonstrating the prevalence of unfair or deceptive negative option practices. Likewise, comments from public interest and consumer advocacy groups further describe existing deceptive or unfair practices prevalent in the negative option marketplace. For example, Berkeley Consumer Law Center explained businesses regularly use dark patterns
Members of Congress also detailed ongoing problems in this area. Citing the increase in consumer complaints and consumer harm in recent years, Representative Takano stated, “deceptive online marketing and unclear recurring payment plans are leaving too many consumers on the hook for products they may not want or even know they purchased.”
Referring to another survey conducted in 2016, TINA noted unwanted fees associated with trial offers and automatically renewing subscriptions ranked as “the biggest financial complaint of consumers.”
NCL and others also cited a 2017 national telephone survey commissioned by
Finally, TINA also noted a consumer survey by the Washington Attorney General's office finding “59% of Washingtonians (3.5 million residents) may have been unintentionally enrolled in a subscription plan or service when they thought they were making a one-time purchase.”
Despite the robust evidence that unfair or deceptive practices are exceedingly prevalent, several trade organizations challenged the Commission's proposed prevalence determination. However, their arguments, as discussed below, are not persuasive.
First, they argued the Commission must show prevalence in a specific industry in order to regulate negative option practices in that industry, but the Commission failed to do so. For instance, NCTA asserted there is no evidence of widespread deceptive negative option practices in the broadband, cable, or voice industries warranting regulation.
As demonstrated above, however, there is ample evidence in the record demonstrating the prevalence of the specific unfair and deceptive practices across numerous sectors of the economy, which the Commission now addresses in an industry-neutral fashion.
Pursuant to Section 18 and the Commission's Rules, the Commission must also state the manner and context in which the prevalent acts or practices are unfair or deceptive. The record demonstrates consumers are often lured into enrolling in negative option programs through seller misrepresentations about material facts—for instance, when a seller offers a product for “free” when it is not.
Sellers also often fail to disclose important information about the offer prior to billing the consumer. As detailed in the comments from,
The record also demonstrates sellers fail to obtain consumers' express informed consent to the negative option feature before charging them. For instance, as detailed in representative consumer complaints from State AGs and several FTC cases, consumers are often unwittingly enrolled into recurring subscriptions with promises of no- or low-cost or discounted rates (not knowing that agreeing will result in subscription to a costly membership), with consumers not realizing the deceptive and unfair enrollment until they see unexpected charges, often after several billing cycles.
Finally, substantial record evidence shows sellers often fail to provide a simple cancellation method. If consumers cannot easily leave a negative option program when they wish, the negative option feature is merely a means of charging consumers for goods or services they no longer want. Commission cases, the Sentinel complaint database, and State Attorneys General's complaints all show sellers often use difficult and cumbersome cancellation mechanisms to prevent or curtail cancellations.
Finally, pursuant to section 18 and the Commission's Rules, the SBP must include a statement regarding the economic effect of the Rule. As part of these rulemaking proceedings, the Commission solicited and received comments on the economic impact of the proposed Rule. In issuing the final Rule, the Commission has carefully considered the comments and other information received as well as the costs and benefits of each provision, as discussed in more detail in section X, Final Regulatory Analysis. That analysis demonstrates the benefits of the Rule far exceed the costs. Benefits were evaluated on a per-cancellation basis; that is, the analysis assumes the primary consumer benefit of the Rule will come in the form of faster cancellations. Costs were evaluated primarily to reflect resources spent by businesses to review and come into compliance with the Rule. The overall net benefit of the Rule is estimated to exceed $5.3B (and could be as much as $49.2B) over the first 10 years (in 2023 dollars).
Pursuant to Magnuson-Moss, the Commission must also define with specificity acts or practices which are unfair or deceptive and either prohibit those activities or establish rules to prevent them. The Commission has done just that, despite some commenters' arguments to the contrary. Specifically, IAB and others
First, section 18 does not require the Commission to define claims with specificity, only acts or practices. The practice of misrepresenting the material facts of a transaction, for instance, is a deceptive practice, but could vary depending on the transaction's terms. Requiring the Commission to identify particular claims would make its rules no better than a leaky sieve, unable to effectively address consumer harm.
Second, the NPRM and the final Rule do define with the requisite specificity the unfair or deceptive negative option acts and practices covered by the Rule.
In contrast here, the Commission specifically identified misrepresentation of material facts as a deceptive practice, and defined the term “material” with the same meaning it has under Section 5 of the FTC Act.
Several commenters raised additional challenges to the Commission's ability to promulgate the Rule. These challenges fall into two categories. First, some commenters argued the Commission failed to give adequate notice of the scope of the proposed amendments to the Rule in the ANPR in accordance with Section 57a(b)(2)(A) of the FTC Act. Second, four commenters argued the Commission exceeded its grant of Congressional authority under the “major questions” doctrine. The Commission addresses each argument below.
Several commenters asserted the ANPR, issued in 2019, failed to provide adequate notice of the acts and practices to be covered by the proposed Rule. Specifically, ESA, USTelecom, RILA, a coalition of trade associations, Chamber, CCIA, IAB, and NRF argued the ANPR failed to provide notice the proposed Rule would cover misrepresentations of all material facts; would require express informed consent to opt-in to receive a save;
These arguments, however, are unpersuasive. Section 18 imposes no requirement the ANPR have the level of specificity the commenters demand. In fact, the statute only says the ANPR must include “a brief description of the area of inquiry under consideration, the objectives which the Commission seeks to achieve, and possible regulatory alternatives under consideration by the Commission.”
Four commenters asserted the Rule implicates the “major questions” doctrine.
However, far from exceeding Congressional intent, the Rule merely effectuates that intent in a way wholly consistent with the specific requirements set forth in Section 18 of the FTC Act. Specifically, Congress explicitly authorized the Commission to prescribe “rules which define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce (within the meaning of such section 5(a)(1)),” which “may include requirements prescribed for the purpose of preventing such acts or practices.”
As the Supreme Court explained, courts use the “major questions doctrine” when examining “extraordinary cases” where agency action would “make a radical or fundamental change” to a statutory scheme and assert “extravagant” authority over the national economy through “ambiguous statutory text,” citing “modest words,” “vague terms,” “subtle device[s],” or “oblique or elliptical language.”
Below, for each provision of the proposed Rule, the Commission reviews the provision, summarizes comments received in response, and sets forth the final Rule with an analysis of the comments and other record evidence.
The Commission proposed eliminating the old Rule's prescriptive requirements applicable to prenotification plans and replacing them with flexible, but enforceable, standards. The proposed requirements would apply to all forms of negative option marketing, including prenotification and continuity plans, automatic renewals, and free trial offers.
The scope of the proposed Rule covered “negative option seller,” defined to mean “the person selling, offering, promoting, charging for, or otherwise marketing goods or services with a negative option feature.” Several commenters raised concerns regarding the scope of this definition.
The Chamber, for example, suggested the Commission delete the term “promoting” from the definition.
ETA, representing the payments industry, addressed the words “charging for” in the definition.
Other commenters, while not specifically criticizing the definition of negative option seller, raised concerns about the scope of the proposed Rule where third parties are involved in marketing and cancellation. For example, several suggested the Rule exempt a seller who contracts with a third party for subscription enrollment, management, or cancellation services.
Based on the record, the Commission revises the definition of “negative option seller” to remove the word “promoting,” but declines to create status-based exemptions.
As several commenters observed, a wide variety of actors may have secondary or tertiary roles in promoting products or services with a negative option feature. Further, as the Chamber noted, “many of those participants . . . may not actually play an active role in determining how the negative option is presented to the consumer.”
The Commission declines to adopt a status-based exemption for payment intermediaries. Such exemptions are overbroad, excluding actors engaged in the practices condemned by the Rule. For example, a payment processor selling its own services on a negative option basis, as opposed to just providing payment services for another negative option seller, is no different than any other business covered by the Rule. Additionally, as ETA correctly noted, the words “charging for” as used in the Rule do not cover intermediaries merely effecting the transfer of funds from the consumer buyer to the merchant seller. This is consistent with the Commission's interpretation of ROSCA's coverage of persons who “charge or attempt to charge any consumer.”
Similarly, the Commission will not grant blanket exemptions to sellers who contract with third parties while offering subscription services. The Commission expects negative option sellers to evaluate their commercial relationships with the Rule's provisions in mind. Even where a seller does not directly manage its negative option feature disclosures, consent, or cancellation, it can satisfy its obligations under the Rule by choosing to contract with third parties who act in accordance with the Rule and monitoring those parties' performance. An exemption for all sellers who contract with third parties to manage aspects of their negative option programs would effectively nullify the Rule by incentivizing less than legitimate sellers to contract with actors engaged in deceptive practices to maximize negative option enrollments and frustrate cancellation with impunity. A seller cannot evade its responsibility to deal honestly with consumers by contracting with a third party who does not.
Several commenters asked the Commission to expressly exclude insurance and State-regulated service contracts from the Rule.
The Commission declines to exempt insurance or service contracts from the Rule. The final Rule can be enforced by the Commission only against covered persons and activities within the Commission's jurisdiction.
Additionally, the requested industry-wide exemption is considerably broader than the FTC's jurisdictional limitations. The McCarran-Ferguson Act does not exempt entities engaged in the business of insurance from the Commission's jurisdiction unless such entities are subject to State regulation.
Finally, commenters' citations to existing State laws and regulations governing service contract sellers indicate these sellers already provide disclosures and protections consistent with the Rule. As a practical matter, sellers who already provide consumers the Rule's protections should not be burdened by its application.
Nine commenters noted the NPRM did not expressly address whether the proposed Rule would apply to business-to-business (“B2B”) transactions. Seven, including five industry associations,
Commenters advocating against including B2B sales in the Rule asserted the Commission should presume businesses are more sophisticated than individual consumers,
Seller and consumer commenters differed on whether the harmful negative option practices discussed in the NPRM are extant for B2B consumers. In support of excluding B2B transactions, two commenters asserted there is insufficient evidence of harm in the B2B context to support a prevalence finding.
Seller and consumer commenters also differed on the significance of existing State law B2B exclusions. Three B2B sellers recommended the Commission follow those States that exclude B2B transactions.
Some sellers also referred to other Federal regulations to support excluding businesses from the scope of the Rule. For instance, ETA and NCTA each noted the Commission excluded most B2B transactions in the TSR. ETA made the same observation about the Cooling Off Rule.
ETA questioned whether the Commission has authority to address B2B transactions. ETA argued the proposed Rule would let the Commission “interpose regulatory influence and law enforcement authority in contractual arrangements between businesses in a way that has not been authorized by Congress or
Finally, ETA and ZoomInfo argued various provisions of the Rule, such as the disclosure and notice requirements, could present unusual implementation problems in B2B transactions. For instance, ETA asserted disclosure requirements could result in operational uncertainty because the Commission did not consider all the typical terms included in B2B agreements. Similarly, ZoomInfo explained “B2B agreements are often complex, involving multiple decision-makers and points of contact, who might rotate or leave their roles over the course of a contract.”
The final Rule, like the proposed Rule, covers B2B transactions. It has been the Commission's longstanding view that section 5 of the FTC Act
The Commission has long enforced the FTC Act against those who deceive and act unfairly to businesses and other organizations.
Moreover, the TSR never exempted B2B transactions entirely. Importantly, the Commission recently amended the TSR to cover a broader scope of B2B activity. Specifically, in 2024, the Commission expanded the TSR to prohibit material misrepresentations and false or misleading statements in B2B calls due to the ongoing harm to small businesses from such practices.
Additionally, recent Commission actions to protect small businesses underscore the fact deceptive practices pertaining to negative option features occur in B2B transactions just as they do with individual consumers. None of these cases present the arms-length negotiation of contracts by sophisticated parties that commenters claim to be universal. For example, in its 2022 action against
In the Commission's 2022
The Commission's 2022 action against
Nonetheless, two arguments for excluding B2B transactions warrant additional discussion.
In the NPRM, the proposed Rule set forth several definitions. For example, the proposed Rule defined “negative option feature” as a contract provision under which the consumer's silence or failure to take affirmative action to reject a good or service or to cancel an agreement is interpreted by the negative option seller as acceptance or continuing acceptance of an offer. This definition is consistent with the TSR and ROSCA (which references the TSR's definition). The proposed term includes, but is not limited to, automatic renewals, continuity plans, free-to-pay conversion or fee-to-pay conversions, and pre-notification negative option plans.
Additionally, the proposed Rule defined “clear and conspicuous,” “negative option seller,” and “save.” To define “clear and conspicuous,” the FTC imported its definition developed through years of enforcement experience. As explained in the NPRM, the proposed definition substantially overlaps with the concepts provided in California and District of Columbia negative option laws,
The Commission did not receive any comments specifically supporting any proposed definition, though several commenters generally supported the concepts incorporated in the definitions, such as “clear and conspicuous disclosures.” Several commenters critiqued the Commission's omission of certain definitions, such as “material” in connection with § 425.3 and § 425.4,
Several commenters critiqued the proposed definitions. For example, ESA stated “the definition of `save'
Additionally, several commenters requested the Commission revise certain of its proposed definitions for clarity. For instance, the National Federation of Independent Businesses (“NFIB”) asked the Commission to revise the definitions for “clear and conspicuous” and “negative option feature” to “make their meanings clearer”
Based on the record, the Commission makes several changes to the proposed definitions. First, as explained in sections VII.B.1.3 (material) and VII.B.6.c.2.b.ii (interactive electronic medium), it adds definitions of material and interactive electronic medium for clarity. Further, as discussed in section VII.B.4, the Commission modifies the definition of clear and conspicuous.
Second, the Commission removes the definition of save. As discussed in section VII.B.6.c the proposed saves provision did not achieve the right balance between protecting consumers from unfair tactics and allowing sellers to provide necessary and valuable information about cancellation. Therefore, the Commission declines to include the NPRM's proposed limitation on saves, and instead will consider issuing an SNPRM in the future for
Although several commenters critiqued the lack of definitions for such terms as “simple cancellation mechanism,” “practical,” or “normal business hours,” the Commission addresses these concerns with further clarification, rather than with formal definitions, in the section-by-section analysis below. As to commenter requests for a definition of “consumer” expressly excluding (or including) business-to-business transactions, the Commission similarly addresses these requests in the sections regarding scope and requested exemptions, above.
Finally, NFIB asked the Commission to add specific examples of each type of negative option program to the text of the Rule, stating those served by the Rule would likely not understand these “terms of art.”
Section 425.3 of the proposed Rule prohibited sellers from misrepresenting “any material fact related to the transaction, such as the negative option feature, or any material fact related to the underlying good or service.”
The FTC Act provides the legal basis for the Commission to prevent and remedy misrepresentations in the negative option context. Specifically, section 5(a)(1) of the FTC Act declares unfair or deceptive acts or practices in or affecting commerce to be unlawful. Negative option sellers making material misrepresentations are engaged in deceptive practices. Addressing these practices through the Rule prevents deception by giving the Commission the ability to seek civil penalties (where appropriate under 5(m)(1)(a)), where they are not already provided, thus deterring misrepresentations, protecting consumers, and leveling the playing field for “honest sellers who must compete with those who engage in deception.”
The State AGs strongly supported this provision, stating, for example, it would “combat[ ] seller misrepresentations, by providing the FTC with authority to seek civil penalties and consumer redress for material misrepresentations in all types of media.”
Law Professors further supported prohibiting “material misrepresentations . . . whether or not the false claim is exclusively about the negative option feature.”
These commenters further argued the Commission should not adopt a narrower provision limited strictly to the elements of a negative option feature because, in their view, it would be difficult “to fully separate misrepresentations regarding the negative option feature from all other material misrepresentations.”
Several commenters, largely trade groups and sellers, criticized the proposed provision. As discussed in section V.A, several questioned the prevalence of misrepresentations
Several commenters objected to the scope of the proposed provision. Citing Commissioner Wilson's dissent to the NPRM, TechNet noted the proposed Rule “would capture alleged misrepresentations regarding the underlying product or service `wholly unrelated' to the negative option feature.”
Similarly on scope, some commenters also argued the proposed language lacked the specificity necessary to give sellers notice of what conduct would violate the Rule.
A few commenters provided hypotheticals or asked rhetorical questions to illustrate concerns about the proposal's breadth. MIA, for example, stated, “if a streaming service advertises, `movies that you will love,' but you do not `love' them, is that a violation of this rule subject to penalties? If a housekeeping service claims, `great cleaning every time,' but the resulting cleanliness is not up to the consumer's `standards,' will that trigger this provision and any resulting penalties?”
Many of these commenters argued the reach of the proposed Rule would negatively impact consumers by discouraging negative option offerings. TechNet said, “[f]or a variety of subscription services, the main drivers of consumer engagement are the subscription services' ability to provide financial savings, convenience, and access to premium services. . . . Unfortunately, the NPRM ignores these benefits and would discourage the offering of subscription services altogether.”
Several commenters asserted existing laws and regulations make the proposed provision unnecessary. Some argued section 5's prohibition against deceptive practices already provides the Commission sufficient authority on this issue.
Commenters were divided on ROSCA's coverage. NRF, for example, said “[i]n light of the Commission's decision that ROSCA already prohibits deceptive statements made in connection with a subscription, even if not directly related to subscription terms, many of the proposed amendments are unnecessary.”
Several commenters recommended changes if the proposed provision remains in the Rule. BSA, for example, suggested the Commission should define the term “material,” citing the TSR and the FTC Policy Statement on Deception as examples.
Several commenters suggested the Commission limit the misrepresentation provision to the terms of the negative option feature. For instance, BSA advocated for limiting the provision “to facts relating to the transaction and not every material fact relating to the underlying good or service.”
Based on the record, the Commission adopts a clarified version of the material misrepresentation section and adds a definition for further clarification. Specifically, the final Rule omits the proposed language referring to “any material fact related to the transaction, such as the negative option feature, or any material fact related to the underlying good or service” and instead prohibits misrepresentation of “any material fact,” and defines “material” consistent with the TSR and section 5 of the FTC Act. Further, to enhance clarity and specificity, the text lists several examples of potentially material fact categories, taken from Commission precedent.
As further explained below: (1) despite commenters' concerns to the contrary, this provision is consistent with the ANPR and prevalence requirements of section 18 of the FTC Act; (2) consistent with ROSCA, the final provision is not limited to material misrepresentations about the negative option feature itself; (3) the Commission declines to exclude any subset of material misrepresentations from the scope of the Rule; and (4) for clarity, the Commission adds a definition of “material” consistent with established law of section 5 and other Commission Rules.
(1)
Prior to the publication of any notice of proposed rulemaking promulgated under the Magnuson Moss Act, the Commission must publish an advance notice of proposed rulemaking (ANPR).
The record demonstrates misrepresentations made to induce consumers to enter into negative option programs are prevalent. Specifically, the Commission's enforcement experience (including consumer complaints, matters cited in the NPRM, and matters cited in this Statement of Basis and Purpose) as well as the experiences of the State AGs, the information cited by the Law Professors, and comments by consumer commenters all support this conclusion.
As several commenters critical of the proposed provision correctly note, misrepresentations to induce consumers to join negative option programs are already unlawful under section 5, as well as under other State and Federal laws and regulations, depending on (among other things) media used and jurisdiction. This fact, however, does not undermine the need for the Rule provision. By definition, a section 18 trade regulation rule addresses conduct that is already prohibited under section 5. With such prohibited conduct defined, the trade regulation rule may also more broadly “include requirements prescribed for the purpose of preventing such acts or practices,” but the core of a trade regulation rule is the description of acts or practices already violative of section 5.
Moreover, the fact that ROSCA's disclosure requirement
The final Rule prohibits misrepresentation of “any material fact.” In doing so, it provides a non-exhaustive list of categories of potentially material facts (including transaction terms) and adds a definition of “material,” consistent with section 5 and the TSR. Specifically, consistent with section 5, “material” means “likely to affect a person's choice of, or conduct regarding, goods or services.”
The Commission declines to limit the misrepresentations prohibition solely to elements of the negative option feature.
Moreover, seller commenters themselves highlighted transaction elements other than negative option terms as critical to inducing consumers to choose negative option features. IAB, for example, pointed to the promise of “broader selection and lower prices” or “convenience and savings.”
Furthermore, such a distinction may invite dishonest actors to misrepresent material facts about a transaction so long as they felt they could evade monetary liability for such misrepresentations. Moreover, simply refraining from making material misrepresentations is hardly a significant burden given the fact that such misrepresentations are already illegal under section 5 of the FTC Act, and subject to civil penalties when made on the internet and over the telephone pursuant to ROSCA and the TSR, respectively.
To further promote clarity, the Commission includes a list of non-exclusive examples in the text of § 425.3. In addition to the negative option feature itself, the examples include certain characteristics the Commission has identified as presumptively material for more than 40 years
Some commenters asserted section 18 does not authorize the Commission to prohibit material misrepresentations in a given area of commerce. Section 18, however, permits the FTC to promulgate “rules which define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce (within the meaning of [section 5(a)(1)]) . . . [and] may include requirements prescribed for the purpose of preventing such acts or practices.”
Several commenters appear to think section 18 requires the Commission to define specific claims as deceptive; for example, two commenters cited the Business Opportunity Rule's treatment of misrepresentations.
The record, including the submissions of many industry commenters, shows negative option features are found across industries, but are consistently distinguishable as a subset of general commercial practices. As commenters point out, negative option features offer many distinct benefits to consumers and sellers. These benefits do not lose their distinct character merely because they occur across different kinds of goods and services sold across different channels. While the record shows this practice offers distinct benefits, it also shows the practice is plagued by distinct abuse. This is not a hypothetical statement; the Commission is not promulgating the final Rule because negative option features may engender deception, whether relating to the feature itself or to other material facts, but rather because the record shows they have.
In addressing this deceptive practice, the Commission remains guided by core principles articulated in its 1983 Deception Policy Statement. As the Commission explained, in considering whether to act against a deceptive practice, the Commission will observe the extent to which consumers themselves have been able to police and generate consequences for seller deception.
Finally, as a matter of policy, when consumers can easily evaluate the product or service, it is inexpensive, and it is frequently purchased, the Commission will examine the practice closely before issuing a complaint based on deception. There is little incentive for sellers to misrepresent (either by an explicit false statement or a deliberate false implied statement) in these circumstances since they normally would seek to encourage repeat purchases. Where, as here, market incentives place strong constraints on the likelihood of deception, the Commission will examine a practice closely before proceeding.
The record shows the practice of misrepresenting material facts to induce consent to negative option features has created distinct issues consumers have not been able to address themselves, enabling sellers to collect numerous recurring payments before consumers detect the misrepresentation and act to stop the charges. This problem is not confined to a particular subset of industries or misrepresentations but instead is a too-frequent practice throughout negative option marketing.
The Commission has considered commenters' section 18 specificity concerns pertaining to material misrepresentations and finds them unsupported by the record. These commenters suggest a hypothetical world where negative option features provide distinguishable commercial benefits without presenting distinguishable material misrepresentation challenges. The reality is otherwise. Thus, the final Rule prohibits the specific practice of sellers misrepresenting material terms or facts in connection with negative option sales.
As noted above, and as suggested by commenters, the Commission defines “material” in the final Rule. This definition adds clarity and addresses the rhetorical questions raised by commenters regarding scope. Specifically, consistent with section 5, the TSR, and longstanding Commission policy and case law, the final Rule defines the term to mean likely to affect a person's choice of, or conduct regarding, goods or services.
The hypotheticals posed by MIA—“movies that you will love” or “great cleaning every time”—are classic examples of puffery, and thus, are not within the scope of materiality.
Section 425.4 of the proposed Rule prohibited sellers from failing to disclose “any material conditions related to the underlying product or service that is necessary to prevent deception, regardless of whether that term directly relates to the terms of the negative option offer.”
The Commission also proposed requirements regarding the form and location of this important information, as its “law enforcement experience and consumer complaints are replete with examples of hidden disclosures, including those in fine print, buried in paragraphs of legalese and sales pitches, and accessible only through hyperlinks.”
Further, the proposal stated all disclosures must be clear and conspicuous as defined in § 425.2(c). Among other elements of the clear and conspicuous definition, the proposed Rule specified that in any communication using an interactive electronic medium, such as the internet, mobile application, or software, the disclosure must be unavoidable. The proposed Rule also specified that a disclosure is not clear and conspicuous if a consumer “must take any action, such as clicking on a hyperlink or hovering over an icon, to see it.”
Finally, the proposed Rule prohibited sellers from including any information that interferes with, detracts from, contradicts, or otherwise undermines the ability of consumers to read, hear, see, or otherwise understand the required disclosures. The final clause of this prohibition “includ[ed] any
Through these provisions, the Commission sought to prevent deception by businesses taking advantage of the gray areas in current law, to deter fraudulent actors through the possibility of monetary relief, and to “level the playing field for legitimate businesses, freeing them from having to compete against those employing deception.”
Thousands of commenters supported the important information requirement, stating it is “critically important that companies make it explicitly clear what consumers are signing up for.”
Several individual commenters indicated clear upfront disclosures would help them make informed choices and improve their willingness to try negative option offerings, particularly if the disclosure provided an easy cancellation mechanism. As one put it, “I am much more like[ly] to try—and buy—a new service if I know there is an easy way to cancel online.”
Public advocacy commenters also supported the provision. The Berkeley Consumer Law Center said, “the requirement of `clear and conspicuous' disclosures of `any material term related to the underlying goods or services that is necessary to prevent deception' will help prevent cancellation terms from being shrouded in mystery through complicated terms and conditions, while also blocking the practice of hiding subscription services that are needed to fully use a product.”
Law enforcement commenters likewise supported the important information requirements. The State AGs said they would “repel the abusive practices of hidden disclosures, `including those in fine print, buried in paragraphs of legalese and sales pitches, and accessible only through hyperlinks.' ”
Other commenters, mostly industry groups,
Multiple commenters claimed the requirement that disclosures using an interactive electronic medium must be “unavoidable” would be unworkable given the additional provision that a “disclosure is not clear and conspicuous if a consumer must take any action, such as clicking on a hyperlink or hovering over an icon, to see it.”
Several commenters also objected to the requirement sellers disclose material terms other than those pertaining exclusively to the negative option feature, asserting this would be overbroad.
Several commenters took issue with the five specific disclosures in the proposed Rule. For example, the requirement to disclose “the date (or dates) each charge will be submitted for payment” drew substantial criticism, with several commenters asserting appropriate disclosures regarding frequency should suffice.
Additionally, multiple commenters criticized the provision requiring the placement of material terms “directly related to the negative option feature” . . . “immediately adjacent” to recording the consumer's consent.
Finally, one commenter expressed uncertainty about the meaning of the “other information” provision. NRF said it “asks companies to walk a tight rope between ensuring they contain all material terms, while risking liability if they include `
The State AGs also recommended three amendments to this proposal. First, they recommended requiring sellers to “disclose all material policies concerning cancellation.” Second, they recommended “sellers be required to disclose `all the information necessary for the consumer to effectively cancel the negative option feature.' ” (Emphasis in comment.) They explained, “[d]isclosures in the form of `click-here-to-cancel' icons, which lead to terms and conditions pages, confusing cancellation flows, or do not otherwise explain how to cancel online, should not be permitted.” Third, they recommended “the FTC amend this provision to require that the important information identified by this proposed Rule be provided to the consumer in a manner that is capable of being retained by the consumer.”
Based on the record, the Commission retains proposed § 425.4 with several clarifications. First, as explained in section VII.B.3 of this SBP, the Commission adds a definition of “material” at § 425.2(e). Second, in § 425.4(a), the Commission clarifies three of the listed types of important information sellers must provide and omits one to address commenters' concerns. Third, as explained in section VII.B.4.b.2 of this SBP, the Commission revises the definition of “clear and conspicuous” in § 425.2(c). Fourth, in § 425.4(b)(2) the Commission clarifies language regarding “placement” of disclosures. Finally, the Commission clarifies the language prohibiting sellers from including “any other information” that “interferes with, detracts from, contradicts, or otherwise undermines” consumers' abilities to read, hear, see, or understand the required disclosures.
The Commission declines to limit the scope of the required information under this provision to only information related to the negative option feature. Section 425.4(a)'s requirement that sellers disclose “all material terms” prior to obtaining the consumer's billing information is consistent with ROSCA and section 5 of the FTC Act. Moreover, in the Commission's law enforcement experience such a provision is necessary to prevent deception.
To address commenters' concerns about clarity, however, § 425.2(e) adds a definition of “material;” specifically, material means “likely to affect a person's choice of, or conduct regarding, goods or services.”
Additionally, the Commission modifies the proposed list of important information.
The Commission revises the second proposed disclosure, that sellers provide “
The Commission also clarifies the third proposed disclosure. The proposed Rule required sellers to disclose “[t]he amount (or range of costs) the consumer will be charged, and, if applicable, the frequency of such charges a consumer will incur unless the consumer takes timely steps to prevent or stop those charges”).
The final Rule omits the proposed fourth disclosure: the date (or dates) each charge will be submitted for payment. The Commission is persuaded by commenters' concern that a specific date or dates may be cumbersome or impossible to calculate. For example, if the seller will submit a charge when it ships a new item in a series, the seller may not be able to predict the specific dates it will submit the charge in the future. In addition, in light of the change to the placement requirements of § 425.4(b)(2)(i), discussed below, including these dates could reduce the clarity and conspicuousness of higher priority adjacent disclosures (especially cancellation deadlines, which will often occur before dates of charges). If, however, disclosure of the date (or dates) each charge will be submitted for payment is necessary to prevent deception in individual cases, such disclosure is required under § 425.4(a). However, its placement is governed by revised § 425.4(b)(2)(ii) rather than § 425.4(b)(2)(i).
Finally, the Commission clarifies the fifth proposed mandatory disclosure (the fourth in the final Rule). The proposed Rule required sellers to disclose “[t]he information necessary for the consumer to cancel the negative option feature”. In contrast, the final Rule requires sellers to disclose “The information necessary for the consumer to find the simple cancellation mechanism required pursuant to § 425.6”. This change addresses commenters' concern the language of the proposed Rule, combined with the placement requirements of § 425.4(b)(2)(i), would result in detailed cancellation disclosures crowding out other important required disclosures.
Some sellers expressed concern regarding the timing of disclosures where a consumer previously elected to save billing information with the seller. To address this concern the Commission now clarifies that, where a consumer has previously provided account information to the seller and expressly allowed the seller to store that information,
Section 425.4(b)(1) provides, “[e]ach disclosure required by paragraph (a) of this section must be clear and conspicuous.” The Commission retains this requirement but revises the definition of clear and conspicuous at § 425.2(c) to address commenters' concerns regarding space-constrained
Section 425.4(b)(2) (“Placement”) retains the proposed Rule's structure requiring a subset of disclosures to “appear immediately adjacent to the means of recording the consumer's consent for the negative option feature,” while setting a more general timing requirement regarding other disclosures. However, the Commission has revised some terms to promote clarity.
Specifically, final § 425.4(b)(2)(i) requires only the four specific mandatory disclosures listed in § 425.4(a) to appear “immediately adjacent to the means of recording the consumer's consent.” The Commission is persuaded by commenters' concerns that requiring market participants to determine which required disclosures are “directly related to the negative option feature,” and which are not, is too great a burden and could lead to consumer confusion.
Several commenters requested clarification of the “immediately adjacent” requirement in the context of voice transactions.
Two commenters expressed concern that requiring sellers to make disclosures “before consumers make a decision to buy” creates uncertainty because it is unclear when that triggering event occurs.
Finally, the Commission adopts a clarified version of § 425.4(b)(3) (“Other information”). The Commission retains the proposed Rule's requirement that sellers not employ “other information that interferes with, detracts from, contradicts, or otherwise undermines the ability of consumers to read, hear, see, or otherwise understand the disclosures.” However, the Commission finds the final clause in the proposed Rule (“including any information not directly related to the material terms and conditions of any negative option feature”) could be read to contradict other requirements of the Rule. Specifically, there may be necessary material disclosures not directly related to the terms and conditions of a negative option feature, and it is illogical to simultaneously require these disclosures (through §§ 425.4(a) and (b)(2)) and prohibit them (through § 425.4(b)(3)). The Commission therefore omits the clause from the final Rule. This revision does not alter the requirement of § 425.4(b)(2)(i) that certain specific disclosures be made clearly and conspicuously immediately adjacent to the means of recording the consumer's consent. A seller who makes additional disclosures immediately adjacent to the means of recording the consumer's consent in a manner undermining the clarity and conspicuousness of the required § 425.4(b)(2)(i) disclosures violates § 425.4(b)(2)(i) and § 425.4(b)(3).
Section 425.5(a) of the proposed Rule prohibited sellers from charging consumers before obtaining their express informed consent to the negative option feature. This provision mirrors 15 U.S.C. 8403(2) (ROSCA), but provided specificity for sellers covered by the Rule and to prevent unfair and deceptive practices. Specifically, the provision addressed one of the most pervasive problems of negative option marketing: sellers employing inadequate consent procedures to increase enrollment. Even for marketers trying to comply with the law, negative option programs present unique challenges. Specifically, consumers often focus on the aspects of an offer that mirror the offers they regularly encounter (
To address this problem, § 425.5(a)(1) of the proposed Rule required sellers to obtain a consumer's unambiguously affirmative consent to the feature separately from any other portion of the transaction. Section 425.5(a)(2) of the proposed Rule further required the seller to exclude any information that “interferes with, detracts from, contradicts, or otherwise undermines” the consumer's ability to provide express informed consent to the negative option feature. This prohibition is consistent with longstanding Commission precedent that consent can be subverted, including by so-called “dark patterns,” sophisticated design practices used to manipulate users into making choices they would not otherwise have made.
Additionally, under § 425.5(a)(3) of the proposed Rule, sellers had to obtain consumers' unambiguously affirmative consent to the rest of the transaction to ensure consumers agreed to all elements of the agreement, even those not specifically related to the negative option feature. Further, § 425.5(a)(4) of the proposed Rule required sellers to obtain and maintain (for three years or a year after cancellation, whichever is
To maintain consistency with the TSR, § 425.5(b) contained a cross-reference to 16 CFR part 310 so sellers subject to the TSR know they must comply with all applicable provisions of that Rule, including those related to pre-acquired account information and free-to-pay conversions.
Proposed § 425.5(c) provided an exemplar consent mechanism for those making written offers (including those on the internet) to illustrate how sellers could obtain consumers' unambiguously affirmative consent to the negative option feature. Specifically, this provision stated for all written offers, sellers may obtain such consent through a check box, signature, or other substantially similar method, which the consumer must affirmatively select or sign to accept the negative option feature. This consent had to be independent from any other portion of the offer.
Finally, the Commission invited comments on whether sellers offering free trials should be required to obtain an additional round of consent before charging a consumer at the end of a free trial.
Consistent with the Commission's and States' enforcement experience,
Sellers and trade groups also supported the requirement,
Other groups asserted if consumers are confused, they may not affirmatively consent to the rest of the transaction, which could cause uncertainty about the existence of the contract.
Two commenters asked the Commission to modify the proposed provision by merging consent to the transaction and the negative option feature. These commenters suggested a separate consent should only be necessary where there are two independent portions of the transaction: one related to the negative option feature and a second for the sale of a separate good or service (including a free trial).
IAB, DCN, CTA, and several direct marketing companies asserted the Commission could achieve the same outcome—informed consent—through less restrictive means,
Some commenters raised additional concerns. For instance, several commenters challenged the Commission's statement that a separate check box or similar method could be used to record a consumer's unambiguously affirmative consent. Specifically, PDMI contended the check box, signature, or “substantially similar” method of consent could quickly become obsolete and “replaced by far more effective and consumer friendly mechanisms.”
Additionally, several trade groups and sellers expressed concern about the NPRM's proposed recordkeeping requirements. For instance, one trade group explained the proposed requirements “would require sellers to maintain records of consumer consent for at least three years, even for consumers who signed up for a free trial and cancelled it before being charged. As drafted, the proposed amendments would also require sellers to maintain records of consumer consent for eleven years for individuals who continuously subscribe to negative option features for at least ten years.”
Numerous commenters asserted these recordkeeping requirements would increase costs, which could ultimately be passed onto consumers,
Two consumer groups supported the consent provision but asked the Commission to add clarifying language. Specifically, Berkeley Consumer Law Center asked the Commission to state the Rule strictly prohibits the use of dark patterns to obtain consent and that consent cannot be given through silence. A group of professors asked the Commission to clarify that disclosures “appear in each language in which the representation that requires the disclosure appears.”
Finally, commenters split on whether the Rule should require separate affirmative consent for free-trial offers. Several consumers supported requiring separate consent at the conclusion of a free-trial period,
Based on the record, the Commission removes the proposed requirement that sellers obtain separate consent to “the rest of the transaction” under § 425.5(a)(3). Further, the Commission modifies the recordkeeping requirement to require sellers to maintain records only for three years from the date of consent. Alternatively, if sellers can show by a preponderance of the evidence they use processes that make it technologically impossible for a consumer to purchase the good or service without consent, sellers need not retain such records.
Prior to addressing each of the issues listed above, it is important to clarify one point. A negative option feature is not itself a product or service—it is simply a mechanism for repeatedly consenting to the extension of a contract through silence. Thus, there are not situations in which the negative option feature is the product, as some commenters suggested. In the example provided above, a subscription to a streaming entertainment service can be offered with (
Based on the comments, the Commission finds requiring consumer consent to “the rest of the transaction” apart from the negative option feature is unnecessary, potentially confusing, and may be hard to implement. First, even without the separate consent requirement, the proposed Rule contained several elements that work together to ensure consumers know they are agreeing to a negative option feature. Specifically, the proposed Rule required sellers to obtain the consumer's unambiguously affirmative consent to the negative option feature separately from any other portion of the transaction
Given these protections, a separate consent requirement is not necessary.
Section 425.5(a)(4) of the proposed Rule required sellers to obtain and maintain (for three years or a year after cancellation, whichever was longer) verification of the consumer's consent to the negative option feature. Implementation of this requirement would undoubtably enhance the FTC's ability to enforce the Rule. However, the Commission agrees the proposal creates privacy concerns. The Commission has long recommended companies employ data retention policies that “dispose of data once it has outlived the legitimate purpose for which it was collected.”
Balancing the Commission's interest in robust Rule enforcement against privacy and burden concerns, the Commission modifies the proposed Rule. Specifically, § 425.5(a)(3) of the final Rule requires sellers to keep or maintain verification of the consumer's consent for a period of three years from the date of consent (rather than three years or a year after cancellation, whichever is longer). Removing the requirement that sellers keep records until one year after cancellation prevents the retention of records for very long periods of time while the contract is still in force. Moreover, as some commenters stated,
As noted above, a few commenters questioned the Commission's proposed exemplar consent mechanism under § 425.5(c). This proposed provision states for written offers, a check box, signature, or “substantially similar” method can be used to obtain a consumer's unambiguously affirmative consent. The Commission notes the mechanism applies to the negative option feature only, and thus corrects the cross-reference contained in this provision from (a)(3) to (a)(1).
The Commission further notes this provision does not require a check box or signature. The Commission offered these methods only as examples a seller can use to obtain unambiguously affirmative consent, not the only ways to do so. Thus, the exemplar does not conflict with caselaw holding that a check box is not required to manifest consent. The Commission also declines to include language in the final Rule, as one commenter suggested,
The Commission further declines to remove this provision's reference to “substantially similar” methods as some commenters requested. The language is intended to cover any method that affords consumers all the same protections as a check box or signature. The phrase “substantially similar” performs this function while allowing for technological advancement, innovation, and adaption without tying sellers to specific mechanism that may become obsolete.
Further, the Commission declines to modify the final Rule to allow sellers to obtain express informed consent by merely “disclosing” the negative option more clearly through,
While this balance is appropriate, the required disclosure of important information under § 425.4 does not replace the requirement that sellers obtain consumers' express informed consent. To avoid harm from unfair and deceptive practices, it is imperative consumers unequivocally understand they are agreeing to enrollment in a negative option program and demonstrate their agreement.
The Commission also declines to add language stating (1) the Rule strictly prohibits the use of dark patterns to obtain consent and (2) consent cannot be given through silence. The Rule already addresses both concerns. First, the Rule bars any information that “interferes with, detracts from, contradicts, or otherwise undermines” the consumer's ability to provide express informed consent. To the extent dark patterns run afoul of any of these requirements, they are prohibited. To the extent they do not, consumers' express informed consent as required by the Rule is not implicated. Second, under § 425.5, consumers already must give affirmative consent.
Finally, the Commission does not need to clarify, as some commenters suggested, that required consents “appear in each language in which the
In the NPRM, the Commission invited comments on whether the Rule should require an additional (or alternative) round of consent after the end of a free trial offer. As explained in the NPRM, if the seller follows the proposed Rule's disclosure and consent requirements, consumers should understand they are enrolled in, and will be charged for, the negative option feature once the free trial ends. As discussed above, however, several commenters explained with enough time between initial enrollment and charge after conversion, consumers are primed to forget the negative option feature.
Section 425.6 of the proposed Rule contains several requirements to ensure consumers can easily cancel negative option features. As explained in the NPRM, “easy cancellation is an essential feature of a fair and non-deceptive negative option program,” but one that has become “far too often illusory.”
To prevent unfairly trapping consumers in a transaction they do not want, the proposed Rule directed sellers to provide a cancellation mechanism that (1) immediately halts recurring charges; (2) is as simple to use as the mechanism the consumer used to consent to the negative option feature; and (3) is readily accessible through the same medium the consumer used to provide that consent. The Commission intended these requirements to erect clear guardrails, while providing sellers with the flexibility to innovate. Therefore, rather than propose specific prohibitions, which may lose utility over time, or inadvertently provide a roadmap for deception, the proposed Rule outlined a performance-based standard mapping the contours of what constitutes a simple mechanism, without overly prescriptive requirements.
Proposed § 425.5(a) and (b) required a fast and easy cancellation mechanism that, at minimum, allows the consumer to cancel as easily as they enrolled in the program. The Commission received thousands of comments in support of this provision, with individual consumers uniformly expressing their desire for a simple easy to use cancellation mechanism.
Some commenters suggested unsubscribing should be easier than enrolling,
As summarized by the Berkeley Consumer Law Center, “requiring the mechanism of cancellation be as simple as enrollment” will minimize “overly complex cancellation processes with multiple steps,” and prevent sellers “from trapping consumers in automatically renewing subscriptions through obstacles created by tedious processes or confusion.”
Sellers and trade organizations argued the proposed requirements were “too vague.”
Considering the overwhelming support for a simple cancellation
Moreover, the “as easy as” standard is even clearer in context,
Nevertheless, as some commenters point out, the proposed initiation or purchase date trigger may provide insufficient clarity.
The proposed Rule required sellers to provide a simple cancellation mechanism through the same medium (internet, phone, in-person) the consumer used to consent to the negative option feature. Almost uniformly, consumers supported this requirement.
Consumer groups and law enforcement asked the Commission to add minimum requirements to the simple cancellation mechanism. For instance, the State AGs asked the Commission to include the various requirements stated in the 2021 Enforcement Policy Statement,
Finally, some commenters suggested the record lacks evidence that it would be unfair or harmful to consumers to have a cancellation process different from the sign-up process.
Section 425.6(c)(1) of the proposed Rule specifically addressed online cancellation, requiring sellers to provide a cancellation mechanism over the same website or web-based application the consumer used to consent. Thousands of commenters repeated the mantra: “If you signed up online, you should be able to cancel online,” noting they often face hurdles finding a cancellation mechanism, and then must call and
In contrast, RILA suggested consumers would not always expect to find a cancellation function through the same online medium the consumer used to enroll. “For example, contracts are . . . increasingly concluded online through third parties or via social media apps. Regardless of how a customer initially signs up, once she/he establishes a purchasing arrangement with a seller, the customer will logically look to the seller to cancel.”
Similarly, trade groups, such as NCTA and PDMI, argued mandating consumer cancellation through the same website or web-based application the consumer used to initiate the transaction is too prescriptive.
Additionally, broadband, wireless, and streaming groups, such as NCTA and USTelecom, suggested the same-medium requirement is particularly troublesome for their industries because consumers often subscribe to multiple, or bundled, services, rendering cancellation online through a single click difficult or impossible. These industries posited consumers often do not, in fact, want to cancel, but rather seek to downgrade or modify services. Therefore, requiring a consumer to speak to a live agent best accomplishes this goal, regardless of how the consumer enrolled.
Alarm companies raised a similar concern,
Proposed § 425.6(c)(2) addressed situations in which sellers obtain consumer consent by telephone. In these situations, the proposed Rule required sellers to provide a telephone number to consumers and “assure” all calls are answered promptly during “normal business hours” and are no more costly than the call to enroll.
Several commenters asked the Commission to modify this section. Specifically, N/MA asked that sellers be allowed to confirm telephone cancellations through email verification.
For in-person sales, proposed § 425.6(c)(3) required sellers to offer online or telephone call cancellation mechanisms in addition to the same in-person mechanism, where practical. The proposed Rule further required sellers not make telephone cancellation more costly than the method used to consent to the negative option feature.
Individual consumers identified the many ways in which demanding in-person cancellation is unfair. For instance, they observed it may not always be possible to cancel in person, as was true during the COVID pandemic,
In contrast, two trade associations requested the Commission allow sellers to require consumers to cancel in person if they signed up in person. These commenters argued such a limitation is appropriate due to the unique challenges of their industries. For example, IHRSA, which represents the health and fitness industry, stated, “it is appropriate for a brick-and-mortar business” to require customers to cancel in person “to verify their identity.” The International Carwash Association (“ICA”) stated some of its members sell products and services exclusively in person; therefore, it asked the Commission to not “force” these small business owners “to set up an online marketplace” to process cancellations if the seller does not already have an online presence.
Based on the record, the final Rule retains the general requirements proposed in § 425.6(c); specifically, the negative option seller must provide a simple cancellation mechanism through the same medium (such as internet, telephone, mail, or in-person) the consumer used to consent to the negative option feature. Further, the final Rule retains § 425.6(a) that requires sellers to provide consumers with a simple mechanism to immediately stop charges that is cost-effective, timely, and easy to use. Such a mechanism cannot include “unreasonable barriers to cancellation or impede the effective operation of promised cancellation procedures.”
Moreover, despite some commenters' assertions to the contrary, the Commission has clear authority to issue a rule requiring sellers to offer cancellation through the same medium as enrollment. As detailed in section VII.A, there is a substantial record demonstrating the negative option practices covered by this Rule are unfair or deceptive, prevalent, and have caused significant consumer harm.
In response to comments, the Commission makes several changes to clarify the online cancellation mechanism requirements. First, it removes the requirement that, for website or web-based applications, cancellation must be afforded through the same precise means as consent. Instead, the final Rule provides the simple cancellation must be easy to find. Second, the revised provision incorporates a definition of “interactive electronic medium” in place of “internet.” Third, the Commission excludes cancellation mechanisms requiring interaction with a live or virtual agent, unless the consumer consented to the negative option feature through such mechanism. Each modification is discussed below.
Consumers uniformly opposed having to engage with a representative to cancel when they could simply click a button to enroll.
Accordingly, to clarify the intent of the original language and to better match consumer expectation with actual cancellation procedures, the Commission now clarifies that where a consumer enrolls online, whether through a website, a mobile application, chat, email, or messaging, consumers must be afforded an equally simple online cancellation experience,
Many commenters agreed consumers would consider a link or button located on a website or within a user's account or device settings to be “easy to find.”
Further, the Commission emphasizes that the cancellation mechanism must be easy to find at the time the consumer decides to cancel. Providing an easy-to-find mechanism at consent does not mean the mechanism will be easy to find later when the consumer wants to cancel, and therefore will not prevent unreasonable barriers to cancellation. Thus, providing the information necessary to find the cancellation mechanism at enrollment (as required under § 425.4) does not discharge the seller's obligation to ensure cancellation is easy to find when most relevant to the consumer.
The State AGs asked the Commission specifically to address the requirements for cancellation by chat, text messaging, and email. The State AGs explained that although chat and text are increasingly common cancellation mechanisms, they share some of the same qualities and potential problems as telephone cancellation because they require interaction with a live or virtual customer representative.
To address these concerns, the Commission revises the proposed provision to refer to “interactive electronic medium” rather than “internet.” This change clearly includes text, chat, and email within the scope of online cancellation mechanisms.
Although the State AGs suggested prohibiting the use of email as a cancellation mechanism, the record provides no basis for doing so. Further, consistent with the Commission's definition of interactive electronic medium, several States specifically allow sellers to use email as an online cancellation method.
The State AGs noted, and consumer comments further support, the fact that sellers have often used chat, text, and messaging to perpetrate the same abuses documented for telephone cancellation. The Commission, therefore, reiterates all cancellation mechanisms, including chat, text, messaging, and email, are subject to the same “simple” requirements,
Consumer comments, as well as the Commission's and State AGs' enforcement experience demonstrate asymmetrical enrollment and cancellation experiences, such as requiring telephone cancellation when consumers can easily sign up online without speaking with an agent, are unfair. Specifically, this asymmetry creates unreasonable barriers to cancellation, such as unreasonable hold times, unreasonable verification requirements, and aggressive save tactics. Moreover, comments and the Commission's enforcement experience indicate consumers likely understand a simple online enrollment experience as an implied claim that the cancellation experience also will be simple.
Finally, the Commission declines to exclude industries providing bundled services from the same medium requirement. NCTA and other industries with such services insisted their customers are better served by speaking with a live representative, even when they enroll online.
NCTA's comment seems to suggest the simple cancellation mechanism requirement demands a certain asymmetry—specifically, no matter how complex online enrollment is, the proposed Rule would require a simple “one click” cancellation mechanism, which could preclude the seller from confirming cancellation intent or apprising consumers of negative consequences of cancellation. The Commission reiterates the simple cancellation requirement requires symmetry in terms of,
Further, existing verification procedures, such as two-factor authentication, are routinely used to ensure a consumer's identity in highly sensitive situations. Thus, they are more than sufficient to ensure the correct person is cancelling and do not require the use of a cancellation mechanism different than enrollment. Moreover, at this juncture, the Commission has removed the proposed “saves” provision from the final Rule, making communication regarding material consequences of cancelling easier to convey (so long as communicating through the same medium).
The Commission adopts the telephone cancellation provision as proposed, except the final Rule removes the requirement sellers must assure all calls are answered during normal business hours. Instead, the final Rule requires sellers to promptly effectuate cancellation requests by consumers via a telephone number that is answered or records messages during normal business hours.
Several commenters suggested specific changes were necessary to enhance the proposed telephone medium requirements. For instance, the State AGs asked the Commission to include the various requirements detailed in the 2021 Enforcement Policy Statement,
Nonetheless, several commenters correctly pointed out requiring sellers to answer cancellation calls during normal business hours could create considerable costs for small businesses while not directly addressing the core problem identified by the Commission—the unreasonable delay of cancellation requests. To address these concerns, the Commission first clarifies normal business hours are those hours in which the business would normally engage with its customers. A seller, however, cannot make telephone cancellation available only at times that are so inconvenient they erect a barrier to cancellation. For instance, it would be improper to limit cancellation calls to only between midnight and 3 a.m., regardless of whether these are the seller's normal business hours. Importantly, however, the final Rule does not require a seller to physically answer the telephone call (a task that could be difficult for,
Notably, the final Rule retains the requirement that, for the mechanism to be at least as simple as the one used to initiate the recurring charge, any cancellation call cannot be more expensive than the call used to enroll (
Based on the Commission's experience and that of other States, as well as many comments in the record, requiring in-person cancellation presents significant opportunities for unfair and deceptive practices. To prevent such practices, the final Rule adopts provision 425.6(c)(3) essentially as proposed. Thus, the provision continues to require in-person sellers to provide alternatives to in-person cancellation, either online or by phone, at the seller's choice. The Commission, however, corrects the requirement that if the alternative is a telephone call, the call cannot be more costly than the in-person consent. That proposal connected two unrelated costs and thus did not make logical sense. To effectuate the purpose of this provision, however, the Commission adds language stating the call cannot impose any cost that creates an unreasonable barrier to cancellation, including by making the call unreasonably expensive.
To address ICA's concerns, the Commission clarifies the Rule does not require sellers who sell in-person to maintain an alternative online presence to process cancellations. Sellers who have no such presence can allow cancellations by phone if they comply with the simple telephone cancellation requirements detailed above.
Proposed § 425.6(d) would have required sellers to immediately effectuate cancellation unless they obtained the consumer's unambiguously affirmative consent to receive a save prior to cancellation. The Commission explained the record shows many businesses have created unnecessary and burdensome obstacles to cancellation, including forcing uninterested consumers to sit through multiple upsells before allowing them to cancel.
However, other commenters explained some of the “barriers” consumers complained about are necessary to prevent harm, at least in certain situations. Specifically, commenters noted consumers might not understand the negative consequences of cancellation,
Based on the record, the Commission determines revisions to this proposed provision are necessary, for which the Commission would need to seek additional comment. Therefore, the Commission does not adopt this provision in the final Rule at this time. On one hand, the record demonstrates saves are often used simply as a barrier to prevent cancellations.
Consequently, the proposed saves provision did not achieve the right balance between protecting consumers from unfair tactics and allowing sellers to provide necessary and valuable information about cancellation. Therefore, the Commission will consider issuing an SNPRM in the future seeking a better solution to this difficult problem.
However, the Commission notes the removal of the saves proposal is not a license to erect unreasonable and unnecessary barriers to cancellation. The final Rule requires sellers to provide a simple, easy to use cancellation mechanism. Save attempts that interfere with this mandate by requiring consumers to navigate through upsells, jump through unreasonable hoops, or wait unreasonable amounts of time to cancel are neither simple nor easy.
In the NPRM, the Commission proposed requiring sellers to provide an annual reminder to consumers for non-physical goods sold with a negative option feature. Under this proposal, reminders would have needed to identify the product or service, the frequency and amount of charges, and the means to cancel. Additionally, the proposal required Negative Option Sellers to provide the reminders through the same medium the consumer used to consent to the negative option feature. The Commission opined the delivery of physical goods may remind consumers they enrolled in a negative option feature. Therefore, these consumers effectively already receive reminders and can reasonably avoid further payments by canceling their subscription. For services lacking a regular, tangible presence (
The Commission received 32 comments in response.
Only three commenters specifically requested the Commission jettison a reminder provision altogether. Specifically, ESA argued the requirement (1) would impose a significant burden on businesses because several State laws already require reminders or notices; (2) would be improper because the Commission did not raise reminders in the ANPR; and (3) would increase the overall number of notices consumers receive, which could result in consumers ignoring reminders, thus benefiting bad actors. NCTA suggested the Commission should instead “allow businesses flexibility to determine whether to provide reminders.”
Several commenters, while not urging the Commission to reject the reminder requirement, suggested the NPRM proposal did not satisfy the unfairness test. For instance, CTA, a technology trade association, questioned whether there was sufficient basis to find a lack of annual reminder is an unfair practice or causes consumer harm.
A few commenters asked to be exempted from the reminder requirement based on the nature of their industries or the frequency of existing notices.
Several commenters questioned the proposed requirement that sellers provide the annual reminder through the same medium the consumer used to consent to the negative option feature.
Additionally, several commenters disagreed with the Commission's observation that agreements involving delivery of physical goods inherently create a “regular, tangible presence” that serves as a reminder of the contract.
Some commenters stated that, without Federal preemption, the annual reminder requirement would create another layer of regulatory complexity because several State laws already require reminders or notices.
Several commenters suggested the Commission amend the proposal. For instance, TINA and several individual consumers recommended the Commission require reminders at the end of a free trial period.
In contrast, other commenters noted consumers may suffer from “notice fatigue” given the increasing popularity of subscription services.
Finally, several commenters asked the Commission to clarify certain aspects of the reminder requirement. For instance, ANA asked the Commission to explain what constitutes the “same medium,” and a group of law professors asked for more detail about what constitutes an adequate telephone reminder.
After reviewing these comments, the Commission determines it needs additional information on the scope and particularities of the proposed annual reminder requirement. The record suggests, given the proliferation of subscription and auto-renewal services, consumers have difficulty tracking all the negative option services and products in which they may be enrolled—so much so that there are now companies claiming to help consumers keep track of these services for a fee. As one commenter noted, consumers should not have to sign up for yet another service to manage all their subscriptions.
Additionally, the Commission shares some commenters' concerns that consumers may ignore these reminder calls. Further, as some commenters noted, the proposed provision does not specify the timing for these reminders (
In its NPRM, the Commission proposed that amendments to the Rule would not affect State laws, regulations, orders, or interpretations relating to negative options, except to the extent they are inconsistent with the final Rule, and then only to the extent of the inconsistency. A State provision would not be “inconsistent” with the proposed Rule if it affords any consumer greater protection than the Rule.
The Commission received a range of comments in response. On one end, a commenter opined the “FTC cannot preempt existing [State] laws,” so it should instead strive for “harmonization and consistency with existing laws.”
Other industry groups and individual businesses supported preemption in various ways. For example, CTA argued the Rule should “preempt [S]tate laws with differing requirements.”
NRF said the Rule should “preempt any [S]tate law requirements that contradict or are inconsistent with the Rule . . . to the extent of the inconsistency.”
Several industry groups expressed concern regarding potential confusion about preemption. For example, ACA Connects asserted it “may be unclear whether and to what extent [a particular State law offers] `greater' or `lesser' protection than [the proposed Rule]” and asked for more guidance generally or for a process that lets interested parties ask the Commission if a
Finally, a group of law professors supported the Commission's proposed Rule. They noted “more than half of [S]tates . . . regulate some negative option marketing practices,” and said the Commission “does not occupy the field or displace non-conflicting [S]tate [laws].”
Having considered the foregoing comments, the Commission will streamline the text of the final Rule for clarity and efficiency, while maintaining the substance of the proposed Rule's proposed preemption language (renumbered in the final Rule as § 425.7). The FTC Act does not expressly preempt State law, and the legislative history of the FTC Act indicates Congress did not intend the FTC to occupy the consumer protection regulation field.
Therefore, § 425.7 of the final Rule specifies the Rule does not supersede, alter, or affect State statutes, regulations, orders, or interpretations relating to negative option marketing, except to the extent a State statute, regulation, order, or interpretation is inconsistent with the Rule. The final language also continues to make clear State requirements are not inconsistent with the Rule to the extent they afford greater protection to any consumer. The manners in which a State law may provide greater protection are many. For example, a State law that requires sellers to remind consumers at the end of a free trial that they are about to be billed would provide greater protection to consumers and not be inconsistent with the Rule.
The NPRM sought comment on whether the Rule should exempt any entities or activities that are otherwise subject to the Commission's authority under the FTC Act.
The Commission adopts a new section, § 425.8. Pursuant to this provision, and consistent with the Commission's Rules of Practice, sellers and other covered persons may seek full or partial exemptions if they can demonstrate application of the Rule's requirements to a particular product or service, or class of product or service, is not necessary to prevent the acts or practices to which the Rule relates.
One commenter, NFIB, asked the Commission to address severability in the Rule.
In the NPRM, the Commission sought comment on whether and how sellers should notify consumers when they make material changes to contracts with a negative option.
Five commenters responded.
In contrast, ESA, USTelecom, ACA, and IAB supported the Commission's proposal. IAB and ESA said it is “industry practice for subscription-based services and products to have regular price increases over time,” and consumers expect it.
Based on the record, the Commission does not require notice of material changes to contract conditions in the final Rule. The final Rule requires the seller disclose important information prior to charging the consumer. Such information includes all material terms, including,
Moreover, State laws have different predicate requirements (
Finally, as the Commission explained in the NPRM, whether a seller's failure to notify a consumer of material changes is unfair or deceptive could be heavily dependent on the particular facts and circumstances, such as the seller's upfront marketing claims. For example, based on a clear upfront agreement to allow periodic price increases, consumers may understand that firms can make small price increases over long periods of time. On the other hand, significant unilateral changes to the terms of the agreement, such as huge prices increases over short periods of time would probably be inconsistent with reasonable consumer expectation, and therefore, deceptive or unfair. Because the determination of whether a practice runs afoul of section 5 in this context is highly fact dependent, the Commission declines to address it at this time. Nevertheless, the Commission will continue to monitor the need for such a requirement and will continue to bring enforcement actions when appropriate.
The Commission solicited comments on alternative approaches such as additional consumer and business education, and received two comments in response.
Several industry groups and one individual commenter asked the Commission to delay the final Rule's effective date. Three commenters sought a delay of at least 12 months or up to 18 months, citing generalized concerns that changes can take time “given the complexities” of the proposed Rule.
None of the commenters identified a precise period it would take to comply with a specific provision or otherwise detailed what would necessitate a particular length of time.
The Commission recognizes changes to processes and disclosures typically require some time to address and has regularly provided a grace period for implementation of its rules.
The Commission recognizes the remainder of the final Rule may require some businesses to implement or modify systems, software, or procedures. As detailed in the NPRM, however, the existing legal landscape already includes a patchwork of relevant Federal laws and regulations in
Moreover, the Commission has streamlined the final Rule, significantly reducing the compliance burdens. Specifically, for reasons detailed in section VII, above, the final Rule omits or modifies proposed requirements that gave some commenters particular concern. Most notably, the Commission omitted the entire annual reminder and saves requirements. As commenters pointed out, these two sections imposed the greatest compliance burdens on sellers.
Similarly, other modifications should clarify and streamline requirements, making compliance easier. For example, the final Rule eliminates certain recordkeeping requirements.
The Law Professors suggested the Commission include an “anti-abuse” provision to provide a mechanism for enforcement against sellers' attempts to evade the Rule.
Pursuant to the Congressional Review Act, 5 U.S.C. 801
Under section 22(a) of the FTC Act, 15 U.S.C. 57b-3(a), the Commission must issue a preliminary regulatory analysis for a proceeding to amend a rule if the Commission: (1) estimates that the amendment will have an annual effect on the national economy of $100 million or more; (2) estimates that the amendment will cause a substantial change in the cost or price of certain categories of goods or services; or (3) otherwise determines that the amendment will have a significant effect upon covered entities or upon consumers. Although the Commission preliminarily determined the proposed amendments to the Rule would not have such effects on the national economy; on the cost of goods and services offered for sale by mail, telephone, or over the internet; or on covered parties or consumers, several commenters raised concerns with the Commission's preliminary determination. Ultimately, the presiding officer determined, after receiving additional comments from interested stakeholders, the proposed amendments would have such effect.
Under section 22 of the FTC Act, 15 U.S.C. 57b-3, the final regulatory analysis must contain (1) a concise statement of the need for, and objectives of, the final rule; (2) a description of any alternatives to the final rule which were considered by the Commission; (3) an analysis of the projected benefits, any adverse economic effects, and any other effects of the final rule; (4) an explanation of the reasons for the determination of the Commission that the final rule will attain its objectives in a manner consistent with applicable law and the reasons the particular alternative was chosen; and (5) a summary of any significant issues raised by the comments submitted during the public comment period in response to the preliminary regulatory analysis, and a summary of the assessment by the Commission of such issues.
The Commission received comments from trade associations regarding the preliminary regulatory analysis in the NPRM, and three presented testimony and expert reports at the informal hearing. Comments and testimony, including reports submitted by experts, were largely conclusory in nature.
As discussed previously, the objective of the proposed amendments is to curb deceptive or unfair negative option practices . The legal basis for the proposed amendments is section 18(a)(1)(B) of the FTC Act, which provides the Commission with authority to issue “rules which define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce.”
As described in this SBP, the amendments address unfair or deceptive negative option practices. The FTC, other Federal agencies, and State attorneys general have brought multiple administrative and judicial actions to stop and remedy harmful negative option practices. The record demonstrates, however, that existing legal authorities fall short because they leave consumers unprotected from certain practices and constrain the relief the Commission may obtain for law violations to redress consumers and deter future unlawful activity. In the ANPR and NPRM, the Commission explained it receives thousands of consumer complaints a year related to negative option marketing.
As discussed above in sections III-VII, the final Rule clarifies existing requirements regarding negative option marketing currently dispersed in other rules and statutes administered by the FTC and provides a consistent legal framework across media and offers. It also consolidates all requirements, such as those in the TSR and ROSCA, specifically applicable to negative
In formulating the final Rule, the Commission makes every effort to avoid imposing unduly burdensome requirements on sellers. To that end, the Commission avoids, where possible, proposing specific, prescriptive requirements that could stifle marketing innovation or otherwise limit seller options in using new technologies. In the NPRM, the Commission sought comments on several alternatives, including provisions related to consent requirements (additional consent for free trials) and reminder requirements (narrowing the scope of product types requiring reminders). The Commission also sought comments on how it could modify the proposed amendments to reduce costs or burdens for small entities. In response to the comments, and as discussed in the section-by-section analysis, the Commission determines not to finalize the proposed Rule in its entirety. Instead, the Commission finalizes a Rule that limits the material terms to be disclosed immediately adjacent to consent for the negative option feature; removes the limitation on saves and the accompanying recordkeeping requirement; removes the annual reminder provision; and modifies the length of the recordkeeping requirement for verification of consent to three years and provides an alternative method of compliance.
One alternative to the final Rule would be to terminate the rulemaking and rely instead on the existing legal framework to combat unfair or deceptive negative option practices. Another alternative would be to limit the scope of the final Rule to just those negative option plans that are marketed in person or through the mail and therefore, currently, are covered only by section 5 of the FTC Act and not by ROSCA or the TSR. However, failing to proceed in accordance with the final Rule would substantially reduce or eliminate the benefits of the Rule, including clarifying the requirements currently spread throughout statutes and regulations and covering negative options in media not subject to the TSR or ROSCA.
Given that the Commission expects the unquantified benefits and unquantified costs of the final Rule to be small, and that there is considerable scope for the net benefits to remain positive and large even if compliance costs have been substantially underestimated, this regulatory analysis indicates that adoption of the Rule will result in benefits to the public that outweigh the costs.
The primary consumer benefits of the final Rule, relative to the existing regulatory baseline,
The final Rule requires negative option sellers to provide cancellation mechanisms that are at least as easy to use as the mechanisms by which consumers consent to negative option plans. For negative option sales made online or over the telephone, “at least as easy to use” requires that the cancellation mechanism operate in the same medium and take no more time or effort than the consumer used when enrolling in the negative option plan. For negative option sales that are made in-person or through the mail, the final Rule requires that, in addition to offering cancellation through the specific method used for enrollment, the seller must also offer at least one alternate cancellation mechanism that can be used remotely,
In the following analysis, the Commission describes the anticipated effects of the final Rule. Where possible, it quantifies the benefits and costs. If a benefit or cost is quantified, it indicates the sources of the data relied upon. If an assumption is needed, the text makes clear which quantities are being assumed. The Commission measures the benefits and costs of the Rule against the existing regulatory baseline that consists primarily of ROSCA, the TSR, and section 5 enforcement.
First, the likely per-cancellation benefits of the final Rule in relation to four scenarios under the existing regulatory baseline are considered. Next, the number of transactions relevant to each scenario are estimated. The product of average benefits-per-cancellation in each scenario multiplied by the likely number of consumer cancellation transactions for each scenario, summed across all scenarios, provides an estimate of the aggregate, quantifiable, consumer benefits produced by marketers' compliance with the final Rule's cancellation requirements. Quantifiable costs primarily reflect the resources spent by businesses to review the Rule and to take any preemptive or remedial steps to comply with its provisions, including, when and as needed, making changes to the manner they receive and process cancellation requests from consumers.
The Commission estimates the present discounted value of quantified benefits over ten years, using a 2 percent discount rate, will range between $6.1 and $49.3 billion. Annualized over 10 years, the Commission estimates the quantified benefits will range between $682.8 million and $5.5 billion per year. The Commission estimates the present discounted value of quantified costs over ten years, using a 2 percent discount rate, will range between $100.9 and $826.2 million. Annualized over ten years, the Commission estimates the quantified costs will range between $11.2 and $92.0 million per year. These estimates are presented in Table 1 below.
This section describes the beneficial impacts of the Rule, provides quantitative estimates where possible, and describes benefits that are only assessed qualitatively.
The quantifiable estimates reflect benefits stemming from the decreased amount of time and effort consumers will need to expend cancelling subscriptions, and in contexts where data are available, welfare gains from avoided expenditure for unwanted subscriptions, under the final Rule relative to marketers' compliance with the existing regulatory baseline. This section first estimates per-consumer savings from cancellation mechanisms that would become at least as easy to use as the mechanisms through which consent to the negative option transactions was given and then estimates the number of cancellation transactions to which those benefits apply.
In addition to these quantified benefits, there are several benefits we do not quantify. First, marketers' compliance with the final Rule is likely to improve consumer confidence in using subscriptions
Compliance with the final Rule may also result in some allocative effects when consumers can cancel online instead of by telephone. In such cases, consumers will be able to cancel subscriptions at times of the day that may be more convenient to them than the hours that subscription sellers staff their telephone lines and from devices that they find more convenient to use than telephones.
Finally, the Commission's estimates of quantified benefits are based on reductions in time and effort from cancelling subscriptions to non-business consumers. The Commission expects small businesses may also benefit in similar ways from less costly cancellations, but it does not quantify such benefits due to lack of data on business cancellation transactions.
The following subsections then estimate the quantified benefits from reductions in time and effort from cancelling subscriptions. First, in subsection (1), the Commission estimates the per-cancellation benefit relative to the regulatory baseline for (i) online cancellation when only ROSCA-compliant telephonic cancellation was available, (ii) simpler online cancellation when only ROSCA-compliant online cancellation was available, (iii) simpler telephone cancellation when only TSR-compliant cancellation was available, and (iv) online or telephone cancellation when only in-person or mail cancellation was available. The Commission then estimates the number of cancellation transactions in subsection (2), and finally calculates benefits as the per-cancellation benefit in each scenario multiplied by the number of affected transactions in subsection (3).
For each of the four scenarios below, the Commission estimates a range of benefits that a consumer will gain each time they cancel a negative option subscription. In these scenarios, the Commission assumes a final Rule-compliant online cancellation should take no more than 30 seconds to one minute, based on the Commission's experience that the average time for consumers to read required disclosures and provide consent to a negative option plan online is 30 seconds to one minute. For telephone cancellations under the final Rule, the Commission assumes that a rule-compliant cancellation should take no more than one to two minutes, based on the assumption it takes a telemarketer twice as long to read required disclosures to a consumer as it would take a consumer to read such disclosures to his or herself online.
For consumers enrolling in negative option plans online, the existing regulatory baseline, ROSCA, requires marketers to provide “simple” cancellation mechanisms. A facially ROSCA-compliant, “simple” telephonic cancellation may, nonetheless, require more time and effort from consumers than was expended when enrolling in the negative option plan. Online subscription sellers' compliance with the final Rule will save consumers that extra measure of time and effort.
To estimate the average time savings to consumers of a final Rule-compliant “click-to-cancel” mechanism compared to a ROSCA-compliant simple telephonic cancellation, this analysis first assumes that ROSCA-compliant simple telephonic cancellations take no more time than the “average handle time” for all customer service requests made to call centers, which an industry source indicates is six minutes and three seconds.
The Commission then assumes consumers, on average, value their non-work time at 82% of the mean hourly wage of $31.48, or $25.81 (
For online cancellations of online-entered subscriptions, the Commission lacks a source of average cancellation times presumed to be ROSCA-compliant that is as comprehensive as that used for the average handle times of call centers. The Commission relies, instead, on an experiment that involved signing up for 16 online subscriptions between August 2 to October 4, 2022, then canceling each one, and recording the time it took to cancel, as well as the variety of other obstacles faced in canceling.
Based on the Commission staff's experience, the average time needed to read the required disclosures and provide consent to a negative option feature is 30 seconds to one minute. An online cancellation that took no longer than the provision of online consent would therefore save the consumer between one minute and four seconds and one minute and 34 seconds. Valuing consumers' time at $25.81 per
For consumers enrolling in negative option plans via telemarketing, the existing regulatory baseline is the TSR. The TSR does not specify a performance standard specific to negative option cancellations. Although egregious cancellation delays can be pleaded against telemarketers under § 310.3(a)(1)(vii) (requiring disclosure of all material terms and conditions of the negative option feature) or § 310.3(a)(2)(ix) (prohibiting misrepresentation directly or by implication of any material aspect of a negative option feature), the final Rule's requirement that the cancellation mechanism be at least as easy to use as the consent mechanism provides cancellation-specificity to negative options sold through telemarketing that is lacking under the existing regulatory baseline. Because telemarketers have substantial discretion in designing and implementing consent processes specific to their programs, telemarketers will have a clear benchmark for the speed with which they must complete a final Rule-compliant cancellation.
As described at the beginning of this subsection, the Commission assumes it takes telemarketers between one and two minutes to read the required disclosures to consumers and receive their consent for enrollment in a negative option plan. Using the same average handle time measure of six minutes and three seconds used a previous scenario to proxy for baseline time spent for a telephonic cancellation, the Commission assumes the final Rule will save consumers who consent to a negative option sale via telemarketing, and cancel in the same manner, between four minutes and three seconds and five minutes and three seconds. Evaluating that time saving in the same manner as above, compliance with the final Rule results in a per-cancellation time saving that is worth between $1.74 (
Some sellers market negative option plans in ways that are not covered by ROSCA or the TSR. Those that involve in-person enrollment and only offer in-person or mail cancellation, in particular, may be highly burdensome to consumers. The final Rule requires sellers who offer in-person enrollment to offer at least one alternate cancellation method that consumers may use remotely,
Providing consumers with an alternative to in-person cancellations will give consumers a faster route to cancel a subscription and may also spare some consumers from incurring additional recurring charges which might accrue during the pendency of a slow cancellation mechanism, enabling consumers to reallocate their spending power in directions of greater utility, resulting in allocative efficiencies.
Unlike negative option transactions entered into online (ROSCA) or by telephone (TSR), the Commission lacks comprehensive experience with negative option plans that require cancellation in person or through the mail. However, because many gym/fitness center/health studio memberships (hereafter, “gym memberships”) are sold via negative options
As noted in the comment submitted by comment filed by IHRSA,
Notwithstanding IHRSA's assertion that many fitness clubs offer online cancellation, at least 25 individual consumers submitted comments attesting to the difficulties of canceling gym memberships. Some wrote in general terms of the difficulties consumers experience in canceling such memberships as something that contributed to their support for the Rule.
• “What seems more troublesome tend to be stuff like gym memberships.”
• “I work dispute resolutions for a bank. I see so many cases where someone is trying to cancel something like a gym membership and, while they can sign up in person, they for some reason have to mail a certified letter to the companies (sic) home office.”
• “I have experienced so much frustration ending memberships with gyms, online subscriptions, etc. over many years and welcome help in this matter. So many friends I speak to share similar stories of how they were roped into paying for longer memberships and subscriptions that they no longer wanted.”
• “Many places, like [specific fitness center chain], require you to go in person to cancel—they won't even let you do it over the phone! This harms anyone that may have trouble leaving the house regularly, including disabled folks and parents of small children and those caring for older or ailing family members, not to mention being horribly inconvenient for everyone else.”
Many others conveyed personal experiences with burdensome gym membership cancellation. The Commission relies upon these comments to estimate the high-end of the range of quantifiable benefits that the final Rule will provide to consumers who purchase negative option plans in-person. Examples of these include:
• “I had to write a letter and physically mail it to cancel a gym membership I singed [sic] up for on an iPad.”
• “Recently it took me three days and several hours to cancel a gym membership (that) had taken less than 20 minutes to join, on line [sic].”
• “I had to go in person 3 different times because the manager wasn't there so [sic] to cancel it.” This consumer attached a screen shot of the gym's cancellation policy, which read, in part, “There is no contract and you are free to cancel your Direct Debit at any time. If you do decide to cancel your membership, you must allow at least 7 days before the fifth of the month to ensure your payment is cancelled and advise Reception of the cancellation.” Both “(a)t
• “Years ago, I had signed up for a gym membership, and after a change in job situation, was no longer able to make use of it. Repeated attempts to reach the gym membership department and cancel my membership went unheeded—a [sic] got a classic runaround, and as often forwarded to unattended phone numbers—and I kept racking up monthly bills for a membership I didn't want . . . . It was only through a personal relationship with someone who worked in the corporate office that I was finally able to get past their automatic renewals and effect a cancellation.”
• “We wanted to cancel the [gym] membership, but when we called and emailed, we were told we couldn't cancel that way. We had to send a certified letter or go in person. We have gone in person twice to try to cancel or [sic] membership and it has been a nightmare.”
• “Personally, I have been impacted by my local gym's undisclosed policies and shady cancelation policies that have costed me hundreds of dollars.”
• “They bill you monthly for your gym membership but when you want to cancel your membership that's when the problems arise. You cannot do it over phone or on their website. You have to go into the gym personally to cancel said membership. Not only that I was told that I'd have to go to the gym [home gym] where I signed up in order to cancel membership. I could only imagine what this would be like had I moved out of the state. Please help us stop these practices.”
• “I am currently trying to cancel a gym membership and have been overwhelmed by how difficult it has been . . . . I just called my gym . . . and the pre-recorded automated answering message literally says there is no direct line to the gym! That's outrageous!!!”
• “My personal experience is with my gym membership . . . . Getting out of it was terrible, and I'd hate to see it happen to anyone else.”
Based on these comments, the Commission makes the simplifying assumption that the worst gym membership cancellation experiences involve three failed attempts at cancellation, each costing one hour of time, and that, because of those cancellation failures, three unwanted monthly charges were processed. The Commission assumes a fourth cancellation attempt, also costing one hour of time, succeeds in halting the recurring payments.
As above, the Commission values consumers' time at $25.81/hour. The typical gym membership costs between $40 and $70 a month.
Table 2 presents a summary of the per-cancellation benefit the Commission estimates would result from this final Rule. For subscriptions that are currently cancelled over the phone but would be cancelled online under this final Rule, the Commission estimates
The Commission regards “consumers” for the purposes of this analysis as the U.S. population over the age of 18;
Because negative option sales are a form of marketing of goods and services, and not an industry or type of output, and because no occupational category is uniquely associated with negative option marketing, no publicly produced data source, such as the Economic Census, tracks the use of negative option marketing in the United States. Accordingly, the Commission must look to other data sources, to estimate the number of subscription cancellations and the channels through which consumer consent was obtained and cancellation mechanisms provided.
To estimate the aggregate number of consumer cancellation transactions, the Commission relies upon a credible source that found that, as of mid-2023, 83% of American consumers had at least one subscription.
To estimate the total number of subscriptions held by U.S. consumers the Commission looks to data on the average number of subscriptions per subscriber. One source, relying upon a large sample of U.S. consumers conducted in late 2023 and early 2024, reported, “[t]he average subscriber now has 4.5 subscriptions.”
The Commission next considers how many subscriptions consumers may want to cancel. To do so, we look to subscription “churn,” or cancellation, rate data. Churn rates can reflect intentional cancellations as when a consumer completes a merchant's cancellation process, but can also reflect involuntary or passive cancellations, which occur when the payment mechanism the consumer has on file with the merchant is unable to be processed by the merchant.
One source reports an aggregate measure of voluntary
As discussed in the estimates of per-cancellation benefits, the estimated per-cancellation benefits stemming from the final Rule depend on the regulatory baseline cancellation methods relative to those that would be made available under the final Rule. To determine the number of cancellations for which the four categories of per-cancellation benefits estimates would apply, the Commission uses data on its enforcement experience to determine the share of cancellations likely to occur through online and telephone methods. For cancellations of subscriptions that are enrolled in person, the Commission uses data on gym membership cancellations as a proxy.
As a proxy for the number of subscriptions entered into in person, the Commission uses a report from Renew Bariatrics that claims 19 percent of the U.S. population are members of gyms or health clubs.
The Commission acknowledges several limitations with this proxy. To begin, there are likely many other types of businesses, such as car washes, lawn care, pest control, and personal care and grooming establishments, that may offer in-person subscription enrollment. To the extent these subscriptions are not included in the count, the estimates may be understated. Further, the source that states 19 percent of the population are members of gyms does not specify the age distribution of the gym members. The Commission has assumed children and adults are distributed uniformly across that 19 percent; however, if adults are more likely to have gym memberships than children, the estimates of gym memberships and cancellations among adults will be understated. On the other hand, gym memberships are not always individual memberships; multiple family members may share a single-family membership. In estimating the number of gym memberships and cancellations, the Commission has assumed each adult gym member has their own subscription, which may overestimate the number of subscriptions and cancellations.
The Commission assumes all subscriptions that are not entered into in person are instead entered into either online or over the phone. Subtracting the in-person subscription, as proxied by gym membership cancellations, from the total number of cancellations, the Commission estimates 347.08 million subscriptions entered into either online or over the phone will be canceled in the first year of this Rule. This number would increase to 369.27 million cancellations in Year 10.
To estimate the distribution of cancellation methods for these subscriptions that are entered into online and over the phone, the Commission reviewed matters it has brought and resolved
Online
Multiplying the distribution of cancellation methods for subscriptions entered into online and over the phone by the total number of cancellations of online and telephone subscriptions, the Commission estimates the annual number of cancellations that fall into each of these categories. In Year 1, the Commission estimates that, in the absence of this final Rule, there would be 231.39 million cancellations by telephone of subscriptions entered into online, 38.56 million online cancellations of subscriptions entered into online, and 77.13 million telephone cancellations of subscriptions entered into over the phone.
Table 4 provides the number of subscription cancellations each year distributed across the four enrollment and regulatory baseline cancellation method categories: online enrollment and telephone cancellation; online enrollment and online cancellation; telephone enrollment and telephone cancellation; and in-person enrollment.
To estimate total benefits from this final Rule, the Commission first matches the enrollment and baseline cancellation method categories from the previous section to the four scenarios used to estimate the per-cancellation benefit. The Commission assumes that, under this final Rule, subscriptions enrolled online and cancelled over the phone in the baseline would move to online cancellations; subscriptions enrolled online and cancelled online would move to simpler online cancellation; subscriptions enrolled over the phone and cancelled over the phone would move to simpler telephone cancellation; and subscriptions enrolled in person would allow online or phone cancellation.
Next, the Commission multiplies the number of cancellations in each baseline category by the matched per-cancellation benefit on the low- and the high-end and then sums across all four categories to obtain total benefits each year. Those totals are presented in Table 5. In the first year following implementation of the final Rule, the Commission estimates the benefits will
This section describes the costs associated with firms coming into compliance with the final Rule, provides quantitative estimates where possible, and describes costs that are only assessed qualitatively. Whereas benefits were estimated based on cancellation transactions, compliance costs are estimated on the basis of firms covered by the final Rule. The Commission first examines the comment record on compliance costs and then estimates the compliance costs for the initial year and subsequent nine years following implementation of the final Rule.
The comment record has not provided specific data useful to the estimation of the costs of compliance with the disclosure, cancellation, and recordkeeping requirements of the final Rule.
Some industry commenters addressed compliance costs by providing broad, aggregate, conclusory cost estimates; because those costs were not itemized by specific features of the Rule as proposed in the NPRM, the Commission is unable to use those comments to estimate compliance costs relevant to the substantially narrowed scope of the final Rule in comparison to the Rule proposed in the NPRM.
Another commenter addressed the Paperwork Reduction Act cost estimate in the NPRM in a way that conflated it with the totality of compliance costs. IFA, which represents firms, including small firms, in the fitness, preventative healthcare, personal wellness or children's extracurricular activities industries, commented, “the FTC's estimate (in the NPRM) that it will cost companies merely three hours annually at $22.15/hr to comply is grossly understated for IFA's members.”
IFA did, however, comment that many of its members already offer consumers the ability to pause or “freeze” memberships, noting, “consumers take advantage of alternatives to membership cancellation at rates of 10% to 40%, with many consumers electing to reactivate their memberships, saving thousands of dollars annually in increased membership rates and additional initiation fees.” While pause/freeze capabilities are indeed beneficial to consumers, they do not relieve a firm from an obligation to offer a cancellation mechanism. IFA did not provide similar data on what percentage of its member firms' consumers are dissatisfied with pause/freeze opportunities and seek authentic cancellations or what cancellation mechanisms its member firms make available to consumers.
The technological capability to pause or freeze subscriptions suggests the presence of software architecture “scaffolding” upon which a cancellation mechanism could be built at a modest incremental cost. Alternatively, the offering of subscription pauses or freezes by some IFA members may suggest those members use the services of third-party e-commerce hosting platforms or payment processors who routinely provide consumer subscription account management tools relied on by businesses, including small businesses. As discussed, below, existing software scaffolding and the utilization of third-party consumer subscription management tools can facilitate low- (and even no-) cost compliance with some of the final Rule's requirements.
The Commission has previously estimated that 106,000 firms offer negative option plans.
For online marketers, the current regulatory baseline is ROSCA, which requires marketers to clearly and conspicuously disclose all material terms of the transaction before obtaining the consumer's billing information. To the extent ROSCA-covered marketers' current disclosures lack the specificity required by the final Rule, the Commission estimates changes will be needed only to textual elements of such marketers' websites and that no changes to the underlying website architecture will be needed. The Commission further assumes any such changes, if needed, will be made by website developers, whose mean hourly wage is $45.95.
Accordingly, the Commission estimates that for those marketers whose disclosures are not already in compliance with the requirements of the final Rule, disclosure compliance costs will range between $45.95 and $459.50.
When consent is provided over the telephone, the final Rule requires that telephonic cancellation must be available during normal business hours and not be more costly for the consumer to use than the telephone call the consumer used to consent to the negative option feature.
When consumer consent to a negative option plan is provided via an in-person method, the marketer must offer cancellation opportunities, where practical, in a like manner. In addition, the marketer must offer an alternative simple cancellation mechanism through an interactive electronic medium or by providing a telephone number that satisfies all final Rule requirements related to use of those cancellation media.
The costs negative option sellers will incur in the initial year following implementation of the final Rule to bring their cancellation mechanisms into compliance with the final Rule will depend upon their pre-existing cancellation mechanisms. No commenter provided research or data on the frequency of use of different cancellation mechanisms across negative option marketers or on the incremental costs to make the existing cancellation mechanism compliant with the requirements of the final Rule.
Because the comment record has not provided sufficient data to estimate the costs of compliance with the final Rule's cancellation requirements, the Commission turns to data from the U.K.'s “Impact Assessment” on regulating subscriptions there. Based on these sources, the Commission finds some sellers of negative option plans are already in compliance with the cancellation requirements of the final Rule, and many others will incur only minimal costs to make their cancellation flows compliant with the final Rule.
The relevant experimental research looked at the cancellation practices of 16 online subscription sellers, many of them large and well-known firms, and noted the cancellation mechanisms made available to consumers and how easy those mechanisms were for consumers to locate and use.
The experimental research found that 18.75% (
The same research found that 62.5% (
Lastly, the aforementioned research found that 18.75% (
Accordingly, the Commission assumes that most online marketers of negative option plans will face minimal IT costs of coming into compliance with the cancellation requirements of the final Rule.
As noted previously, telemarketers have substantial control over both how long the consent process takes and how long it takes a consumer to complete a cancellation over the telephone. If compliance with the final Rule expedites the cancellation process over the phone, telemarketers may experience cost-savings associated with such resources. Furthermore, no telemarketers or call centers that provide services to telemarketers submitted comments relating to what costs telemarketers would incur to bring cancellation mechanisms into compliance with the final Rule. Because of this, and because the Commission has previously found that only 2,000
Lastly, the Commission considers the initial year recordkeeping costs required by the Rule, which are estimated in section XIII to be $6.54 million when aggregated across all 106,000 firms.
Because of the aforementioned data limitations emerging from the comment record, the Commission applies the findings of the experimental research above, which looked only at online sellers, to the full number of firms, 106,000, that it has previously estimated to be marketers of negative option plans. This approach comports with a general proposition made by the report submitted by IAB.
Accordingly, the Commission makes the following estimates of initial year compliance costs.
The Commission notes that this analysis does not quantify costs for the firms selling negative option plans that offer only in-person or by-mail cancellation. The Commission assumes that, in complying with this final Rule, these firms will choose to provide the alternative cancellation method (by phone, online, or both) that makes the most economic sense. The Commission also assumes that the cost of processing a cancellation over the phone should be similar to or less than the cost of processing a cancellation in person or by-mail for these firms. Therefore, the Commission assumes that these firms will not incur significant compliance
Compliant disclosures, cancellation paths, and consumer-facing information about cancellation mechanisms will form a “template” that can be used without any incremental compliance costs as new subscription products are added to a marketer's retinue of products offered for sale via a negative option plan. The information relevant to the sale of a new product may be “dropped” into the template in a fill-in-the-blank way. The Commission assumes marketers, in the ordinary course of business, know what is required for the disclosures (
The Commission can seek redress or civil penalties for violations of the final Rule. Absent the final Rule, enforcement actions against unfair or deceptive negative option practices would be brought under section 5 where civil penalties are not available and where, post-
The U.K.'s “Impact Assessment” of its regulatory treatment of subscription plans did not estimate ongoing compliance costs because “the size of these costs . . . are likely small in comparison to the one-off cost and benefits.”
The experts' report submitted by IAB estimated 10 hours of attorney time for annual compliance checks for the Rule proposed in the NPRM. Because the final Rule has removed the most complex (and, therefore, costly) features of the proposed Rule (
Accordingly, the Commission estimates the aggregate annual costs of compliance checks to range between $0 and $44.97 million (
Table 7 presents the initial and recurring costs of this Rule in each year, as well as the present discounted value and annualized costs over 10 years using a 2 percent discount rate. The Commission estimates that in Year 1, the initial costs will range between $49.52 and $422.26 million. In each of the following years, the Commission estimates that the recurring costs will range between $6.54 and $51.51 million. The Commission estimates that the
As a sensitivity analysis, the Commission considers an alternative method that does not rely on data from historical enforcement matters for distributing subscription cancellations across the baseline cancellation methods used to estimate quantified benefits. This alternative method assumes the majority of subscriptions are enrolled online and can be cancelled online in the baseline; whereas, in the main analysis, the majority of subscriptions are enrolled online and can only be cancelled by phone in the baseline. Compared with the main analysis, this alternative method produces lower total quantified benefits by $419.77 to $449.53 million annualized per year, yet the estimated range of quantified benefits still exceeds the estimated range of quantified costs.
Under this sensitivity analysis, the Commission assumes that the baseline number of subscriptions and cancellations is the same as in the main analysis. The Commission also assumes the number of in-person subscriptions, as proxied for by gym memberships, is the same as in the main analysis. What differs here is the approach for determining the share of cancellations likely to occur through online and telephone methods.
The main analysis uses enforcement data to determine the share of cancellations likely to occur through online and telephone methods. This data may suffer from selection bias if, among other factors, only the more egregious violations are pursued through enforcement methods. This approach also assumes no marketers of negative option plans comply with this Rule in the baseline. Further, because the data only include resolved cases and resolved cases tend to be older, they are less likely to reflect the current state of the market.
In this alternative analysis, the Commission uses statistics discussed in the NPRM—that 106,000 firms offer negative option plans and 2,000 of those firms are telemarketers.
To estimate the distribution of baseline cancellation methods of subscriptions enrolled online, the Commission uses the results from an experiment in which a researcher consented to 16 online subscriptions between August 2 to October 4, 2022 and then canceled each one, recording the time it took to cancel along with a variety of other obstacles faced in cancelling.
Table 8 provides the number of subscription cancellations each year distributed across the enrollment and regulatory baseline cancellation methods: online enrollment and telephone cancellation; online enrollment and non-Rule-compliant online cancellation; online enrollment and Rule-compliant online cancellation; telephone enrollment and telephone cancellation; and in-person enrollment.
To estimate total quantified benefits under this sensitivity analysis, the Commission uses the same matching of enrollment and baseline cancellation methods to per-cancellation benefit estimates as in the main analysis. The only difference here is that the Commission assumes consumers who experience Rule-compliant online cancellations in the baseline will not see any additional benefit as a result of this final Rule.
As in the main analysis, the Commission multiplies the number of cancellations in each category by the matched per-cancellation benefit on the low- and the high-end and then sums across all five categories to obtain total quantified benefits each year. Those totals are presented in Table 9 below. In the first year following implementation of the final Rule, the Commission estimates the benefits under this sensitivity analysis will range between $254.85 million and $4.88 billion. In Year 10, the Commission estimates the benefits will range between $271.15 million and $5.20 billion. Using a 2 percent discount rate, the Commission estimates the present discounted value of benefits over 10 years to range between $2.36 and $45.28 billion. Annualized over 10 years using a 2 percent discount rate, the Commission estimates the benefits to range between $263.06 million and $5.04 billion per year. These annualized benefits estimates are between $419.77 and $449.53 million less per year than the estimates from the main analysis.
4.
As discussed above in sections I, II, and VII.A, the Commission determines the following deceptive or unfair practices are widespread in the negative option marketplace and cause consumer harm: (1) material misrepresentations made while marketing goods or services with negative option features; (2) failure to provide important information about material terms prior to obtaining consumers' billing information and charging consumers; (3) lack of informed consumer consent; and (4) failure to provide consumers with a simple cancellation method, including failure to honor cancellation requests, refusal to provide refunds to consumers who unknowingly enrolled in programs, denying consumers refunds and forcing them to pay to return the unordered goods, and requiring consumers to cancel using a different method than the one used to sign up for the program.
The final Rule amendments prohibit sellers from misrepresenting material facts in connection with promoting or offering for sale a good or service with a negative option feature, require negative option sellers to disclose certain important information about negative option features, obtain a consumer's express informed consent and maintain records of consumer consent for three years after the initial transaction (unless the seller satisfies
5.
Several commenters (
The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601-612, requires the Commission to conduct an Initial Regulatory Flexibility Analysis (“IRFA”) with a proposed rule and a Final Regulatory Flexibility Analysis (“FRFA”), if any, with a final rule, unless the Commission certifies the rule will not have a significant economic impact on a substantial number of small entities.
In the NPRM, the Commission provided an IRFA, stating its belief that the proposal will not have a significant economic impact on small entities, and solicited comments on the burden on any small entities that would be covered. Specifically, the Commission acknowledged it did not have sufficient empirical data to determine whether the proposed amendments may affect a substantial number of small entities; therefore, the Commission sought comment on the percentage of affected companies that qualify as small businesses.
The Commission reviewed and considered the comments in response to the NPRM and determined, as an alternative to finalizing the proposed Rule in its entirety, to modify the Rule. In particular, the Commission decided to limit the material terms to be disclosed immediately adjacent to consent for the negative option feature; remove the limitation on saves and the accompanying recordkeeping requirement; remove the annual reminder provision; and modify the length of the recordkeeping requirement for verification of consent by fixing it to three years and provide an alternative method of compliance. After careful consideration of the comments and following the Commission's determination not to finalize the proposed Rule in its entirety, the Commission certifies that the final Rule will not have a significant economic impact on a substantial number of small entities. Nevertheless, because the Commission included an IFRA in the NPRM, the Commission has also performed an FRFA below, and comments to the IFRA are discussed below.
The Commission describes the need for and the objectives of the final Rule in section X.B.1 to the Final Regulatory Analysis.
Several commenters raised issues about the proposed Rule's economic impact on small businesses. For instance, NFIB asked the Commission to adopt a special provision that would limit enforcement of the Rule against small businesses (fewer than 50 employees) to instances of willful or repeated violations, and set up a program for education on compliance.
Other commenters, including PDMI, ESA, Joint Small Business Digital Economy Innovators, and ICA, generally stated the proposed Rule would impose unnecessary and undue burdens on small businesses, but did not offer any detailed empirical data for the Commission to consider.
In response, the Commission first notes its sensitivity to small businesses' concerns. It provides numerous free resources through the Bureau of Consumer Protection Business Center web page
The Small Business Administration did not file comments in response to the proposed Rule.
The final Rule affects sellers, regardless of industry, engaged in making negative option offers, defined by the final Rule to mean any person “selling, offering, charging for, or otherwise marketing goods or services with a Negative Option Feature.”
The estimates of the recordkeeping requirements under the final Rule are set out within the Paperwork Reduction Act analysis in section XII below. As mentioned above, the Commission preliminarily determined the impact of the proposed requirements on small entities is most likely not significant. The small entities potentially covered by these amendments will include all such entities subject to the Rule (
In the NPRM, The FTC estimated the majority of firms subject to the recordkeeping requirements already retained these types of records in the normal course of business. The FTC anticipated many transactions subject to the final Rule would be conducted via the internet, minimizing burdens associated with compliance. Additionally, most entities subject to the final Rule were likely to store data though automated means, which reduces compliance burdens associated with record retention. Furthermore, regarding the disclosure requirements, the Commission stated it was likely the substantial majority of sellers routinely provide these disclosures in the ordinary course as a matter of good business practice. Moreover, many State laws already require the same or similar disclosures as the Rule would mandate. Finally, some negative option sellers are already covered by ROSCA and the TSR and thus subject to similar disclosure requirements.
Commenters provided additional comments, suggesting small businesses will be significantly impacted, and the Commission underestimated the burdens. Recordkeeping and disclosure costs associated with the Rule became one of the issues designated for the informal hearing, after which the presiding officer determined “the issue is not genuinely disputed,” noting the failure of interested parties to “provide any evidence to establish what the costs
In formulating the proposed amendments, the Commission made every effort to avoid imposing unduly burdensome requirements on sellers. To that end, the Commission avoided, where possible, proposing specific, prescriptive requirements that could stifle marketing innovation or otherwise limit seller options in using new technologies.
As explained above, in response to comments regarding regulatory burden, the Commission clarifies or modifies the Rule in several significant ways: (1) it defines “material” and provides several concrete categories of material facts to ensure businesses have a clear understanding of how it will interpret materiality under the Rule; (2) it limits the number of terms that must mandatorily appear “immediately adjacent” to the request for consent to the negative option feature; (3) it removes the requirement to obtain separate affirmative consent to “the rest of the transaction” and modifies the recordkeeping requirement; (4) it removes the saves and annual reminder requirements, which also should reduce recordkeeping and compliance burdens. Additionally, the Commission delays the effective date of the final Rule for 180 days to allow time for implementation (except for the provisions related to misrepresentations and other procedural requirements, which should not be an added burden
The Paperwork Reduction Act (“PRA”), 44 U.S.C. 3501
In the NPRM, the Commission provided time and cost estimates for the proposed Rule's recordkeeping and disclosure requirements, and solicited comments about their associated costs, including on: (1) whether the disclosure, recordkeeping, and reporting requirements are necessary, including whether the resulting information will be practically useful; (2) the accuracy of our burden estimates, including whether the methodology and assumptions used are valid; (3) how to improve the quality, utility, and clarity of the disclosure requirements; and (4) how to minimize the burden of providing the required information to consumers.
The NPRM also included staff's estimate that the burden for recordkeeping compliance would be 53,000 hours and the estimated burden for disclosures would be 212,000 hours, for a total of 265,000 hours. These estimates are explained below.
To estimate annual labor costs for disclosures for all entities, staff multiplied the 212,000 hours to comply with the proposed Rule's disclosure provisions by a sales personnel wage rate of $22.15/hour.
Thus, the estimated annual labor costs were $5,689,550 [($993,750 recordkeeping) + ($4,695,800 disclosure)].
The NPRM sought comments on the PRA analysis and stated, “comments should provide any available evidence and data that supports their position, such as empirical data.”
As noted earlier, the Commission set an informal hearing, at the request of interested parties, and appointed Administrative Law Judge Carol Fox Foelak as the presiding officer.
Based on the record, the presiding officer concluded, “There is insufficient evidence to make a finding concerning the . . . recordkeeping and disclosure costs associated with the proposed rule,” and “in the absence of evidence, the issue is not genuinely disputed.”
As previously discussed, the Commission made changes to the Rule based on the record. Some of these changes, in turn, affect the PRA analysis. Specifically, the Commission determined to specify and thereby limit the types of disclosures required, narrow the scope of entities covered (by excluding those solely involved in “promoting” negative option plans), curtail the length of time for retaining records (to only three years), and establish an option for sellers to eliminate having to keep records of consent if they have the requisite processes in place. Neither the Commission nor the presiding officer at the informal hearing received evidence to dispute the specific PRA-related figures in the NPRM. For the final Rule, the Commission adopts the following PRA analysis.
Advertising, Consumer protection, Trade practices.
15 U.S.C. 41 through 58.
This Rule contains requirements related to any form of negative option program in any media, including, but not limited to, Interactive Electronic Media, telephone, print, and in-person transactions.
(1) In any communication that is solely visual or solely audible, the disclosure must be made through the same means through which the communication is presented. In any communication made through both visual and audible means, such as a television advertisement, the disclosure must be presented simultaneously in both the visual and audible portions of the communication even if the representation requiring the disclosure is made in only one means.
(2) A visual disclosure, by its size, contrast, location, the length of time it appears, and other characteristics, must stand out from any accompanying text or other visual elements so that it is easily noticed, read, and understood.
(3) An audible disclosure, including by telephone or streaming video, must be delivered in a volume, speed, and cadence sufficient for ordinary consumers to easily hear and understand it.
(4) In any communication using an Interactive Electronic Medium, such as the internet, mobile application, or software, the disclosure must be unavoidable.
(5) The disclosure must use diction and syntax understandable to ordinary consumers and must appear in each language in which the representation that requires the disclosure appears.
(6) The disclosure must comply with these requirements in each medium through which it is received, including all electronic devices and face-to-face communications.
(7) The disclosure must not be contradicted or mitigated by, or inconsistent with, anything else in the communication.
(8) When the representation or sales practice targets a specific audience, such as children, older adults, or the terminally ill, “ordinary consumers” includes members of that group.
(1) An automatic renewal;
(2) A continuity plan;
(3) A free-to-pay conversion or fee-to-pay conversion; or
(4) A pre-notification negative option plan.
In connection with promoting or offering for sale any good or service with a Negative Option Feature, it is a violation of this part and an unfair or deceptive act or practice in violation of section 5 of the Federal Trade Commission Act (“FTC Act”) for any Negative Option Seller to misrepresent, expressly or by implication, any Material fact, including any of the following:
(a) The Negative Option Feature or any term of the Negative Option Feature, including consumer consent, any deadline to prevent or stop a Charge, or the cancellation of the Negative Option Feature;
(b) Cost;
(c) Purpose or efficacy of the underlying good or service;
(d) Health or safety; or
(e) Any other Material fact.
(a)
(1) That consumers will be Charged for the good or service, or that those Charges will increase after any applicable trial period ends, and, if applicable, that the Charges will be on a recurring basis, unless the consumer timely takes steps to prevent or stop such Charges;
(2) Each deadline (by date or frequency) by which the consumer must act to prevent or stop the Charges;
(3) The amount (or range of costs) the consumer will be Charged and, if applicable, the frequency of the Charges a consumer will incur unless the consumer takes timely steps to prevent or stop those Charges; and
(4) The information necessary for the consumer to find the simple cancellation mechanism required pursuant to § 425.6.
(b)
(2) Placement:
(i) The disclosures required by paragraphs (a)(1) through (4) of this section must appear immediately adjacent to the means of recording the consumer's consent for the Negative Option Feature; and
(ii) The disclosures required by paragraph (a) of this section (including, but not limited to, the disclosures required by paragraphs (a)(1) through (4) of this section) must appear before obtaining the consent required pursuant to § 425.5.
(3) Other Information: All communications, regardless of media, must not contain any other information that interferes with, detracts from, contradicts, or otherwise undermines the ability of consumers to read, hear, see, or otherwise understand the disclosures required by paragraph (a) of this section.
(a)
(1) Obtain the consumer's unambiguously affirmative consent to the Negative Option Feature offer separately from any other portion of the transaction;
(2) Not include any information that interferes with, detracts from, contradicts, or otherwise undermines the ability of consumers to provide their express informed consent to the Negative Option Feature; and
(3) Keep or maintain verification of the consumer's consent for at least three years. However, if the seller can
(b)
(c)
(a)
(b)
(c)
(1) For cancellation by Interactive Electronic Medium, the simple cancellation mechanism must be easy to find when the consumer seeks to cancel. Compliance with the disclosure required under § 425.4(a)(4) does not discharge this obligation. In no event shall a consumer be required to interact with a live or virtual representative (such as a chatbot) to cancel if the consumer did not do so to consent to the Negative Option Feature.
(2) For cancellation by telephone call, the Negative Option Seller must promptly effectuate cancellations requested by the consumer via a telephone number that is answered or records messages, made available during normal business hours, and not more costly to use than the telephone call the consumer used to consent to the Negative Option Feature.
(3) For cancellation of consent obtained in person, in addition to offering cancellation, where practical, via an in-person method similar to that the consumer used to consent to the Negative Option Feature, the Negative Option Seller must offer the simple mechanism through an Interactive Electronic Medium or by providing a telephone number. The alternate simple mechanism required by this paragraph must satisfy all requirements of paragraphs (c)(1) and (2) of this section, as applicable. If the Negative Option Seller offers the alternate mechanism by providing a telephone number, the seller shall not erect a cost-barrier to cancellation by imposing any unnecessary or unreasonable cost for the cancellation call.
(a)
(b)
Any person to whom this part applies may petition the Commission for a partial or full exemption. The Commission may, in response to petitions or on its own authority, issue partial or full exemptions from this part if the Commission finds application of this part's requirements is not necessary to prevent the acts or practices to which this part relates. The Commission shall resolve petitions using the procedures provided in 16 CFR 1.31. If appropriate, the Commission may condition such exemptions on compliance with alternative standards or requirements to be prescribed by the Commission.
The provisions of this part are separate and severable from one another. If any provision is stayed or determined to be invalid, the remaining provisions shall continue in effect.
By direction of the Commission, Commissioners Holyoak and Ferguson dissenting.
The following statements will not appear in the Code of Federal Regulations.
As is common in rulemaking proceedings, this Final Rule that the Commission promulgates is somewhat different from what it originally proposed—clarified, narrowed, and ultimately improved by the process of grappling with the substantial record of comments submitted by the public. I extend my heartfelt thanks to everyone who submitted comments; to the talented staff in our Division of Enforcement and the East Central Regional Office who diligently shepherded this proceeding, thoroughly considered all those comments, and recommended thoughtful revisions; and to my colleagues for their deep engagement with this issue of great importance, including former Chairman Joe Simons, under whose leadership the Commission initiated this rulemaking proceeding.
I write separately to draw attention to the comment record about a provision that the Commission proposed but ultimately does not finalize, proposed § 425.7, which would have required annual reminders of subscriptions that do not involve the delivery of physical goods.
Congress and State legislatures, by contrast, have plenary authority to require such a reminder. This spring, for example, in a show of bipartisanship, Virginia Governor Glenn Youngkin signed into law legislation sponsored by Delegate Michelle Lopes Maldonado, H.B. 744, which requires that subscriptions that renew annually provide to the consumer a notice of the upcoming renewal and the opportunity to cancel via between 30 and 60 days before the consumer is charged for the renewal.
“Article I of the Constitution vests `all legislative Powers herein granted' in Congress. `By vesting the lawmaking power in the people's elected representatives, the Constitution sought to ensure not only that all power would be derived from the people, but also that those entrusted with it should be kept in dependence on the people.' ”
The likely unlawful character of the rule is compounded by the Majority's race to cross the finish line. Why the rush? There is a simple explanation. Less than a month from election day, the Chair is hurrying to finish a rule that follows through on a campaign pledge made by the Chair's favored presidential candidate.
The Majority votes today to approve a final trade regulation rule amendment to the existing negative option rule. This amendment greatly expands the prior rule, which had covered now-rare prenotification plans (
I respectfully dissent for three reasons. First, this rulemaking did not follow the FTC Act's section 18 requirements for rulemaking because: (1) the Rule is much broader than the “area of inquiry” proposed by the advance notice of proposed rulemaking (“ANPR”); (2) the Rule fails to define with specificity acts or practices that are unfair or deceptive, improperly generalizing from narrow industry-specific complaints and evidence to the entire American economy; and (3) the Rule fails to demonstrate that the unfair or deceptive acts or practices related to negative option billing are “prevalent.”
Such amendments could have provided greater clarity to businesses about the patchwork of Federal laws pertaining to negative options and lawfully used our section 18 rulemaking authority to fill potential gaps including, for example, cancellation requirements. Indeed, I am very concerned that consumers are sometimes misled by companies using deceptive negative option features. The Rule represents a missed opportunity to devote scarce staff resources to bringing enforcement actions related to negative option features using the clear tools that Congress gave us, rather than conducting an overbroad rulemaking that cost years of staff time to propose and finalize, but will likely not survive legal challenge.
Today's rulemaking did not need to end this way. Had political leadership at the Commission taken more time to engage with other Commissioners to refine and improve the Rule, my vote and statement would look very different. Instead, less than a month from November 5, the Chair has put political expediency over getting things right. Unfortunately, pushing politically motivated rulemakings has not been the exception with the Majority.
I. The historical context surrounding Congress's enactment of rulemaking requirements in section 18 of the FTC Act is important. Congress passed the Magnuson-Moss Warranty Act in 1975, which imposed exacting requirements and limitations on rulemaking regarding unfair or deceptive acts or practices.
Congress' harsh reaction to the FTC's overreach only makes sense if we understand that section 18 was created and then expanded not to give the Commission free-ranging rulemaking authority, but to curb it. We should be exacting in following the requirements of section 18, lest we risk repeating history—drawing Congressional ire that that could further limit our authority and budget. Indeed, section 18's rulemaking requirements, while demanding, are the means of assuring that we act within the parameters established by Congress.
As an initial matter, this Rule's procedural irregularities begin with how the Rule was finalized in a compressed time frame. Given the rigorous demands of section 18 rulemaking, historically, it has taken the Commission, on average, 5.57 years to issue a rule after the Magnuson-Moss procedures were enacted.
Apparently not content with even these procedural shortcuts and compressed timeframe, political leadership now speeds to the finish line with minimal opportunity for Commissioner engagement on the final Rule. There should be ample opportunity for robust consideration and dialogue leading up to a Commission vote on any regulation, and especially for a highly consequential rule. Such opportunity for dialogue may assuage concerns, produce constructive changes, and ultimately lead to a better result. Indeed, in the past where political leadership has been willing to engage and make needed modifications preceding votes, that consideration and engagement have been very valuable and led to bipartisan support for Commission actions.
Here, however, the time period for me to review this economy-wide Rule was a matter of weeks. Those weeks were also packed with dozens of cases, one other rulemaking, and other policy matters. (Remarkably, the Chair had this draft final Rule for some time before it was circulated to the other Commissioners.) Reviewing the NPRM was no substitute for robust discussion and negotiation related to the final Rule's language and statement of basis and purpose, as the final Rule differs in important ways from the rule as proposed. The push to finalize is inexcusable, particularly because it is a discretionary rulemaking with no due date (imposed by Congress or otherwise). For those tracking the Rule and national politics closely, this rush to the finish line (and less than a month from a Presidential election) is no surprise. This Rule is connected to the current administration's efforts relating to so-called junk fees (which are beginning to make a regular appearance before elections
But elevating political goals comes at a high price, harms policy efforts that might otherwise benefit consumers, and undermines the Commission's legitimacy. Publicly appearing to refuse to keep an open mind on a final rule or to prejudge complex policy questions, along with an apparent unwillingness to reconsider various aspects of a rulemaking may create PR buzz for the campaign trail and score political points. But that posture creates real legal risk for the Rule. Statements from the White House
In addition to my concern about these irregularities, I am convinced that this rulemaking has failed to satisfy section 18's requirements for rulemaking in three ways. First, the Commission is issuing a broad final rule even though the ANPR was far narrower. This mismatch means that the Commission failed to provide in its ANPR the “brief description of the area of inquiry under consideration, the objectives which the Commission seeks to achieve, and possible regulatory alternatives under consideration by the Commission” that section 18 requires.
Importantly, the ANPR did not contemplate broader regulation prohibiting all misrepresentations of material fact related to products that have negative option features. The ANPR tailored its inquiry by “. . . highlighting five basic section 5 requirements that negative option marketing must follow to avoid deception”: (1) disclosure of material terms of a negative option offer; (2) clear and conspicuous disclosures; (3) pre-purchase disclosures; (4) consent; (5) cancellation.
When Commission leadership changed in 2021, the “area of inquiry” changed as well. Almost immediately, the Commission under Chair Khan disrupted this particular rulemaking process to issue an Enforcement Policy Statement Regarding Negative Option Marketing
The Statement of Basis and Purpose (“SBP”) accompanying the final Rule cursorily dismisses concerns about the ANPR's adequacy, dubiously arguing that section 18 requires no such “specificity” in describing the area of inquiry.
It is telling that the ANPR here only elicited 17 comments,
The second procedural failing lies in the Commission's failure to “prescribe . . . rules which define with specificity acts or practices which are unfair or deceptive acts or practices” as Section 18 requires.
Unfairness explicitly requires a cost-benefit analysis relating to the practices at issue.
Indeed, the Rule is not limited to misrepresentations relating to deceptive terms of negative option features (or some other specific, deceptive conduct), but instead, applies broadly to any material fact. Nor does the Rule require that the consumer actually use the negative option feature; the mere presence of a negative option feature would render any misrepresentation of material fact subject to the Rule. Taken together, the Rule is nothing more than a back-door effort at obtaining civil penalties in any industry where negative option is a method to secure payment. The Rule's application to any misrepresentation therefore fails to meet Section 18's “specificity” requirement,
The Supreme Court's decision in
The third significant procedural flaw in this rulemaking is that the Commission failed to appropriately establish the “prevalence” of unfair and deceptive practices related to all negative option features for all products in all markets and all media (
The Commission shall make a determination that unfair or deceptive acts or practices are prevalent under this paragraph only if—
(A) it has issued cease and desist orders regarding such acts or practices, or
(B) any other information available to the Commission indicates a widespread pattern of unfair or deceptive acts or practices.
In the SBP, the Commission argues that it has satisfied this standard for its economy-wide rulemaking because it has issued more than 35 cases “challenging harmful negative option practices” and has received “tens of thousands of consumers complaints.”
If similarity among complaints and cases only at the highest level of generality constitutes the “prevalence” sufficient to ground an economy-wide rulemaking, then a “prevalence” determination is in fact no meaningful guardrail on the Commission's conduct at all, creating precisely the type of non-delegation concerns that Section 18's guardrails were meant to prevent. Canons of “avoidance” warn us to avoid adopting interpretations that would render statutes unconstitutional.
A final concern here. The Rule's failure to define with specificity the acts or practices which are unfair or deceptive, combined with the rule's preemption of inconsistent
II. The Rule is troubling not only procedurally but also substantively. By singling out representations made in connection with negative option billing models and subjecting these representations to civil penalties or other monetary relief, it tilts the playing field in ways that are likely to pervert business incentives. For example, businesses may avoid using negative option billing models, even when businesses and consumers could derive significant value from them.
One might argue that no shift in incentives will happen for honest businesses because the Rule only addresses misrepresentations of material fact. In other words, all an honest business needs to do to avoid civil penalties is to tell the truth about products and services that involve negative option billing. But what constitutes a misrepresentation can sometimes be in the eye of the beholder (that is, a Commissioner).
These shifting incentives matter to consumers because the reason that honest businesses adopt negative option billing is to lower transaction costs between consumers and firms. For example, say I want to watch a particular streaming service at my convenience. I don't want to be bothered with signing up and paying a fee each month that I log on; I want negative option billing—a subscription—to reduce the friction in my streaming experience. Raising the transaction costs will reduce a business's sales and the utility consumers derive from these services. In other words, in our good intentions, we may harm the consumers and competition we are supposed to protect.
The Rule purports to address any overbreadth by including, consistent with the Commission's Rules of Practice,
But the “Exemptions” provision does nothing to reduce the burden on firms from the overbreadth of the Rule's coverage of all misrepresentations of material fact. Rather, taken together, they effectively shift the burden of crafting a tailored rule to regulated entities. And, once again, it appears that the Commission is tilting the playing field in a manner that is likely to harm both consumers and competition. Small businesses and new market entrants are less likely to be able to afford the potentially costly legal fees needed to petition the Commission to obtain an exemption. Even for businesses that can afford to use the exemption process, this process will impose costs on businesses, who will pass on those costs to consumers. Raising potential costs for consumers through an improperly promulgated rule is not a desirable outcome at any time, but especially not in an inflationary economy. Businesses and consumers will not be alone in bearing increased costs. Conducting the exemption process will continue to drain FTC staff resources—reducing the time that our talented staff could devote to enforcing the clear authorities Congress has given us, such as ROSCA.
A final point here. I also have concerns about the Commission's economic analysis of the quantifiable benefits that may result from the Rule's substantive requirements. For example, the Commission's estimate related to the upper bound of the Rule's benefits for consumers who cancel subscriptions with in-person enrollment is based in part on the complaints of 25 individual consumers in a single industry,
III. This Rule is particularly disappointing because it represents two missed opportunities. In 2019, a bipartisan Commission unanimously voted in favor of
The second missed opportunity has taken place every day since the Commission expanded the scope of the rulemaking. This Commission chose to devote scarce staff resources to this overbroad rulemaking—one that seems likely to be challenged in court, which will lead to even more taxpayer-funded expenses—rather than direct our talented staff to draft a rule within the scope of our authority or bring enforcement actions using clear legal authorities like ROSCA and TSR. In my time at the Commission, I have voted in support of numerous ROSCA cases, including
I dissent.