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FR | FR-2024-09-09/2024-20179 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73086-73087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20179]
=======================================================================
-----------------------------------------------------------------------
EXPORT-IMPORT BANK
[Public Notice: 2023-6093]
Agency Information Collection Activities: Submission to the
Office of Management and Budget for Review and Approval; Comment
Request; EIB 92-79, Commissioned Broker Application Form
AGENCY: Export-Import Bank of the United States.
ACTION: Notice of information collection; request for comment.
-----------------------------------------------------------------------
SUMMARY: 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 public and other Federal agencies to comment on the
proposed information collection, as required by the paperwork Reduction
Act of 1995.
DATES: Comments must be received on or before November 8, 2024 to be
assured of consideration.
ADDRESSES: Comments may be submitted electronically on
www.regulations.gov (EIB 92-79), by email to Jennifer Krause,
[email protected], or by mail to Jennifer Krause, Export-Import
Bank of the United States, 811 Vermont Ave. NW, Washington, DC 20571.
FOR FURTHER INFORMATION CONTACT: To request additional information,
please contact Jennifer Krause, [email protected], 305.586.2022.
[[Page 73087]]
SUPPLEMENTARY INFORMATION: 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 https://img.exim.gov/s3fs-public/pub/pending/eib92-79_2024_508.pdf.
Title and Form Number: EIB 92-79, Commissioned Broker Application
Form.
OMB Number: 3048-0024.
Type of Review: Regular.
Need and Use: This form is used by insurance brokers to register
with EXIM. The form provides EXIM staff with the information necessary
to make a determination of the eligibility of the broker to receive
commission payments under Export-Import Bank's credit insurance
programs. Our customers will be able to submit this form on paper or
electronically.
Affected Public: This form affects entities engaged in brokering
export credit insurance policies.
Annual Number of Respondents: 3.
Estimated Time per Respondent: 15 minutes.
Frequency of Reporting or Use: As needed.
Andrew Smith,
Records Officer.
[FR Doc. 2024-20179 Filed 9-6-24; 8:45 am]
BILLING CODE 6690-01-P | usgpo | 2024-10-08T13:26:20.883792 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20179.htm"
} |
FR | FR-2024-09-09/2024-20181 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20181]
-----------------------------------------------------------------------
EXPORT-IMPORT BANK
[Public Notice: 2024-6092]
Agency Information Collection Activities: Submission to the
Office of Management and Budget for Review and Approval; Comment
Request; EIB 92-27, Report of Overdue Accounts Under Short-Term
Policies
AGENCY: Export-Import Bank of the United States.
ACTION: Submission for OMB review and comments request.
-----------------------------------------------------------------------
SUMMARY: 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.
DATES: Comments must be received on or before November 8, 2024 to be
assured of consideration.
ADDRESSES: Comments may be submitted electronically on
www.regulations.gov (EIB 92-27), by email to Tom Fitzpatrick
[email protected], or by mail to Tom Fitzpatrick, Export-Import
Bank of the United States, 811 Vermont Ave. NW, Washington, DC 20571.
FOR FURTHER INFORMATION CONTACT: To request additional information
please contact Edward Coppola 202-565-3717.
The form can be viewed at https://img.exim.gov/s3fs-public/pub/pending/Report_of_Overdue_Accounts_eib92-27_2024_508.pdf.
SUPPLEMENTARY INFORMATION:
Title and Form Number: EIB 92-27, Report of Overdue Accounts Under
Short-Term Policies.
OMB Number: 3048-0027.
Type of Review: Regular.
Need and Use: The collection provides EXIM staff with the
information necessary to monitor the borrower's payments for exported
goods covered under its short- and medium term export credit insurance
policies. It also alerts Ex-Im Bank staff of defaults, so they can
manage the portfolio in an informed manner.
Affected Public: This form affects entities involved in the export
of U.S. goods and services.
Annual Number of Respondents: 745.
Estimated Time per Respondent: 15 minutes.
Annual Burden Hours: 186.25 hours.
Frequency of Reporting or Use: Monthly, until completed.
Andrew Smith,
Records Officer.
[FR Doc. 2024-20181 Filed 9-6-24; 8:45 am]
BILLING CODE 6690-01-P | usgpo | 2024-10-08T13:26:20.921729 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20181.htm"
} |
FR | FR-2024-09-09/2024-20182 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20182]
-----------------------------------------------------------------------
EXPORT-IMPORT BANK
[Public Notice: 2024-6091]
Agency Information Collection Activities: Submission to the
Office of Management and Budget for Review and Approval; Comment
Request; EIB 92-37 Beneficiary Certificate and Agreement for Use With
Bank Letter of Credit Short Term Export Credit Insurance Policy, or
Financial Institution Buyer Credit Insurance Policy
AGENCY: Export-Import Bank of the United States.
ACTION: Notice of information collection; request for comment.
-----------------------------------------------------------------------
SUMMARY: 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.
DATES: Comments must be received on or before November 8, 2024, to be
assured of consideration.
ADDRESSES: Comments may be submitted electronically on
www.regulations.gov (EIB 92-37) or by email [email protected], or
by mail to Edward Coppola, Export-Import Bank of the United States, 811
Vermont Ave. NW, Washington, DC 20571.
FOR FURTHER INFORMATION CONTACT: To request additional information,
please contact Edward Coppola; [email protected]; 202 565-3717.
SUPPLEMENTARY INFORMATION: The application tool can be reviewed at:
https://img.exim.gov/s3fs-public/pub/pending/eib92-37.pdf.
Title and Form Number: EIB 92-37 Beneficiary Certificate and
Agreement for use with Bank Letter of Credit Short Term Export Credit
Insurance Policy, or Financial Institution Buyer Credit Insurance
Policy.
OMB Number: 3048-0022.
Type of Review: Regular.
Need and Use: This form is used when the beneficiary of the letter
of credit, the recipient of a funding under a direct buyer credit loan,
or the recipient of payment under a reimbursement loan or a payment
under a supplier credit is not the exporter. If the need to use this
form arises, the insured holds it in the event of a claim, at which
time it would submit it to Export-Import Bank along with all other
claim documentation. The form provides Export-Import Bank staff with
the information necessary to determine the eligibility of the claimed
export transaction for coverage.
Affected Public: This form affects entities involved in the export
of U.S. goods and services.
Annual Number of Respondents: 15.
Estimated Time per Respondent: 15 minutes.
Annual Burden Hours: 3.75 hours.
Frequency of Reporting of Use: As needed.
Andrew Smith,
Records Officer.
[FR Doc. 2024-20182 Filed 9-6-24; 8:45 am]
BILLING CODE 6690-01-P | usgpo | 2024-10-08T13:26:20.995882 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20182.htm"
} |
FR | FR-2024-09-09/2024-20180 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20180]
[[Page 73088]]
-----------------------------------------------------------------------
EXPORT-IMPORT BANK
[Public Notice: 2024-6094]
Agency Information Collection Activities: Submission to the
Office of Management and Budget for Review and Approval; Comment
Request; EIB 92-41, Application for Financial Institution Short-Term,
Single-Buyer Insurance
AGENCY: Export-Import Bank of the United States.
ACTION: Submission for OMB review and comments request.
-----------------------------------------------------------------------
SUMMARY: The Export-Import Banks of the United States (EXIM), as 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. This collection of information is necessary to determine
eligibility of the underlying export transaction for EXIM insurance
coverage.
DATES: Comments must be received on or before November 8, 2024 to be
assured of consideration.
ADDRESSES: Comments may be submitted electronically on
www.regulations.gov (EIB 10-02), by email [email protected]; or
by mail to Edward Coppola, Export-Import Bank of the United States, 811
Vermont Ave. NW, Washington, DC. The application tool can be reviewed
at: https://img.exim.gov/s3fs-public/pub/pending/FIBC_Application_eib92-41_2024_FINAL_508.pdf.
FOR FURTHER INFORMATION CONTACT: To request additional information,
please contact Edward Coppola, [email protected]; 202-565-3717.
SUPPLEMENTARY INFORMATION:
Title and Form Number: EIB 92-41, Application for Financial
Institution Short-Term, Single-Buyer Insurance.
OMB Number: 3048-0019.
Type of Review: Regular.
Need and Use: The Application for Financial Institution Short-term
Single-Buyer Insurance form will be used by financial institution
applicants to provide EXIM with the information necessary to determine
if the subject transaction is eligible for EXIM insurance coverage.
Affected Public: This form affects entities involved in the export
of U.S. goods and services.
Annual Number of Respondents: 215.
Estimated Time per Respondent: 1.6 hours.
Annual Burden Hours: 344.
Frequency of Reporting of Use: Annual.
Andrew Smith,
Records Officer.
[FR Doc. 2024-20180 Filed 9-6-24; 8:45 am]
BILLING CODE 6690-01-P | usgpo | 2024-10-08T13:26:21.029298 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20180.htm"
} |
FR | FR-2024-09-09/2024-19068 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73088-73089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-19068]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
[GN Docket No. 24-248; DA 24-815; FR ID 240542]
Information Sought on Sharing in the 18 GHz Band in Connection
With the National Spectrum Strategy Implementation Plan
AGENCY: Federal Communications Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission's
Space and Wireless Telecommunications Bureaus and the Offices of
International Affairs and Engineering and Technology seek information
on sharing in the 18 GHz band in connection with the National Spectrum
Strategy Implementation Plan.
DATES: Comments are due by September 5, 2024. Reply comments are due by
September 16, 2024.
ADDRESSES: You may submit comments, identified by GN Docket No. 24-248,
by any of the following methods:
[ssquf] Federal Communications Commission's Website: https://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.
[ssquf] People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document. To request materials in
accessible formats for people with disabilities, send an email to
[email protected] or call the Consumer & Governmental Affairs Bureau at
202-418-0530 (voice), 202-418-0432 (TTY).
FOR FURTHER INFORMATION CONTACT: Bahman Badipour, Office of Engineering
and Technology, 202-418-7814, [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
document, DA 24-248, released August 16, 2024, by the Space and
Wireless Telecommunications Bureaus and the Offices of Engineering and
Technology and International Affairs under delegated authority pursuant
to 47 CFR 0.31, 0.131, 0.261, and 0.351. The full text of the document
is available at https://www.fcc.gov/document/fcc-seeks-information-sharing-18-ghz-band.
Comment Filing Requirements
Interested parties may file comments and reply comments on or
before the dates indicated in the DATES section above. Comments may be
filed using the Commission's Electronic Comment Filing System (ECFS).
Electronic Filers. Comments may be filed electronically
using the internet by accessing the ECFS, http://apps.fcc.gov/ecfs.
Paper Filers. Parties who choose to file by paper must
file an original and one copy of each filing. Filings can be sent by
commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail. All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express,
and Priority mail must be addressed to 45 L Street NE, Washington, DC
20554.
Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
Persons with Disabilities. To request materials in
accessible formats for people with disabilities (braille, large print,
electronic files, audio format), send an email to [email protected] or
call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice)
or 202-418-0432 (TTY).
Synopsis
The Space Bureau, Wireless Telecommunications Bureau, the Office of
International Affairs, and the Office of Engineering and Technology
(collectively Bureaus/Offices) seek to further develop the record for
the 18.1-18.6 GHz band (18 GHz band) with the goal of informing the
forthcoming report
[[Page 73089]]
mandated by the National Spectrum Strategy (NSS) Implementation Plan.
The NSS identified the 18 GHz band as a potential band for expanded
Federal and non-Federal satellite operations, consistent with the U.S.
position at the 2023 World Radiocommunication Conference (WRC-23),
which would add space-to-space allocations to this band (among others).
Fixed-Satellite Service (FSS) downlink operations are currently
authorized in the band. In addition, non-Federal Fixed Service is
authorized in the 18.1-18.3 GHz segment of the band. The final report
with findings is to be completed by May 2025.
Background. In 2006, the Federal Communications Commission
(Commission) released the Report and Order rechannelizing the 17.7-19.7
GHz band for Fixed Microwave Services under part 101 of the
Commission's rules (71 FR 69039, Nov. 29, 2006) (18 GHz R&O). As part
of the 18 GHz R&O, the Commission adopted a revised band plan for the
17.7-18.3 and 19.3-19.7 GHz band, designated a contiguous 600 megahertz
block of one way spectrum from 17.7-18.3 GHz for use by multichannel
video programming distributors (MVPDs), and protected certain federal
earth stations in the FSS (space-to-Earth) in the 17.7-17.8 GHz band.
United States federal systems are authorized to operate in the 17.8-
20.2 GHz band in accordance with footnote US334 in the United States
Table of Frequency Allocations. Coordination between non-federal
operations, both terrestrial and satellite, and these federal
operations remain in effect.
WRC-23 and 18 GHz. Under Agenda Item 1.17 of WRC-23, the Conference
considered appropriate regulatory actions for the provision of inter-
satellite links in the frequency bands 11.7-12.7 GHz, 18.1-18.6 GHz,
18.8-20.2 GHz and 27.5-30.0 GHz. During the ITU-R study cycle leading
up to the Conference, the United States and other administrations
developed extensive sharing and compatibility studies to assess the
feasibility of introducing satellite-to-satellite links in the 18 GHz
band, among others. Based on these studies, at WRC-23 the United States
and other member states of the Inter-American Telecommunication
Commission (CITEL) supported a common regional proposal to add an
inter-satellite service allocation in bands including the 18 GHz band,
under certain conditions. WRC-23 ultimately adopted inter-satellite
service allocations in the 18 GHz and other bands in the International
Table of Frequency Allocations subject to a new Resolution and
additional restrictions.
WRC-15 NPRM and 18.142-18.3 GHz. In April 2023, the Commission
sought comment on whether it should raise the non-Federal secondary FSS
(space-to-Earth) allocation in the 18.142-18.3 GHz band to primary
status, i.e., co-equal with the non-Federal primary fixed service
allocation in the band (88 FR 67160, Sept. 29, 2023). If adopted, this
upgrade of allocation status would provide receiving earth stations
with interference protection from later-licensed fixed stations that
are used for part 74 and part 101 Multichannel Video Programming
Distributor (MVPD) and part 78 cable television relay service (CARS)
operations that operate in accordance with the proposed rules in this
section.
National Spectrum Strategy. The NSS identifies the 18 GHz band as a
band for further study. The NSS Implementation Plan establishes a
schedule under which a band study would be completed by February 2025
and a final report issued by May 2025. In order to aid the band study
and report preparation, the Bureaus/Offices seek public input on
various issues relating to current or potential uses of the 18 GHz
band. Specifically, the Bureaus/Offices seek comment on whether the
assumptions and analysis on which the WRC-23 decision was based are
still valid. Commenters advocating that the NSS band study should be
based on different assumptions or analysis should provide detailed
technical information describing why they disagree with the previous
work and what assumptions they favor and their preferred analysis
method. The Bureaus/Offices also seek comment on the use cases
operators in the 18 GHz band plan to support and what regulatory
changes are needed to implement any allocation changes supported by the
record. In addition, the Bureaus/Offices seek comment on whether the
separately pending proposal to elevate the non-Federal FSS allocation
in the 18.142-18.3 GHz band to primary status would affect a new space
allocation in the 18 GHz band. The record developed in response to the
Public Notice will be publicly available in GN Docket No. 24-248 and
shared with the NTIA and other interested agencies.
Federal Communications Commission.
Troy Tanner,
Acting Chief, Office of International Affairs.
[FR Doc. 2024-19068 Filed 9-6-24; 8:45 am]
BILLING CODE 6712-01-P | usgpo | 2024-10-08T13:26:21.144981 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-19068.htm"
} |
FR | FR-2024-09-09/2024-20177 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73089-73090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20177]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
[OMB 3060-0076, OMB 3060-1181; FR ID 242982]
Information Collections Being Reviewed by the Federal
Communications Commission Under Delegated Authority
AGENCY: Federal Communications Commission.
ACTION: Notice and request for comments.
-----------------------------------------------------------------------
SUMMARY: As part of its continuing effort to reduce paperwork burdens,
and as required by the Paperwork Reduction Act (PRA) of 1995, the
Federal Communications Commission (FCC or the Commission) invites the
general public and other Federal agencies to take this opportunity to
comment on the following information collection. Comments are requested
concerning: whether the proposed collection of information is necessary
for the proper performance of the functions of the Commission,
including whether the information shall have practical utility; the
accuracy of the Commission's burden estimate; ways to enhance the
quality, utility, and clarity of the information collected; ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology; and ways to further reduce the
information collection burden on small business concerns with fewer
than 25 employees. The FCC may not conduct or sponsor a collection of
information unless it displays a currently valid control number. No
person shall be subject to any penalty for failing to comply with a
collection of information subject to the PRA that does not display a
valid Office of Management and Budget (OMB) control number.
DATES: Written PRA comments should be submitted on or before November
8, 2024. If you anticipate that you will be submitting comments, but
find it difficult to do so within the period of time allowed by this
notice, you should advise the contact listed below as soon as possible.
ADDRESSES: Direct all PRA comments to Nicole Ongele, FCC, via email
[email protected] and to [email protected].
FOR FURTHER INFORMATION CONTACT: For additional information about the
information collection, contact Nicole Ongele, (202) 418-2991.
SUPPLEMENTARY INFORMATION:
OMB Control Number: 3060-0076.
[[Page 73090]]
Title: Common Carrier Annual Employment Report, FCC Form 395.
Form Number: FCC Form 395.
Type of Review: Extension of a currently approved collection.
Respondents: Business or other for-profit entities.
Number of Respondents and Responses: 491 respondents; 491
responses.
Estimated Time per Response: 1 hour.
Frequency of Response: Annual reporting requirement and
recordkeeping requirement.
Obligation to Respond: Required to obtain or retain benefits.
Statutory authority for this information collection is contained in 47
U.S.C. 154(i), 303, and 307-310 of the Communications Act of 1934, as
amended.
Total Annual Burden: 491 hours.
Total Annual Cost: No cost.
Needs and Uses: FCC Report 395, Common Carrier Annual Employment
Report, is a data collection mechanism to implement the FCC's Equal
Employment Opportunity (EEO) rules. All common carrier licensees or
permittees with sixteen (16) or more full-time employees are required
to file the Annual Employment Report. Each common carrier is also
obligated to file with this Commission copies of all exhibits, letters,
and documents pertaining to all equal employment opportunity statements
and annual reports on complaints regarding violations of equal
employment provisions of Federal, State, Territorial, or local law.
Section 22.321(f), 47 CFR, requires each licensee to maintain these
documents for a period of two years. The Annual Employment Report
identifies each filer's staff by gender, race, color, and/or national
origin in each of ten major job categories. The report and all other
EEOC documents are filed with the Commission to detail the applicant's
compliance with the Commission's EEO rules. Data from these reports are
available online so that users can easily locate data for a particular
carrier and/or specific reporting years.
OMB Control Number: 3060-1181.
Title: Study Area Boundary Data Reporting in Esri Shapefile Format,
DA 12-1777 and DA 13-282.
Form Number: N/A.
Type of Review: Extension of a currently approved collection.
Respondents: Business or other for-profit entities and State, Local
or Tribal Government.
Number of Respondents and Responses: 36 respondents; 36 responses.
Estimated Time per Response: 24 hours for submitting updates; less
than 1 hour for recertification.
Frequency of Response: On occasion and biennially reporting
requirements.
Obligation to Respond: Mandatory. Statutory authority for this
information collection is contained in 47 U.S.C. 254(b) of the
Communications Act of 1934, as amended.
Total Annual Burden: 576 hours.
Total Annual Cost: $10,714.
Needs and Uses: The Commission uses the study area boundary data
collected through 3060-1181 to implement certain universal service
reforms. The Universal Service Fund supports the deployment of voice
and broadband-capable infrastructure in rural, high cost areas. High-
cost support is granted to a carrier based on the characteristics of
its ``study area,'' the geographic area served by an incumbent local
exchange carrier within a state. Therefore, complete and accurate study
area boundary data are essential for calculating a carrier's costs and
expenses, which in turn determine the amount of support that carrier
can receive to serve high-cost areas. In December 2012, the Commission
submitted a request for emergency preapproval of this collection, which
the Office of Management and Budget (OMB) granted on January 23, 2013.
On June 12, 2013, the Commission submitted a request for a three-year
extension of the collection to July 31, 2016 (78 FR 34382), which OMB
approved on July 31, 2013 (78 FR 76312). Initial study area boundaries
were submitted in 2013. These maps were submitted via a secure
internet-browser web interface developed and maintained by the
Commission. If a study area boundary changes, filers are required to
submit, via Box, revised boundary data incorporating such changes by
March 15 of the year following the change. In addition, all filers are
required to recertify their study area boundaries every two years.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2024-20177 Filed 9-6-24; 8:45 am]
BILLING CODE 6712-01-P | usgpo | 2024-10-08T13:26:21.231149 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20177.htm"
} |
FR | FR-2024-09-09/2024-20164 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73090-73092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20164]
=======================================================================
-----------------------------------------------------------------------
FEDERAL DEPOSIT INSURANCE CORPORATION
[OMB No. 3064-0162; -0179; -0195]
Agency Information Collection Activities: Proposed Collection
Renewal; Comment Request
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Notice and request for comment.
-----------------------------------------------------------------------
SUMMARY: The FDIC, as part of its obligations under the Paperwork
Reduction Act of 1995 (PRA), invites the general public and other
Federal agencies to take this opportunity to comment on the renewal of
the existing information collections described below (OMB Control No.
3064-0162; -0179; and -0195).
DATES: Comments must be submitted on or before November 8, 2024.
ADDRESSES: Interested parties are invited to submit written comments to
the FDIC by any of the following methods:
Agency Website: https://www.fdic.gov/resources/regulations/federal-register-publications/.
Email: [email protected]. Include the name and number of
the collection in the subject line of the message.
Mail: Manny Cabeza (202-898-3767), Regulatory Counsel, MB-
3128, Federal Deposit Insurance Corporation, 550 17th Street NW,
Washington, DC 20429.
Hand Delivery: Comments may be hand-delivered to the guard
station at the rear of the 17th Street NW building (located on F Street
NW), on business days between 7:00 a.m. and 5:00 p.m.
All comments should refer to the relevant OMB control number. A
copy of the comments may also be submitted to the OMB desk officer for
the FDIC: Office of Information and Regulatory Affairs, Office of
Management and Budget, New Executive Office Building, Washington, DC
20503.
FOR FURTHER INFORMATION CONTACT: Manny Cabeza, Regulatory Counsel, 202-
898-3767, [email protected], MB-3128, Federal Deposit Insurance
Corporation, 550 17th Street NW, Washington, DC 20429.
SUPPLEMENTARY INFORMATION:
Proposal to renew the following currently approved collection of
information:
1. Title: Large-Bank Deposit Insurance Programs.
OMB Number: 3064-0162.
Form Number: None.
Affected Public: Insured depository institutions having at least $2
billion in deposits and at least either: (a) 250,000 Deposit accounts;
or (b) $20 billion in total assets, regardless of the number of deposit
accounts (a ``covered institution'').
Burden Estimate:
[[Page 73091]]
Summary of Estimated Annual Burden
[OMB No. 3064-0162]
----------------------------------------------------------------------------------------------------------------
Type of burden Number of Time per
Information collection (frequency of Number of responses per response Annual burden
(obligation to respond) response) respondents respondent (HH:MM) (hours)
----------------------------------------------------------------------------------------------------------------
1. Posting and removing Recordkeeping 8 1 150:00 1,200
provisional holds-- (One time).
Implementation--Sec.
360.9(c)(1) and (2)
(Mandatory).
2. Providing standard data Recordkeeping 8 1 110:00 880
format for deposit account (One time).
and customer information--
Implementation--Sec.
360.9(d)(1) (Mandatory).
3. Notification of identity of Reporting (One 8 1 8:00 64
person responsible for time).
producing standard data
downloads--Implementation--Se
c 360.9(c)(3) (Mandatory).
4. Provide deposit account and Reporting (On 8 1 40:00 320
customer information in Occasion).
required standard format--
Implementation--Sec.
360.9(d)(3) (Mandatory).
5. Request for exemption from Reporting (On 1 1 20:00 20
provisional hold Occasion).
requirements--Implementation-
-Sec. 360.9(c)(9)
(Voluntary).
6. Request for extension of Reporting (On 1 1 20:00 20
compliance deadline-- Occasion).
Implementation--Sec.
360.9(e)(7) (Voluntary).
7. Request for exemption-- Reporting (On 1 1 20:00 20
Implementation Sec. Occasion).
360.9(f) (Voluntary).
8. Notification of identity of Reporting 123 1 8:00 984
person responsible for (Annual).
producing standard data
downloads--Ongoing--Sec.
360.9(c)(3) (Mandatory).
9. Request for exemption from Reporting (On 1 1 20:00 20
provisional hold Occasion).
requirements--Ongoing--Sec.
360.9(c)(9) (Voluntary).
10. Request for exemption-- Reporting (On 1 1 20:00 20
Ongoing--Sec. 360.9(f) Occasion).
(Voluntary).
11. Test compliance with Sec. Reporting 30 1 80:00 2,400
360.9 (c) through (d) (Annual).
pursuant to Sec. 360.9(h)--
Ongoing--Sec. 360.9 (h)
(Mandatory).
---------------------------------------------------------------------------------
Total Annual Burden ................ .............. .............. .............. 5,948
(Hours):.
----------------------------------------------------------------------------------------------------------------
Source: FDIC.
General Description of Collection: Upon the failure of an FDIC-
insured depository institution, the FDIC is required to pay insured
deposits as soon as possible. To do so, the FDIC must be able to
quickly determine the total insured amount for each depositor. To make
this determination, the FDIC must ascertain the balances of all deposit
accounts owned by the same depositor in the same ownership capacity at
a failed institution as of the day of failure. The FDIC issued a
regulation (12 CFR 360.9) to modernize the process of determining the
insurance status of each depositor in the event of failure of a covered
institution. The regulations enable operations of a large insured
depository institution to continue functioning on the day following
failure, support the FDIC's efforts to fulfill it's legal mandates
regarding the resolution of failed insured deposit institutions, and
apply to the largest institutions only ($2 billion in domestic deposits
or more). More specifically, the regulations require the largest
insured depository institutions to adopt mechanisms that would, in the
event of the institution's failure (1) provide the FDIC with standard
deposit account and customer informaton, and (2) allow the FDIC to
place and release holds on liability accounts, including deposits.
There is no change in the methodology or substance of this information
collection. The decrease in total estimated annual burden from 6,464
hours in 2021 to 5,948 hours currently is due to a decrease in
estimated number or respondents.
2. Title: Assessment Rate Adjustment Guidelines for Large and
Highly Complex Institutions.
OMB Number: 3064-0179.
Form Number: None.
Affected Public: Large and highly complex depository institutions.
Burden Estimate:
Summary of Estimated Annual Burden
[OMB No. 3064-0179]
----------------------------------------------------------------------------------------------------------------
Type of burden Number of Time per
Information collection (IC) (frequency of Number of responses per response Annual burden
(obligation to respond) response) respondents respondent (HH:MM) (hours)
----------------------------------------------------------------------------------------------------------------
1. Assessment Rate Adjustment Reporting (On 1 1 80:00 80
Guidelines for Large and occasion).
Highly Complex Institutions,
12 CFR part 327 (Required to
obtain or retain benefits).
---------------------------------------------------------------------------------
[[Page 73092]]
Total Annual Burden ................ .............. .............. .............. 80
(Hours):.
----------------------------------------------------------------------------------------------------------------
General Description of Collection: The FDIC's deposit insurance
assessment authority is set forth in section 7 of the Federal Deposit
Insurance Act, 12 U.S.C. 1817(b) and (c), and promulgated in
regulations under 12 CFR part 327. These regulations also set out the
process for making adjustments to the total score of these institutions
used by the FDIC in making deposit insurance assessments. Depository
institutions are permitted to make a written request to the FDIC for an
assessment adjustment. An institution is able to request review of, or
appeal, an upward adjustment, the magnitude of an upward adjustment,
removal of a previously implemented downward adjustment or an increase
in a previously implemented upward adjustment through the FDIC's
internal review process set forth at 12 CFR 327.4(c). An institution
can similarly request review of or appeal a decision not to apply an
adjustment following a request by the institution for an adjustment. An
institution can submit its written request for an adjustment to the
FDIC's Director of the Division of Insurance and Research in
Washington, DC. In making such a request, the institution will provide
support by including evidence of a material risk or risk mitigating
factor that it believes was not adequately considered. There is no
change in the methodology or substance of this information collection.
The decrease in total estimated annual burden from 160 hours in 2021 to
80 hours currently is due to a decrease in estimated number or
respondents.
3. Title: Minimum Requirements for Appraisal Management Companies.
OMB Number: 3064-0195.
Form Number: None.
Affected Public: Individuals or households; business or other for
profit.
Burden Estimate:
Summary of Estimated Annual Burden
[OMB No. 3064-0195]
----------------------------------------------------------------------------------------------------------------
Type of burden Number of Time per
Information collection (IC) (frequency of Number of responses per response Annual burden
(obligation to respond) response) respondents respondent (HH:MM) (hours)
----------------------------------------------------------------------------------------------------------------
1. Written Notice of Appraiser Disclosure (On 8,481 1 00:05 707
Removal from Network or occasion).
Panel, 12 CFR 323.10
(Mandatory).
2. Develop and Maintain a Recordkeeping 1 1 40:00 40
State Licensing Program, 12 (On occasion).
CFR 323.11(a) and (b)
(Mandatory).
3. AMC Disclosure Requirements Disclosure (On 1,206 1 01:00 1,206
(State-regulated AMCs), 12 occasion).
CFR 323.12 (Mandatory).
4. AMC Disclosure Requirements Disclosure (On 38 1 01:00 38
(Federally regulated AMCs), occasion).
12 CFR 323.13(c) (Mandatory).
---------------------------------------------------------------
Total Annual Burden ................ .............. .............. .............. 1,991
(Hours):.
----------------------------------------------------------------------------------------------------------------
Source: FDIC.
General Description of Collection: This information collection
comprises recordkeeping and disclosure requirements under regulations
issued by the FDIC, jointly with the Office of the Comptroller of the
Currency, the Board of Governors of the Federal Reserve System, the
National Credit Union Administration, the Bureau of Consumer Financial
Protection, and the Federal Home Finance Agency, that implement the
minimum requirements in section 1473 of the Dodd-Frank Wall Street
Reform and Consumer Protection Act (Dodd-Frank Act) to be applied by
States in the registration and supervision of appraisal management
companies (AMCs). The regulations also implement the requirement in
section 1473 of the Dodd-Frank Act for States to report to the
Appraisal Subcommittee of the Federal Financial Institutions
Examination Council the information required by the ASC to administer
the new national registry of appraisal management companies (AMC
National Registry or Registry). The information collection requirements
are established in 12 CFR part 323 of the FDIC's codified regulations.
There is no change in the methodology or substance of this information
collection. The decrease in total estimated annual burden from 2,457 in
2021 to 1,991 currently is due to a change in the estimated number or
respondents.
Request for Comment
Comments are invited on (a) whether the collections of information
are necessary for the proper performance of the FDIC's functions,
including whether the information has practical utility; (b) the
accuracy of the estimates of the burden of the information collections,
including the validity of the methodology and assumptions used; (c)
ways to enhance the quality, utility, and clarity of the information to
be collected; and (d) ways to minimize the burden of the collections of
information on respondents, including through the use of automated
collection techniques or other forms of information technology. All
comments will become a matter of public record.
Federal Deposit Insurance Corporation.
Dated at Washington, DC, September 3, 2024.
James P. Sheesley,
Assistant Executive Secretary.
[FR Doc. 2024-20164 Filed 9-6-24; 8:45 am]
BILLING CODE 6714-01-P | usgpo | 2024-10-08T13:26:21.268201 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20164.htm"
} |
FR | FR-2024-09-09/2024-20255 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20255]
[[Page 73093]]
=======================================================================
-----------------------------------------------------------------------
FEDERAL RESERVE SYSTEM
Notice of Proposals To Engage in or To Acquire Companies Engaged
in Permissible Nonbanking Activities
The companies listed in this notice have given notice under section
4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and
Regulation Y, (12 CFR part 225) to engage de novo, or to acquire or
control voting securities or assets of a company, including the
companies listed below, that engages either directly or through a
subsidiary or other company, in a nonbanking activity that is listed in
Sec. 225.28 of Regulation Y (12 CFR 225.28) or that the Board has
determined by Order to be closely related to banking and permissible
for bank holding companies. Unless otherwise noted, these activities
will be conducted throughout the United States.
The public portions of the applications listed below, as well as
other related filings required by the Board, if any, are available for
immediate inspection at the Federal Reserve Bank(s) indicated below and
at the offices of the Board of Governors. This information may also be
obtained on an expedited basis, upon request, by contacting the
appropriate Federal Reserve Bank and from the Board's Freedom of
Information Office at https://www.federalreserve.gov/foia/request.htm.
Interested persons may express their views in writing on the question
whether the proposal complies with the standards of section 4 of the
BHC Act.
Comments received are subject to public disclosure. In general,
comments received will be made available without change and will not be
modified to remove personal or business information including
confidential, contact, or other identifying information. Comments
should not include any information such as confidential information
that would not be appropriate for public disclosure.
Unless otherwise noted, comments regarding the applications must be
received at the Reserve Bank indicated or the offices of the Board of
Governors, Ann E. Misback, Secretary of the Board, 20th Street and
Constitution Avenue NW, Washington, DC 20551-0001, not later than
September 24, 2024.
A. Federal Reserve Bank of Cleveland (Nadine M. Wallman, Vice
President) 1455 East Sixth Street, Cleveland, Ohio 44101-2566. Comments
can also be sent electronically to [email protected]:
1. The PNC Financial Services Group, Inc., Pittsburgh,
Pennsylvania; to engage in community development activities up to 15
percent of total consolidated capital and surplus pursuant to section
225.28(b)(12) of the Board's Regulation Y.
Board of Governors of the Federal Reserve System.
Michele Taylor Fennell,
Associate Secretary of the Board.
[FR Doc. 2024-20255 Filed 9-6-24; 8:45 am]
BILLING CODE P | usgpo | 2024-10-08T13:26:21.351264 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20255.htm"
} |
FR | FR-2024-09-09/2024-20245 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73093-73094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20245]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
[30Day-24-1430]
Agency Forms Undergoing Paperwork Reduction Act Review
In accordance with the Paperwork Reduction Act of 1995, the Centers
for Disease Control and Prevention (CDC) has submitted the information
collection request titled ``B. multivorans Ice Machine Multistate
Investigation'' to the Office of Management and Budget (OMB) for review
and approval. CDC previously published a ``Proposed Data Collection
Submitted for Public Comment and Recommendations'' notice on April 12,
2024 to obtain comments from the public and affected agencies. CDC did
not receive comments related to the previous notice. This notice serves
to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information
collection project. The Office of Management and Budget is particularly
interested in comments that:
(a) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to
be collected;
(d) 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, e.g., permitting
electronic submission of responses; and
(e) Assess information collection costs.
To request additional information on the proposed project or to
obtain a copy of the information collection plan and instruments, call
(404) 639-7570. Comments and recommendations for the proposed
information collection should be sent within 30 days of publication of
this notice to www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under 30-day Review--
Open for Public Comments'' or by using the search function. Direct
written comments and/or suggestions regarding the items contained in
this notice to the Attention: CDC Desk Officer, Office of Management
and Budget, 725 17th Street NW, Washington, DC 20503 or by fax to (202)
395-5806. Provide written comments within 30 days of notice
publication.
Proposed Project
B. Multivorans Ice Machine Multistate Investigation (OMB Control
No. 0920-1430, Exp. 9/30/2024)--Extension--National Center for Emerging
and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control
and Prevention (CDC).
Background and Brief Description
CDC has been assisting state and local jurisdictions investigate
clusters of Burkholderia multivorans infections among patients admitted
across four hospitals in two non-contiguous states. The outbreak strain
of the bacteria has been identified in environmental samples from ice
machines. Molecular analysis has shown that the bacterial strain
identified in ice machines is genetically highly similar to the patient
isolates. Further investigation revealed that the same brand of ice
machine and the same filters, descaling/cleaning, and sanitizing
products were used by the four hospitals. Epidemiologic and laboratory
evidence suggest the possibility of contaminated nonsterile ice and
water from the same brand of ice machines as a common source of
exposure.
Further investigation is needed to identify the scope of the
outbreak and the source of the ice machine contamination. CDC has
deemed it necessary to conduct a national call for cases requesting
that public health authorities report cases and clusters of B.
multivorans. A case report form was developed by CDC to assist
jurisdictions in this effort. Jurisdictions will gather information
using this case report form to assist in determining epidemiologic
characteristics and risk factors of patients with B. multivorans as
well as
[[Page 73094]]
potential source(s) of B. multivorans, including ice machines and ice
machine-related products (e.g., cleaning solutions). This data
collection will enable CDC to better ascertain risk factors for
transmission, potential source(s) of ice machine contamination, and
develop targeted infection prevention and control recommendations to
stop the transmission of the bacteria. Since this non-research public
health response remains active, CDC requests approval for continued
information collection activities for a period of three years. There
are no proposed changes to the current information collection
instrument. CDC requests OMB approval for an estimated 120 annualized
burden hours.
Estimated Annualized Burden Hours
----------------------------------------------------------------------------------------------------------------
Number of Average burden
Type of respondents Form name Number of responses per per response
respondents respondent (in hours)
----------------------------------------------------------------------------------------------------------------
Health department healthcare- B. multivorans outbreak 40 1 3
associated infections/antimicrobial investigation case
resistance (HAI/AR) program staff/ report form.
epidemiologists.
----------------------------------------------------------------------------------------------------------------
Jeffrey M. Zirger,
Lead, Information Collection Review Office, Office of Public Health
Ethics and Regulations, Office of Science, Centers for Disease Control
and Prevention.
[FR Doc. 2024-20245 Filed 9-6-24; 8:45 am]
BILLING CODE 4163-18-P | usgpo | 2024-10-08T13:26:21.386424 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20245.htm"
} |
FR | FR-2024-09-09/2024-20253 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20253]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
Meeting of the Mine Safety and Health Research Advisory Committee
AGENCY: Centers for Disease Control and Prevention (CDC), Department of
Health and Human Services (HHS).
ACTION: Notice of meeting.
-----------------------------------------------------------------------
SUMMARY: In accordance with the Federal Advisory Committee Act, the
Centers for Disease Control and Prevention (CDC) announces the
following meeting of the Mine Safety and Health Research Advisory
Committee (MSHRAC). This is a hybrid meeting, accessible both in person
and virtually. It is open to the public and limited only by the space
available and the number of web conference lines available. Time will
be available for public comment.
DATES: The meeting will be held on November 7, 2024, from 8:30 a.m. to
4:10 p.m., EST.
ADDRESSES: University of Kentucky, Mining and Minerals Resources
Building, Room 102, 310 Columbia Avenue, Lexington, Kentucky 40508. The
conference room accommodates approximately 100 people.
If you wish to attend the meeting either in person or virtually,
please contact Ms. Berni Metzger by email at [email protected] or by
phone at (412) 386-4541 at least 5 business days in advance of the
meeting. If you are attending virtually, she will provide you with the
Zoom web conference access information (500 web conference lines are
available).
FOR FURTHER INFORMATION CONTACT: Steven Mischler, Ph.D., Designated
Federal Officer, Mine Safety and Health Research Advisory Committee,
National Institute for Occupational Safety and Health, Centers for
Disease Control and Prevention, 626 Cochrans Mill Road, Pittsburgh,
Pennsylvania 15236. Telephone: (412) 386-5688; Email:
[email protected].
SUPPLEMENTARY INFORMATION:
Purpose: The Mine Safety and Health Research Advisory Committee
(MSHRAC) is charged with providing advice to the Secretary, Department
of Health and Human Services; the Director, Centers for Disease Control
and Prevention; and the Director, National Institute for Occupational
Safety and Health (NIOSH), on priorities in mine safety and health
research, including grants and contracts for such research, 30 U.S.C.
812(b)(2).
Matters to be Considered: The agenda will include discussions on
NIOSH mining safety and health research organizational structure,
capabilities, projects, and outcomes; discussions on intramural and
extramural silica research; and a verbal report from MSHRAC's Mace
Underground Mine Safety and Health Research Laboratory Development
Workgroup. The meeting will also include an update from the NIOSH
Associate Deputy Director, Mine Safety and Research. Agenda items are
subject to change as priorities dictate.
Public Participation
Written Public Comment: The public may submit written comments or
questions in advance of the meeting, to the Designated Federal Officer
(see FOR FURTHER INFORMATION CONTACT above). Written comments received
in advance of the meeting will be included in the official record of
the meeting, and questions will be answered during the oral comment
period open to public participation.
Oral Public Comment: The meeting will include time for members of
the public to make an oral comment. The public comment session will be
held on November 7, 2024, at 3:30 p.m., EST, or the conclusion of the
planned presentations, whichever comes first. Members of the public
will be allocated 5 to 10 minutes each for presentations or comments,
as a function of the number of commenters.
The Director, Office of Strategic Business Initiatives, Office of
the Chief Operating Officer, Centers for Disease Control and
Prevention, has been delegated the authority to sign Federal Register
notices pertaining to announcements of meetings and other committee
management activities, for both the Centers for Disease Control and
Prevention and the Agency for Toxic Substances and Disease Registry.
Kalwant Smagh,
Director, Office of Strategic Business Initiatives, Office of the Chief
Operating Officer, Centers for Disease Control and Prevention.
[FR Doc. 2024-20253 Filed 9-6-24; 8:45 am]
BILLING CODE 4163-18-P | usgpo | 2024-10-08T13:26:21.481922 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20253.htm"
} |
FR | FR-2024-09-09/2024-20252 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73094-73095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20252]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
Meeting of the Clinical Laboratory Improvement Advisory Committee
AGENCY: Centers for Disease Control and Prevention (CDC), Department of
Health and Human Services (HHS).
[[Page 73095]]
ACTION: Notice of meeting.
-----------------------------------------------------------------------
SUMMARY: In accordance with the Federal Advisory Committee Act, the
Centers for Disease Control and Prevention (CDC) announces the
following meeting for the Clinical Laboratory Improvement Advisory
Committee (CLIAC). This is a virtual meeting. It is open to the public,
limited only by the number of webcast lines available. Time will be
available for public comment, and the public is also welcome to submit
written comments in advance of the meeting (see the public
participation section below).
DATES: The meeting will be held on November 6, 2024, from 11 a.m. to 5
p.m., EST, and November 7, 2024, from 11 a.m. to 5 p.m., EST.
ADDRESSES: This is a virtual meeting. Meeting times are tentative and
subject to change. The confirmed meeting times, agenda items, and
meeting materials, including instructions for accessing the live
meeting broadcast, will be available on the CLIAC website at https://www.cdc.gov/cliac. Check the website for the web conference link.
FOR FURTHER INFORMATION CONTACT: Heather Stang, M.S., Senior Advisor
for Clinical Laboratories, Division of Laboratory Systems, Center for
Laboratory Systems and Response, Office of Laboratory Science and
Safety, Centers for Disease Control and Prevention, 1600 Clifton Road
NE, Mailstop V24-3, Atlanta, Georgia 30329-4027. Telephone: (404) 498-
2769; Email: [email protected].
SUPPLEMENTARY INFORMATION:
Purpose: The Clinical Laboratory Improvement Advisory Committee
(CLIAC) is charged with providing scientific and technical advice and
guidance to the Secretary, Department of Health and Human Services; the
Assistant Secretary for Health; the Director, Centers for Disease
Control and Prevention (CDC); the Commissioner, Food and Drug
Administration (FDA); and the Administrator, Centers for Medicare &
Medicaid Services (CMS). The advice and guidance pertain to general
issues related to improvement in clinical laboratory quality and
laboratory medicine and specific questions related to possible revision
of the Clinical Laboratory Improvement Amendments of 1988 (CLIA)
standards. Examples include providing guidance on studies designed to
improve quality, safety, effectiveness, efficiency, timeliness, equity,
and patient-centeredness of laboratory services; revisions to the
standards under which clinical laboratories are regulated; the impact
of proposed revisions to the standards on medical and laboratory
practice; the modification of the standards and provision of non-
regulatory guidelines to accommodate technological advances, such as
new test methods, electronic transmission of laboratory information,
and mechanisms to improve the integration of public health and clinical
laboratory practices.
Matters to be Considered: The agenda will include CDC, CMS, and FDA
agency updates. Presentations and CLIAC discussions will focus on
reports from two CLIAC workgroups, the Biosafety Workgroup and the Next
Generation Sequencing Workgroup; cybersecurity requirements in the
clinical laboratory; the determination of clinically relevant range of
values for proficiency testing samples; and the utilization of remote
technology for competency assessments. Agenda items are subject to
change as priorities dictate.
Public Participation
It is the policy of CLIAC to accept written public comments and
provide a brief period for oral public comments pertinent to agenda
items.
Oral Public Comment: Public comment periods for each agenda item
are scheduled immediately prior to the Committee discussion period for
that item. In general, each individual or group requesting to present
an oral comment will be limited to a total time of five minutes (unless
otherwise indicated). Speakers should email [email protected] or notify the
contact person above (see FOR FURTHER INFORMATION CONTACT) at least
five business days prior to the meeting date.
Written Public Comment: CLIAC accepts written comments until the
date of the meeting (unless otherwise stated). However, it is requested
that comments be submitted at least five business days prior to the
meeting date so that the comments may be made available to the
Committee for their consideration and public distribution. Written
comments should be submitted by email to [email protected] or to the
contact person above. All written comments will be included in the
meeting minutes posted on the CLIAC website.
The Director, Office of Strategic Business Initiatives, Office of
the Chief Operating Officer, Centers for Disease Control and
Prevention, has been delegated the authority to sign Federal Register
notices pertaining to announcements of meetings and other committee
management activities, for both the Centers for Disease Control and
Prevention and the Agency for Toxic Substances and Disease Registry.
Kalwant Smagh,
Director, Office of Strategic Business Initiatives, Office of the Chief
Operating Officer, Centers for Disease Control and Prevention.
[FR Doc. 2024-20252 Filed 9-6-24; 8:45 am]
BILLING CODE 4163-18-P | usgpo | 2024-10-08T13:26:21.503722 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20252.htm"
} |
FR | FR-2024-09-09/2024-20250 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73095-73096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20250]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
Solicitation of Nominations for Appointment to the Board of
Scientific Counselors Infectious Diseases
AGENCY: Centers for Disease Control and Prevention (CDC), Department of
Health and Human Services (HHS).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: In accordance with the Federal Advisory Committee Act, the
Centers for Disease Control and Prevention (CDC), within the Department
of Health and Human Services (HHS), is seeking nominations for
membership on the Board of Scientific Counselors Infectious Diseases
(BSC ID). The BSC ID consists of up to 17 experts from authorities
knowledgeable in the fields relevant to the issues addressed by CDC's
infectious disease national centers (e.g., respiratory diseases,
healthcare-associated infections, antimicrobial resistance, foodborne
diseases, zoonotic and vector-borne diseases, sexually transmitted
diseases, preparedness) and related specialties, including clinical and
public health practice (including state and local health departments),
laboratory practice, research, diagnostics, microbiology, immunology,
molecular biology, bioinformatics, infectious disease modeling and
outbreak analytics, health policy/communications, and industry.
DATES: Nominations for membership on the BSC ID must be received no
later than October 9, 2024. Packages received after this time will not
be considered for the current membership cycle.
ADDRESSES: All nominations should be mailed to the Centers for Disease
Control and Prevention, BSC ID, 1600 Clifton Road NE, Mailstop H16-5,
Atlanta, Georgia 30329-4027 or emailed to [email protected].
FOR FURTHER INFORMATION CONTACT: Sarah Wiley, M.P.H., Senior Advisor,
National Center for Emerging and Zoonotic Infectious Diseases, Centers
for Disease Control and Prevention, 1600
[[Page 73096]]
Clifton Road NE, Mailstop H16-5, Atlanta, Georgia 30329-4027.
Telephone: (404) 639-4840; Email: [email protected].
SUPPLEMENTARY INFORMATION: Nominations are sought for individuals who
have the expertise and qualifications necessary to contribute to the
accomplishment of the objectives of the Board of Scientific Counselors
Infectious Diseases (BSC ID). Nominees will be selected based on
expertise in the fields of infectious diseases and related specialties,
including those listed above. Federal employees will not be considered
for membership. Members may be invited to serve for up to four-year
terms. Selection of members is based on candidates' qualifications to
contribute to the accomplishment of BSC ID objectives (https://www.cdc.gov/bscid/php/about/index.html).
Department of Health and Human Services (HHS) policy stipulates
that committee membership be balanced in terms of points of view
represented and the committee's function. Appointments shall be made
without discrimination on the basis of age, race, ethnicity, gender,
sexual orientation, gender identity, HIV status, disability, and
cultural, religious, or socioeconomic status. Nominees must be U.S.
citizens and cannot be full-time employees of the U.S. Government.
Current participation on Federal workgroups or prior experience serving
on a Federal advisory committee does not disqualify a candidate;
however, HHS policy is to avoid excessive individual service on
advisory committees and multiple committee memberships. Board members
are Special Government Employees, requiring the filing of financial
disclosure reports at the beginning of and annually during their terms.
The Centers for Disease Control and Prevention (CDC) reviews potential
candidates for BSC ID membership each year and provides a slate of
nominees for consideration to the Secretary of HHS for final selection.
HHS notifies selected candidates of their appointment near the start of
the term in October 2025, or as soon as the HHS selection process is
completed. Note that the need for different expertise varies from year
to year and a candidate who is not selected in one year may be
reconsidered in a subsequent year.
Candidates should submit the following items:
Current curriculum vitae, including complete contact
information (telephone numbers, mailing address, email address).
At least one letter of recommendation from person(s) not
employed by HHS. Candidates may submit letter(s) from current HHS
employees if they wish, but at least one letter must be submitted by a
person not employed by an HHS agency (e.g., CDC, National Institutes of
Health, Food and Drug Administration).
Nominations may be submitted by the candidate or by the person/
organization recommending the candidate.
The Director, Office of Strategic Business Initiatives, Office of
the Chief Operating Officer, Centers for Disease Control and
Prevention, has been delegated the authority to sign Federal Register
notices pertaining to announcements of meetings and other committee
management activities, for both the Centers for Disease Control and
Prevention and the Agency for Toxic Substances and Disease Registry.
Kalwant Smagh,
Director, Office of Strategic Business Initiatives, Office of the Chief
Operating Officer, Centers for Disease Control and Prevention.
[FR Doc. 2024-20250 Filed 9-6-24; 8:45 am]
BILLING CODE 4163-18-P | usgpo | 2024-10-08T13:26:21.544272 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20250.htm"
} |
FR | FR-2024-09-09/2024-20226 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20226]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
Performance Review Board Members
AGENCY: Centers for Disease Control and Prevention (CDC), Department of
Health and Human Services (HHS).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Centers for Disease Control and Prevention (CDC) located
within the Department of Health and Human Services (HHS) is publishing
the names of the Performance Review Board Members who are reviewing
performance of Senior Executive Service (SES) members, Title 42 (T42)
executives, Senior Level (SL), and ST (Scientific Professional)
employees for fiscal year 2024.
FOR FURTHER INFORMATION CONTACT: Eva Osuchukwu, Team Chief, Executive
and Scientific Resources Office, Human Resources Office, Centers for
Disease Control and Prevention, 11 Corporate Square Blvd., Mailstop
US11-2, Atlanta, Georgia 30341, Telephone (404)783-7410.
SUPPLEMENTARY INFORMATION:
The Civil Service Reform Act of 1978 (Pub. L. 95-454, 5 U.S.C.
4314(c)(4)) requires that the appointment of Performance Review Board
Members be published in the Federal Register. The following persons
will serve on the CDC Performance Review Board, which will oversee the
evaluation of performance appraisals of Senior Executive Service
members for the fiscal year 2024 review period:
Arispe, Irma
Bonander, Jason
Dauphin, Leslie
Dulin, Stephanie
Durst, Kelley
Ethier, Kathleen, Co-Chair
George, Dylan
Kuhnert, Wendi
Laserson, Kayla
Perry, Terrance
Reh, Christopher
Taylor, Dia, Co-Chair
Tomlinson, Hank
Noah Aleshire,
Chief Regulatory Officer, Centers for Disease Control and Prevention.
[FR Doc. 2024-20226 Filed 9-6-24; 8:45 am]
BILLING CODE 4163-18-P | usgpo | 2024-10-08T13:26:21.584215 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20226.htm"
} |
FR | FR-2024-09-09/2024-20251 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73096-73097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20251]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
Solicitation of Nominations for Appointment to the Board of
Scientific Counselors, National Center for Health Statistics
AGENCY: Centers for Disease Control and Prevention (CDC), Department of
Health and Human Services (HHS).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: In accordance with the Federal Advisory Committee Act, the
Centers for Disease Control and Prevention (CDC), within the Department
of Health and Human Services (HHS), is seeking nominations for
membership on the Board of Scientific Counselors, National Center for
Health Statistics (BSC, NCHS). The BSC, NCHS consists of up to 15
experts including the Chair in fields associated with the scientific
and technical program objectives of the Center.
DATES: Nominations for membership on the BSC, NCHS will be accepted on
a rolling basis. To be considered for the upcoming nomination slate,
submissions should be received no later than November 22, 2024.
Submissions received after this time will not be considered for the
current membership cycle.
ADDRESSES: All nominations should be emailed to [email protected].
FOR FURTHER INFORMATION CONTACT: Naomi Michaelis, M.P.A., Designated
Federal Officer, Board of Scientific
[[Page 73097]]
Counselors, National Center for Health Statistics, Centers for Disease
Control and Prevention, 3311 Toledo Road, Hyattsville, Maryland 20782.
Telephone: (301) 332-3467; Email: [email protected].
SUPPLEMENTARY INFORMATION: Nominations are sought for individuals who
have the expertise and qualifications necessary to contribute to the
accomplishment of the objective of the Board of Scientific Counselors,
National Center for Health Statistics (BSC, NCHS) to provide advice and
guidance on statistical and epidemiological research, data collection,
and activities that support NCHS, such as: determinants of health;
extent and nature of illness and disability, including life expectancy;
incidence and prevalence of various acute and chronic illnesses/
impairments and accidental injuries; infant and maternal morbidity and
mortality; nutrition status; environmental, social, and other hazards
affecting health status; health resources associated with physician and
dental visits, hospitalizations, nursing, extended care facilities,
home health agencies, and other health institutions; utilization of
health care in a broad array of settings; trends in prices/costs and
sources of payments; Federal, State, and local government expenditures
for health care services; the relationship between demographic and
socioeconomic characteristics and health characteristics; family
formation, growth, and dissolution; new or improved methods for
obtaining current data on the aforementioned factors; data security and
confidentiality and comparability of data; and standardized means to
collect information and statistics.
Nominees will be selected based on expertise in fields associated
with statistical, demographic, and epidemiological research, such as
biostatistics/biometry, survey methodology and polling, sociology,
reproductive health, minority health, nutrition, social and behavioral
health sciences, and population-based public and environmental health;
public health practice, e.g., State and local health data systems;
operations research, health policy, and health services research,
including health economics and econometrics; provision of health
services, e.g., medicine, nursing, rehabilitation, other allied health
care, and preventive medicine; health quality measurement and health
indicators; health promotion; medical informatics; and data and health
information security, storage, confidentiality, and dissemination.
The Board makes recommendations about opportunities for NCHS
programs to examine and employ new approaches to monitoring and
evaluating key public health, health policy, and public policy changes.
This includes automation, data modernization, and technological
improvements to enhance data collection, analysis, access, and
reporting capabilities of the Center. Members of the BSC, NCHS are
responsible for maintaining awareness of emerging frameworks and
technologies related to their individual disciplines and for providing
updates and input, as appropriate, to the full Board through regular
meetings and/or convening of workshops or symposia.
The selection of members is based on candidates' qualifications to
contribute to accomplishing BSC, NCHS objectives (https://www.cdc.gov/nchs/about/bsc.htm). Members may be invited to serve for up to four-
year terms.
Department of Health and Human Services (HHS) policy stipulates
that committee membership be balanced in terms of points of view
represented and the committee's function. Appointments shall be made
without discrimination on the basis of age, race, ethnicity, gender,
sexual orientation, gender identity, HIV status, disability, and
cultural, religious, or socioeconomic status. Nominees must be U.S.
citizens and cannot be full-time employees of the U.S. Government.
Current participation on Federal workgroups or prior experience serving
on a Federal advisory committee does not disqualify a candidate;
however, HHS policy is to avoid excessive individual service on
advisory committees and multiple committee memberships. Board members
are Special Government Employees, requiring the filing of financial
disclosure reports at the beginning of and annually during their terms.
The Centers for Disease Control and Prevention (CDC) reviews potential
candidates for BSC, NCHS membership each year and provides a slate of
nominees for consideration to the Secretary of HHS for final selection.
HHS notifies selected candidates of their appointment near the start of
the term in June, or as soon as the HHS selection process is completed.
Note that the need for different expertise varies from year to year and
a candidate who is not selected in one year may be reconsidered in a
subsequent year.
Candidates should submit the following items:
[squf] Cover letter that includes a statement of interest for
serving on the Board and the names of two professional references.
Candidates may submit references from current HHS employees if they
wish, but at least one reference must be submitted by a person not
employed by an HHS agency (e.g., CDC, Health Resources and Services
Administration, National Institutes of Health, Agency for Healthcare
Research and Quality).
[squf] Current resume/curriculum vitae, including complete contact
information (telephone numbers, work and home postal mailing addresses,
email address) in Microsoft Word or PDF format.
[squf] Short biographical sketch, including the top 3-5 areas of
expertise.
Nominations may be submitted by the candidate or by the person/
organization recommending the candidate.
The Director, Office of Strategic Business Initiatives, Office of
the Chief Operating Officer, Centers for Disease Control and
Prevention, has been delegated the authority to sign Federal Register
notices pertaining to announcements of meetings and other committee
management activities, for both the Centers for Disease Control and
Prevention and the Agency for Toxic Substances and Disease Registry.
Kalwant Smagh,
Director, Office of Strategic Business Initiatives, Office of the Chief
Operating Officer, Centers for Disease Control and Prevention.
[FR Doc. 2024-20251 Filed 9-6-24; 8:45 am]
BILLING CODE 4163-18-P | usgpo | 2024-10-08T13:26:21.610270 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20251.htm"
} |
FR | FR-2024-09-09/2024-20236 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73097-73098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20236]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
[Document Identifiers: CMS-1984-14 and CMS-216-94]
Agency Information Collection Activities: Submission for OMB
Review; Comment Request
AGENCY: Centers for Medicare & Medicaid Services, Health and Human
Services (HHS).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Centers for Medicare & Medicaid Services (CMS) is
announcing an opportunity for the public to comment on CMS' intention
to collect information from the public. Under the Paperwork Reduction
Act of 1995 (PRA), Federal agencies are required to publish notice in
the Federal Register concerning each proposed collection of
information, including each proposed extension or reinstatement of an
existing collection of information, and to allow a second opportunity
for public
[[Page 73098]]
comment on the notice. Interested persons are invited to send comments
regarding the burden estimate or any other aspect of this collection of
information, including the necessity and utility of the proposed
information collection for the proper performance of the agency's
functions, the accuracy of the estimated burden, ways to enhance the
quality, utility, and clarity of the information to be collected, and
the use of automated collection techniques or other forms of
information technology to minimize the information collection burden.
DATES: Comments on the collection(s) of information must be received by
the OMB desk officer by October 9, 2024.
ADDRESSES: Written comments and recommendations for the proposed
information collection should be sent within 30 days of publication of
this notice to www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under 30-day Review--
Open for Public Comments'' or by using the search function.
To obtain copies of a supporting statement and any related forms
for the proposed collection(s) summarized in this notice, please access
the CMS PRA website by copying and pasting the following web address
into your web browser: https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/PRA-Listing.
FOR FURTHER INFORMATION CONTACT: William Parham at (410) 786-4669.
SUPPLEMENTARY INFORMATION: Under the Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from
the Office of Management and Budget (OMB) for each collection of
information they conduct or sponsor. The term ``collection of
information'' is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and
includes agency requests or requirements that members of the public
submit reports, keep records, or provide information to a third party.
Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires
Federal agencies to publish a 30-day notice in the Federal Register
concerning each proposed collection of information, including each
proposed extension or reinstatement of an existing collection of
information, before submitting the collection to OMB for approval. To
comply with this requirement, CMS is publishing this notice that
summarizes the following proposed collection(s) of information for
public comment:
1. Type of Information Collection Request: Extension of a currently
approved collection; Title of Information Collection: Hospice Facility
Cost Report Form; Use: Under the authority of sections 1815(a) and
1833(e) of the Social Security Act (the Act), CMS requires that
providers of services participating in the Medicare program submit
information to determine costs for health care services rendered to
Medicare beneficiaries. CMS requires that providers follow reasonable
cost principles under 1861(v)(1)(A) of the Act when completing the
Medicare cost report (MCR). The regulations at 42 CFR 413.20 and 413.24
require that providers submit acceptable cost reports on an annual
basis and maintain sufficient financial records and statistical data,
capable of verification by qualified auditors. In addition, regulations
require that providers furnish such Information to the contractor as
may be necessary to assure proper payment by the program, receive
program payments, and satisfy program overpayment determinations.
CMS regulations at 42 CFR 413.24(f)(4) require that each hospice
submit an annual cost report to their contractor in a standard American
Standard Code for Information Interchange (ASCII) electronic cost
report (ECR) format. A hospice submits the ECR file to contractors
using a compact disk (CD), flash drive, or the CMS approved Medicare
Cost Report E-filing (MCREF) portal, [URL: https://mcref.cms.gov]. The
instructions for submission are included in the hospice cost report
instructions on page 43-3.
CMS requires the Form CMS-1984-14 to determine a hospice's
reasonable costs incurred in furnishing medical services to Medicare
beneficiaries. CMS uses the Form CMS-1984-14 for rate setting; payment
refinement activities, including developing a market basket; Medicare
Trust Fund projections; and program operations support. Additionally,
the Medicare Payment Advisory Commission (MedPAC) uses the hospice cost
report data to calculate Medicare margins (a measure of the
relationship between Medicare's payments and providers' Medicare costs)
and analyze data to formulate Medicare Program recommendations to
Congress. Form Number: CMS-1984-14 (OMB control number: 0938-0758);
Frequency: Yearly; Affected Public: Private Sector, Business or other
for-profits, Not for profits institutions; Number of Respondents:
6,430; Total Annual Responses: 6,430; Total Annual Hours: 1,208,840.
(For policy questions regarding this collection contact Duncan Gail at
410-786-7278.)
2. Type of Information Collection: Extension of a currently
approved collection; Title of Information Collection: Organ Procurement
Organization Histocompatibility Laboratory Cost Report; Use: The Form
CMS-216-94 cost report is needed to determine Organ Procurement
Organization (OPO)/Histocompatibility Lab (HL) reasonable costs
incurred in procuring and transporting organs for transplant into
Medicare beneficiaries and reimbursement due to or from the provider.
The reasonable costs of procuring and transporting organs cannot be
determined for the fiscal year until the OPO/HL files its cost report
and costs are verified by the Medicare contractor. During the fiscal
year, an interim rate is established based on cost report data from the
previous year. The OPO/HL bills the transplant hospital for services
rendered. The transplant hospital pays interim payments, approximating
reasonable cost, to the OPO/HL. The Form CMS-216-94 cost report is
filed by each OPO/HL at the end of its fiscal year and there is a cost
report settlement to take into account increases or decreases in costs.
The cost report reconciliation and settlement take into consideration
the difference between the total reasonable costs minus the total
interim payments received or receivable from the transplant centers.
Form Number: CMS-216-94 (OMB control number: 0938-0102); Frequency:
Annually; Affected Public: Private Sector--Business or other for-
profits; Number of Respondents: 95; Total Annual Responses: 95; Total
Annual Hours: 4,275. (For policy questions regarding this collection
contact Luann Piccione at 410-786-5423.)
William N. Parham, III,
Director, Division of Information Collections and Regulatory Impacts,
Office of Strategic Operations and Regulatory Affairs.
[FR Doc. 2024-20236 Filed 9-6-24; 8:45 am]
BILLING CODE 4120-01-P | usgpo | 2024-10-08T13:26:21.690284 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20236.htm"
} |
FR | FR-2024-09-09/2024-20246 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73098-73100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20246]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA-2023-E-2484]
Determination of Regulatory Review Period for Purposes of Patent
Extension; PLUVICTO
AGENCY: Food and Drug Administration, HHS.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA or the Agency) has
determined the regulatory review period for PLUVICTO and is publishing
this notice of that determination as required
[[Page 73099]]
by law. FDA has made the determination because of the submission of an
application to the Director of the U.S. Patent and Trademark Office
(USPTO), Department of Commerce, for the extension of a patent which
claims that human drug product.
DATES: Anyone with knowledge that any of the dates as published (see
SUPPLEMENTARY INFORMATION) are incorrect may submit either electronic
or written comments and ask for a redetermination by November 8, 2024.
Furthermore, any interested person may petition FDA for a determination
regarding whether the applicant for extension acted with due diligence
during the regulatory review period by March 10, 2025. See
``Petitions'' in the SUPPLEMENTARY INFORMATION section for more
information.
ADDRESSES: You may submit comments as follows. Please note that late,
untimely filed comments will not be considered. The https://www.regulations.gov electronic filing system will accept comments until
11:59 p.m. Eastern Time at the end of November 8, 2024. Comments
received by mail/hand delivery/courier (for written/paper submissions)
will be considered timely if they are received on or before that date.
Electronic Submissions
Submit electronic comments in the following way:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments. Comments submitted
electronically, including attachments, to https://www.regulations.gov
will be posted to the docket unchanged. Because your comment will be
made public, you are solely responsible for ensuring that your comment
does not include any confidential information that you or a third party
may not wish to be posted, such as medical information, your or anyone
else's Social Security number, or confidential business information,
such as a manufacturing process. Please note that if you include your
name, contact information, or other information that identifies you in
the body of your comments, that information will be posted on https://www.regulations.gov.
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'').
Written/Paper Submissions
Submit written/paper submissions as follows:
Mail/Hand delivery/Courier (for written/paper
submissions): Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
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.''
Instructions: All submissions received must include the Docket No.
FDA-2023-E-2484 for ``Determination of Regulatory Review Period for
Purposes of Patent Extension; PLUVICTO.'' Received comments, those
filed in a timely manner (see ADDRESSES), will be placed in the docket
and, except for those submitted as ``Confidential Submissions,''
publicly viewable at https://www.regulations.gov or at the Dockets
Management Staff between 9 a.m. and 4 p.m., Monday through Friday, 240-
402-7500.
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 https://www.regulations.gov.
Submit both copies to the Dockets Management Staff. If you do not wish
your name and contact information to be made publicly available, you
can provide this information on the cover sheet and not in the body of
your comments and you must identify this information as
``confidential.'' Any information marked as ``confidential'' will not
be disclosed except in accordance with Sec. 10.20 (21 CFR 10.20) and
other applicable disclosure law. For more information about FDA's
posting of comments to public dockets, see 80 FR 56469, September 18,
2015, or access the information at: https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
Docket: For access to the docket to read background documents or
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in
the heading of this document, into the ``Search'' box and follow the
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane,
Rm. 1061, Rockville, MD 20852, 240-402-7500.
FOR FURTHER INFORMATION CONTACT: Beverly Friedman, Office of Regulatory
Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg.
51, Rm. 6200, Silver Spring, MD 20993, 301-796-3600.
SUPPLEMENTARY INFORMATION:
I. Background
The Drug Price Competition and Patent Term Restoration Act of 1984
(Pub. L. 98-417) and the Generic Animal Drug and Patent Term
Restoration Act (Pub. L. 100-670) generally provide that a patent may
be extended for a period of up to 5 years so long as the patented item
(human drug or biological product, animal drug product, medical device,
food additive, or color additive) was subject to regulatory review by
FDA before the item was marketed. Under these acts, a product's
regulatory review period forms the basis for determining the amount of
extension an applicant may receive.
A regulatory review period consists of two periods of time: a
testing phase and an approval phase. For human drug products, the
testing phase begins when the exemption to permit the clinical
investigations of the drug becomes effective and runs until the
approval phase begins. The approval phase starts with the initial
submission of an application to market the human drug product and
continues until FDA grants permission to market the drug product.
Although only a portion of a regulatory review period may count toward
the actual amount of extension that the Director of USPTO may award
(for example, half the testing phase must be subtracted as well as any
time that may have occurred before the patent was issued), FDA's
determination of the length of a regulatory review period for a human
drug product will include all of the testing phase and approval phase
as specified in 35 U.S.C. 156(g)(1)(B).
FDA has approved for marketing the human drug product, PLUVICTO
(lutetium Lu 177 vipivotide tetraxetan) indicated for the treatment of
adult patients with prostate-specific membrane antigen-positive
metastatic castration-resistant prostate cancer who have been treated
with androgen receptor pathway inhibition and taxane-
[[Page 73100]]
based chemotherapy. Subsequent to this approval, the USPTO received a
patent term restoration application for PLUVICTO (U.S. Patent No.
10,398,791) from Advanced Accelerator Applications USA, Inc. (Agent of
Deutsches Krebsforschungszentrum & Ruprecht-Karls-Universitat
Heidelberg) and the USPTO requested FDA's assistance in determining the
patent's eligibility for patent term restoration. In a letter dated
October 19, 2023, FDA advised the USPTO that this human drug product
had undergone a regulatory review period and that the approval of
PLUVICTO represented the first permitted commercial marketing or use of
the product. Thereafter, the USPTO requested that FDA determine the
product's regulatory review period.
II. Determination of Regulatory Review Period
FDA has determined that the applicable regulatory review period for
PLUVICTO is 1,881 days. Of this time, 1,643 days occurred during the
testing phase of the regulatory review period, while 238 days occurred
during the approval phase. These periods of time were derived from the
following dates:
1. The date an exemption under section 505(i) of the Federal Food,
Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 355(i)) became effective:
January 29, 2017. FDA has verified the applicant's claim that the date
the investigational new drug application became effective was on
January 29, 2017.
2. The date the application was initially submitted with respect to
the human drug product under section 505 of the FD&C Act: July 29,
2021. FDA has verified the applicant's claim that the new drug
application (NDA) for PLUVICTO (NDA 215833) was initially submitted on
July 29, 2021.
3. The date the application was approved: March 23, 2022. FDA has
verified the applicant's claim that NDA 215833 was approved on March
23, 2022.
This determination of the regulatory review period establishes the
maximum potential length of a patent extension. However, the USPTO
applies several statutory limitations in its calculations of the actual
period for patent extension. In its application for patent extension,
this applicant seeks 523 days of patent term extension.
III. Petitions
Anyone with knowledge that any of the dates as published are
incorrect may submit either electronic or written comments and, under
21 CFR 60.24, ask for a redetermination (see DATES). Furthermore, as
specified in Sec. 60.30 (21 CFR 60.30), any interested person may
petition FDA for a determination regarding whether the applicant for
extension acted with due diligence during the regulatory review period.
To meet its burden, the petition must comply with all the requirements
of Sec. 60.30, including but not limited to: must be timely (see
DATES), must be filed in accordance with Sec. 10.20, must contain
sufficient facts to merit an FDA investigation, and must certify that a
true and complete copy of the petition has been served upon the patent
applicant. (See H. Rept. 857, part 1, 98th Cong., 2d sess., pp. 41-42,
1984.) Petitions should be in the format specified in 21 CFR 10.30.
Submit petitions electronically to https://www.regulations.gov at
Docket No. FDA-2013-S-0610. Submit written petitions (two copies are
required) to the Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
Dated: September 4, 2024.
Lauren K. Roth,
Associate Commissioner for Policy.
[FR Doc. 2024-20246 Filed 9-6-24; 8:45 am]
BILLING CODE 4164-01-P | usgpo | 2024-10-08T13:26:21.734675 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20246.htm"
} |
FR | FR-2024-09-09/2024-20047 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73100-73101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20047]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Announcement of the President's Advisory Commission on Asian
Americans, Native Hawaiians, and Pacific Islanders Meeting and
Solicitation for Oral and Written Comments Regarding Activities To
Support the Advancement of Equity, Justice, and Opportunity for Asian
American, Native Hawaiian, and Pacific Islander Communities.
AGENCY: Department of Health and Human Services, Office of the
Secretary, Office of Intergovernmental and External Affairs, White
House Initiative on Asian Americans, Native Hawaiians, and Pacific
Islanders.
ACTION: Notice of meeting and solicitation for written and oral
comments.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Health and Human Services (HHS)
announces the tenth public meeting of the President's Advisory
Commission on Asian Americans, Native Hawaiians, and Pacific Islanders
(Commission) and the solicitation of written and oral comment regarding
the advancement of equity, justice, and opportunity for Asian American,
Native Hawaiian, and Pacific Islander (AA and NHPI) communities. The
meeting is open to the public and will be held in Washington, District
of Columbia. Virtual attendance will be available through livestream on
September 23, 2024. The Commission will also host an in-person, public
listening session on September 26, 2024, at the U.S. Department of
Transportation Headquarters Building in Washington, District of
Columbia. The Commission is working to accomplish its mission to
provide independent advice and recommendations to the President on ways
to advance equity, justice, and opportunity for AA and NHPI
communities.
DATES: The Commission will meet on September 23, 2024, from 9:15 a.m.
Eastern Time (ET) to 4 p.m. ET. The final location and agenda will be
posted on the website for the President's Advisory Commission on Asian
Americans, Native Hawaiians, and Pacific Islanders: https://www.hhs.gov/about/whiaanhpi/commission/index.html when this information
becomes available. On September 26, 2024, the Commission will also host
an in-person listening session from 11:20 a.m. Eastern Time (ET) to
12:10 p.m. ET during the White House Initiative on Asian Americans,
Native Hawaiians, and Pacific Islanders (WHIAANHPI) Policy Summit in
Washington, District of Columbia.
ADDRESSES: Members of the public may attend the meeting on September
23, 2024, virtually. Members of the public may attend the listening
session on September 26, 2024, in-person.
Registration is required through the following links:
September 23 meeting (virtual attendance only): https://www.eventbrite.com/e/meeting-of-the-presidents-advisory-commission-on-aa-and-nhpis-tickets-942107116747
September 26 listening session (in-person attendance only): https://www.eventbrite.com/e/white-house-aa-nhpi-policy-summit-tickets-942113816787
FOR FURTHER INFORMATION CONTACT: Judith Teruya, Lead Designated Federal
Officer, President's Advisory Commission on Asian Americans, Native
Hawaiians, and Pacific Islanders, U.S. Department of Health and Human
Services, Office of the Secretary, Office of Intergovernmental and
External Affairs, U.S. Department of Health and Human Services, Hubert
Humphrey Building, 620E, 200 Independence Ave. SW, Washington, DC
20201; email: [email protected]; telephone: (240) 856-3034.
SUPPLEMENTARY INFORMATION:
[[Page 73101]]
Background: The meeting is the tenth in a series of Federal
advisory committee meetings regarding the development of
recommendations to advance equity, justice, and opportunity for AA and
NHPI communities. The meeting is open to the public and will be live
streamed. The Commission, co-chaired by U.S. Health and Human Services
Secretary Xavier Becerra and the U.S. Trade Representative Ambassador
Katherine Tai, advises the President on: the development, monitoring,
and coordination of executive branch efforts to advance equity,
justice, and opportunity for AA and NHPI communities in the United
States, including efforts to close gaps in health, socioeconomic,
employment, and educational outcomes; policies to address and end anti-
Asian bias, xenophobia, racism, and nativism, and opportunities for the
executive branch to advance inclusion, belonging, and public awareness
of the diversity and accomplishments of AA and NHPI people, cultures,
and histories; policies, programs, and initiatives to prevent, report,
respond to, and track anti-Asian hate crimes and hate incidents; ways
in which the Federal Government can build on the capacity and
contributions of AA and NHPI communities through equitable Federal
funding, grantmaking, and employment opportunities; policies and
practices to improve research and equitable data disaggregation
regarding AA and NHPI communities; policies and practices to improve
language access services to ensure AA and NHPI communities can access
Federal programs and services; and strategies to increase public-and
private-sector collaboration, and community involvement in improving
the safety and socioeconomic, health, educational, occupational, and
environmental well-being of AA and NHPI communities.
Information is available on the President's Advisory Commission on
Asian Americans, Native Hawaiians, and Pacific Islanders website at
https://www.hhs.gov/about/whiaanhpi/commission/index.html. The names of
the members of the President's Advisory Commission on Asian Americans,
Native Hawaiians, and Pacific Islanders are available at https://www.hhs.gov/about/whiaanhpi/commission/commissioners/index.html.
Purpose of Meeting: The President's Advisory Commission on Asian
Americans, Native Hawaiians, and Pacific Islanders, authorized by
Executive Order 14031, as amended by Executive Order 14109, will meet
to discuss recommendations by the Commission's six subcommittees on
ways to advance equity, justice, and opportunity for Asian American,
Native Hawaiian, and Pacific Islander communities. The subcommittees
are: Belonging, Inclusion, Anti-Asian Hate, Anti-Discrimination; Data
Disaggregation and Education; Economic Equity; Health Equity;
Immigration and Citizenship Status; and Language Access and
Communications.
Public Participation at Meeting: Members of the public may attend
the meeting virtually. On September 26, the Commissioners will hold an
in person public listening session. Registration is required through
the following links:
September 23 (virtual attendance only): https://www.eventbrite.com/e/meeting-of-the-presidents-advisory-commission-on-aa-and-nhpis-tickets-942107116747
September 26 (in-person attendance only): https://www.eventbrite.com/e/white-house-aa-nhpi-policy-summit-tickets-942113816787
Written public comments: Written comments are welcomed throughout
the development of the Commission's recommendations to promote equity,
justice, and opportunity for Asian Americans, Native Hawaiians, and
Pacific Islanders and may be emailed to [email protected] at any
time. Respond concisely and in plain language. You may use any
structure or layout that presents your information well. You may
respond to some or all of the questions, and you can suggest other
factors or relevant questions. You may also include links to online
material or interactive presentations. Clearly mark any proprietary
information and place it in its own section or file. Your response will
become government property, and non-proprietary content may be
published as public record.
Oral public comments: Individuals may submit a request to make an
oral public comment at the September 26, 2024, in-person listening
session in response to the questions below. Advance copy of oral public
comment must be sent via email to [email protected] with the
subject line ``PACAANHPI: In-person Response to [insert the issue and
question]'' no later than 11:59 p.m. ET on Wednesday, September 18,
2024. Submissions received after the deadline will be considered for
oral public comment as availability allows. Your submitted oral comment
will become government property and may be published as part of the
meeting record.
Registration for oral public comment is on a first-come, first-
served basis. Comments are limited to two (2) minutes or less per
person. After the maximum number of speakers is exceeded, individuals
registered to provide oral comment will be placed on a wait list and
notified should an opening become available. You will be notified via
email no later than September 19, 2024, if you have been identified to
provide in-person public comment.
The Commission is interested in soliciting comments on the
following questions:
1. Is information on how to report hate crimes to local law
enforcement or the appropriate Federal authorities easily accessible to
members of your community?
2. In what ways could local law enforcement or relevant Federal
authorities make hate crimes reporting more accessible for vulnerable
communities, such as utilizing online reporting portals, telephone
reporting, or allowing third parties to submit incident reports on
behalf of victims?
3. In what ways could hate crimes reporting mechanisms be improved
or expanded to ensure victims of hate crimes are reporting incidents
back to law enforcement?
4. When you report a hate crime or hate incident to law enforcement
or a Federal agency, what outcome or response do you expect to receive
from the respective agency?
Authority: Executive Order 14031 as amended by Executive Order
14109. The President's Advisory Commission on Asian Americans, Native
Hawaiians, and Pacific Islanders is governed by provisions of the
Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C.
App.), which sets forth standards for the formation and use of Federal
advisory committees.
Krystal Ka`ai,
Executive Director, White House Initiative on Asian Americans, Native
Hawaiians, and Pacific Islanders, President's Advisory Commission on
Asian Americans, Native Hawaiians, and Pacific Islanders.
[FR Doc. 2024-20047 Filed 9-6-24; 8:45 am]
BILLING CODE 4150-28-P | usgpo | 2024-10-08T13:26:21.783633 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20047.htm"
} |
FR | FR-2024-09-09/2024-20232 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73101-73102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20232]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
National Committee on Vital and Health Statistics
AGENCY: Centers for Disease Control and Prevention, Department of
Health and Human Services.
ACTION: Notice of meeting.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Federal Advisory Committee Act, the Department
of Health and Human
[[Page 73102]]
Services (HHS) announces the following joint meeting of the
Subcommittee on Privacy, Confidentiality, and Security and the
Subcommittee on Standards, two subcommittees of the National Committee
on Vital and Health Statistics. This meeting is open to the public.
DATES: Thursday, September 19, 2024: 11 a.m.-5 p.m. EDT and Friday,
September 20, 2024: 10 a.m.-3 p.m. EDT.
ADDRESSES: Virtual open meeting. The public is welcome to obtain the
link to attend this meeting by following the instructions posted on the
Committee website: https://ncvhs.hhs.gov/meetings/full-committee-meeting-17/.
FOR FURTHER INFORMATION CONTACT: Substantive program information may be
obtained from Naomi Michaelis, MPA, Executive Secretary, NCVHS,
National Center for Health Statistics, Centers for Disease Control and
Prevention, 3311 Toledo Road, Hyattsville, Maryland 20782, or via
electronic mail to [email protected]; or by telephone (301) 458-4202.
Summaries of meetings and a roster of Committee members are available
on the NCVHS website https://ncvhs.hhs.gov/, where further information
including an agenda and instructions to access the broadcast of the
meeting will be posted.
Should you require reasonable accommodation, please telephone the
CDC Office of Equal Employment Opportunity at (770) 488-3210 as soon as
possible.
SUPPLEMENTARY INFORMATION: As outlined in its Charter, the National
Committee on Vital and Health Statistics assists and advises the
Secretary of HHS on health data, data standards, statistics, privacy,
national health information policy, and the Department's strategy to
best address those issues. The original authorities of NCVHS are
described at 42 U.S. Code 242k. Additional authorities were added by
the Health Insurance Portability and Accountability Act of 1996 (HIPAA,
Pub. L. 104-191, 110 Stat. 1936, Aug. 21, 1996), under which NCVHS
advises the Secretary on administrative simplification standards,
including those for privacy, security, adoption and implementation of
transaction standards, unique identifiers, code sets, and operating
rules adopted under the Patient Protection and Affordable Care Act
(ACA, Pub. L. 111-148, 124 Stat, 119, Mar. 23, 2010). Included in HIPAA
is the statutory reporting requirement that the Committee submit to
Congress and make public, a report regarding the implementation of part
C of title XI of the Social Security Act.
Purpose: The purpose of the Joint Meeting of the Subcommittee on
Privacy, Confidentiality and Security and the Subcommittee on Standards
is to gather information and plan for upcoming projects. There will be
a panel on privacy and security in health data access with invited
experts. The agenda will also include updates from the Department, an
update on the ongoing work of the ICD-11 Workgroup, and preparation for
the upcoming work of the Subcommittee on Standards and a celebration of
the 75th anniversary of the Committee.
The Committee will reserve time on the agenda for public comment.
Meeting times and topics are subject to change. Please refer to the
agenda posted on the NCVHS website for updates: https://ncvhs.hhs.gov/meetings/full-committee-meeting-17/.
Sarah Lessem,
Executive Director, NCVHS, Senior Data Policy Analyst, Office of
Science and Data Policy, Office of the Assistant Secretary for Planning
and Evaluation.
[FR Doc. 2024-20232 Filed 9-6-24; 8:45 am]
BILLING CODE 4150-05-P | usgpo | 2024-10-08T13:26:21.885988 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20232.htm"
} |
FR | FR-2024-09-09/2024-20268 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73102-73103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20268]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
National Institutes of Health
National Institute on Drug Abuse; Notice of Closed Meetings
Pursuant to section 1009 of the Federal Advisory Committee Act, as
amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the
provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5
U.S.C., as amended. The grant applications and the discussions could
disclose confidential trade secrets or commercial property such as
patentable material, and personal information concerning individuals
associated with the grant applications, the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.
Name of Committee: National Institute on Drug Abuse, Initial
Review Group; Career Development Education and Training Study
Section.
Date: October 24-25, 2024.
Time: 9:30 a.m. to 5:30 p.m.
Agenda: To review and evaluate grant applications.
Place: National Institute of Health, National Institute on Drug
Abuse, 301 North Stonestreet Avenue, Bethesda, MD 20892 (Virtual
Meeting).
Contact Person: Sindhu Kizhakke Madathil, Ph.D., Scientific
Review Officer, Division of Extramural Research, Scientific Review
Branch, National Institute on Drug Abuse, NIH, 301 North Stonestreet
Avenue, MSC 6021, Bethesda, MD 20892, (301) 827-5702,
[email protected].
Name of Committee: National Institute on Drug Abuse Special
Emphasis Panel; Transformative Research on the Basic Mechanisms of
Polysubstance Use in Addiction.
Date: November 1, 2024.
Time: 9:30 a.m. to 5:30 p.m.
Agenda: To review and evaluate grant applications.
Place: National Institute of Health, National Institute on Drug
Abuse, 301 North Stonestreet Avenue, Bethesda, MD 20892 (Virtual
Meeting).
Contact Person: Sindhu Kizhakke Madathil, Ph.D., Scientific
Review Officer, Division of Extramural Research, Scientific Review
Branch, National Institute on Drug Abuse, NIH, 301 North Stonestreet
Avenue, MSC 6021, Bethesda, MD 20892, (301) 827-5702,
[email protected].
Name of Committee: National Institute on Drug Abuse Special
Emphasis Panel; Addressing HIV in Highest Risk Sexual and Gender
Minorities.
Date: November 4, 2024.
Time: 12:30 p.m. to 4:00 p.m.
Agenda: To review and evaluate grant applications.
Place: National Institute of Health, National Institute on Drug
Abuse, 301 North Stonestreet Avenue, Bethesda, MD 20892 (Virtual
Meeting).
Contact Person: Shareen Amina Iqbal, Ph.D., Scientific Review
Officer, Division of Extramural Research, Scientific Review Branch,
National Institute on Drug Abuse, NIH, 301 North Stonestreet Avenue,
MSC 6021, Bethesda, MD 20892, (301) 443-4577, [email protected].
Name of Committee: National Institute on Drug Abuse Special
Emphasis Panel; Functional Validation and/or Characterization of
Genes or Variants Implicated in Substance Use Disorders and NIDA
Animal Genomics Program.
Date: November 19, 2024.
Time: 10:00 a.m. to 5:00 p.m.
Agenda: To review and evaluate grant applications.
Place: National Institute of Health, National Institute on Drug
Abuse, 301 North Stonestreet Avenue, Bethesda, MD 20892 (Virtual
Meeting).
Contact Person: Devon Rene Oskvig, Ph.D., Scientific Review
Officer, Division of Extramural Research, Scientific Review Branch,
National Institute on Drug Abuse, NIH, 301 North Stonestreet Avenue,
MSC 6021, Bethesda, MD 20892, (301) 402-6965, [email protected].
(Catalogue of Federal Domestic Assistance Program Nos. 93.277, Drug
Abuse Scientist Development Award for Clinicians, Scientist
Development Awards, and Research Scientist Awards; 93.278, Drug
Abuse National Research Service Awards for Research Training;
93.279, Drug Abuse and Addiction Research Programs, National
Institutes of Health, HHS)
[[Page 73103]]
Dated: September 4, 2024
Lauren A. Fleck,
Program Analyst, Office of Federal Advisory Committee Policy.
[FR Doc. 2024-20268 Filed 9-6-24; 8:45 am]
BILLING CODE 4140-01-P | usgpo | 2024-10-08T13:26:21.921546 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20268.htm"
} |
FR | FR-2024-09-09/2024-20184 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20184]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Substance Abuse and Mental Health Services Administration
Fiscal Year (FY) 2024 Notice of Supplemental Funding Opportunity
AGENCY: Substance Abuse and Mental Health Services Administration,
Department of Health and Human Services (HHS).
ACTION: Notice of intent to award supplemental funding.
-----------------------------------------------------------------------
SUMMARY: This notice is to inform the public that the Substance Abuse
and Mental Health Services Administration (SAMHSA) is supporting
administrative supplements in scope of the parent award for the 59-
eligible Community Mental Health Services Block Grant (MHBG) recipients
funded under the FFY 2024-2025 Combined Block Grant Application (OMB
Control Number 0930-0168). The distribution of MHBG funds, including
funds allocated for technical assistance, must adhere to a statutory
formula. The formula considers the population at risk, the cost of
providing services, and other relevant factors. To comply with these
requirements, technical assistance funds will be distributed to States
and territories using this established formula. These awards have a
project end date of September 30, 2025.
FOR FURTHER INFORMATION CONTACT: Asha Stanly, MHBG Program Coordinator,
Substance Abuse and Mental Health Services Administration, 5600 Fishers
Lane, Rockville, MD 20857, telephone (240) 276-1845; email:
[email protected].
SUPPLEMENTARY INFORMATION:
Funding Opportunity Title: FY 2024 Community Mental Health Services
Block Grant OMB No. 0930-0168.
Assistance Listing Number: 93.958.
Authority: Sections 1911-1920 of title XIX, part B, subpart I of
the Public Health Service Act (42 U.S.C. 300x-300x-9) and sections
1941-1956 of title XIX, part B, subpart III of the Public Health
Service Act (42 U.S.C. 300x-51-66).
Justification: Eligibility for this supplemental funding is limited
to the 59 MHBG recipients of MHBG funding under the FFY 2024-2025
Combined Block Grant Application (OMB Control Number 0930-0168).
This is not a formal request for application. Assistance will only
be provided to the 59 MHBG recipients based on the receipt of a written
statement from the MHBG recipients, confirming their interest in
receiving these funds.
Dated: September 3, 2024.
Savannah Kidd,
Public Health Analyst.
[FR Doc. 2024-20184 Filed 9-6-24; 8:45 am]
BILLING CODE 4162-20-P | usgpo | 2024-10-08T13:26:22.272536 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20184.htm"
} |
FR | FR-2024-09-09/2024-20183 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20183]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Substance Abuse and Mental Health Services Administration
Fiscal Year (FY) 2024 Notice of Supplemental Funding Opportunity
AGENCY: Substance Abuse and Mental Health Services Administration,
Department of Health and Human Services (HHS).
ACTION: Notice of intent to award supplemental funding.
-----------------------------------------------------------------------
SUMMARY: This notice is to inform the public that the Substance Abuse
and Mental Health Services Administration (SAMHSA) is supporting
administrative supplements in scope of the parent award for the 56
eligible grant recipients funded in FY 2024 Projects for Assistance in
Transition from Homelessness Grant (PATH), Notice of Funding
Opportunity (NOFO) SM-24-F2. Each PATH recipient may receive up to
$8,967. These awards have a project end date of September 29, 2025.
FOR FURTHER INFORMATION CONTACT: Dorrine Gross, PATH Program
Coordinator, Substance Abuse and Mental Health Services Administration,
5600 Fishers Lane, Rockville, MD 20857, Telephone (240) 276-1898;
Email: [email protected].
SUPPLEMENTARY INFORMATION:
Funding Opportunity Title: FY 2024 Projects for Assistance in
Transition from Homelessness, SM-24-F2.
Assistance Listing Number: 93.150.
Authority: The PATH program was originally authorized as section
521 of the Public Health Service Act (42 U.S.C. 290cc-21) established
by the Stewart B. McKinney Homeless Assistance Amendments Act of 1990
(Pub. L. 101-645) and was most recently re-authorized through the
Consolidated Appropriations Act, 2023 (Pub. L. 117-328).
Justification: Eligibility for this supplemental funding is limited
to the 56 PATH recipients awarded under funding announcement SM-24-F2
as they are currently providing services as defined in statute.
This is not a formal request for application. Assistance will only
be provided to the 56 PATH recipients based on the receipt of a
statement requesting the funds, including a description of how the PATH
recipient intends to use the supplemental funds.
Dated: September 3, 2024.
Savannah Kidd,
Supervisory Public Health Analyst.
[FR Doc. 2024-20183 Filed 9-6-24; 8:45 am]
BILLING CODE 4162-20-P | usgpo | 2024-10-08T13:26:22.362988 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20183.htm"
} |
FR | FR-2024-09-09/2024-20188 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73103-73104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20188]
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
[Docket ID FEMA-2007-0008]
National Advisory Council; Meeting
AGENCY: Federal Emergency Management Agency, Department of Homeland
Security.
ACTION: Notice of open Federal advisory committee meeting.
-----------------------------------------------------------------------
SUMMARY: The Federal Emergency Management Agency's National Advisory
Council (NAC) will meet on Sept. 25-26, 2024 to publicly consider,
deliberate and vote upon draft recommendations developed by NAC
subcommittees in 2024. This meeting will be open to the public through
virtual means and, space permitting, to in-person attendance requests.
DATES: The NAC plans to meet and invite the public to watch and
participate by virtual means from noon to 4:15 p.m. Eastern Time (ET)
on Wednesday, Sept. 25; and from 1 p.m. to 5:15 p.m. ET on Thursday,
Sept. 26. The meeting may pause for breaks or continue past the
scheduled end time or may end early any day that the NAC has completed
its business.
ADDRESSES: Anyone who wishes to participate virtually must register
with FEMA in advance by providing their name, official title,
organization, telephone number, and email address to the person listed
in the FOR FURTHER INFORMATION CONTACT section below by 3 p.m. ET on
Friday, Sept. 20. Anyone willing to meet the access requirements of the
secure facility at 1015 Half St. SE, Washington, DC 20003 at which this
meeting will be held may request to be considered for in-person
participation, space permitting, if the request is received by 3 p.m.
on Wednesday, Sept.
[[Page 73104]]
18. All members of the public are urged to provide written comments on
the issues to be considered by the NAC in advance. The topic areas are
indicated in the SUPPLEMENTARY INFORMATION section below. Any written
comments must be submitted and received by 3 p.m. ET on Friday, Sept.
20, identified by Docket ID FEMA-2007-0008, and submitted via the
Federal eRulemaking Portal at http://www.regulations.gov, following the
instructions for submitting comments below.
Instructions for Submitting Comments: All submissions must include
the words ``Federal Emergency Management Agency'' and the docket number
(Docket ID FEMA-2007-0008) for this action. Comments received,
including any personal information provided, will be posted without
alteration at http://www.regulations.gov. For access to the docket or
to read comments received by the NAC, go to http://www.regulations.gov,
and search for Docket ID FEMA-2007-0008.
An open public comment period is anticipated on Thursday, Sept. 26,
from 5 to 5:15 p.m. ET. All speakers must register in advance of the
meeting to ensure their place, first-come, first-served, in the open
public comment period. Speakers must limit their comments to three
minutes. Comments should be addressed to the NAC. Comments unrelated to
posted agenda topics will not be considered. To register to make
remarks during the public comment period, contact the person listed in
the FOR FURTHER INFORMATION CONTACT section below by 3 p.m. ET on
Friday, Sept. 20. Please note that the open public comment period may
end before the time indicated, following the last call for comments.
The Designated Federal Officer may, as time permits during the meeting,
offer additional opportunities for public participant comments on
Wednesday, Sept. 25 and Thursday, Sept. 26.
The NAC is committed to ensuring all participants have equal access
regardless of disability status. If you require a reasonable
accommodation due to a disability to fully participate, please contact
the individual listed in the FOR FURTHER INFORMATION CONTACT section
below as soon as possible. Last-minute requests will be accepted but
may not be possible to fulfill.
FOR FURTHER INFORMATION CONTACT: Rob Long, Designated Federal Officer,
Office of the National Advisory Council, Federal Emergency Management
Agency, 500 C St. SW, Washington, DC 20472-3184, 202-646-2700, [email protected]. The NAC website is https://www.fema.gov/about/offices/national-advisory-council.
SUPPLEMENTARY INFORMATION: Notice of this meeting is given under the
Federal Advisory Committee Act, 5 U.S.C. ch. 10.
The NAC advises the FEMA Administrator on all aspects of emergency
management. The NAC includes and incorporates input from a cross-
section of officials, emergency managers, and emergency response
providers from state, local, Tribal and territorial governments, the
private sector, and nongovernmental organizations.
Agenda: On Wednesday, Sept. 25, the NAC subcommittees on climate,
gender-based violence, and readiness and workforce, will present to the
full NAC on their final annual recommendations. Additionally, the NAC
will deliberate and vote on recommendations from the Preliminary Damage
Assessment Advisory Panel. On Thursday, Sept. 26, the NAC will
deliberate and vote on adoption of NAC 2024 recommendations not already
adopted the prior day. The public meeting agenda and any preparatory
materials will be available on Friday, Sept. 20 at https://www.fema.gov/about/offices/national-advisory-council.
Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2024-20188 Filed 9-6-24; 8:45 am]
BILLING CODE 9111-48-P | usgpo | 2024-10-08T13:26:22.581523 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20188.htm"
} |
FR | FR-2024-09-09/2024-20155 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73104-73109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20155]
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DEPARTMENT OF HOMELAND SECURITY
[Docket No. FEMA-2024-0019]
Privacy Act of 1974; System of Records
AGENCY: Federal Emergency Management Agency, U.S. Department of
Homeland Security.
ACTION: Notice of a modified system of records.
-----------------------------------------------------------------------
SUMMARY: In accordance with the Privacy Act of 1974, the U.S.
Department of Homeland Security (DHS)/Federal Emergency Management
Agency (FEMA) proposes to modify and reissue an existing DHS system of
records titled, ``DHS/FEMA-008 Disaster Recovery Assistance Files
System of Records.'' This system of records describes DHS/FEMA's
collection and maintenance of records on applicants for its Disaster
Assistance programs that provide financial and other assistance to
survivors of Presidentially declared disasters or emergencies. DHS/FEMA
is updating this system of records notice to add or modify several
routine uses and update the categories of records. This modified system
will be included in DHS's inventory of record systems.
DATES: Submit comments on or before October 9, 2024. This modified
system will be effective upon publication. New or modified routine uses
will be effective October 9, 2024.
ADDRESSES: You may submit comments, identified by docket number FEMA-
2024-0019 by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 202-343-4010.
Mail: Deborah T Fleischaker, Chief Privacy Officer (A),
Privacy Office, U.S. Department of Homeland Security, Washington, DC
20528-0655.
Instructions: All submissions received must include the agency name
and docket number FEMA-2024-0019. All comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For general questions, please contact:
Russell Bard, (202) 766-0582, [email protected], Chief Privacy
Officer, Federal Emergency Management Agency, U.S. Department of
Homeland Security, Washington, DC 20528. For privacy questions, please
contact: Deborah T Fleischaker, [email protected], Chief Privacy
Officer (A), Privacy Office, U.S. Department of Homeland Security,
Washington, DC 20528-0655.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, this
modified system of records notice is being published because the
Federal Emergency Management Agency (FEMA) collects, maintains, uses,
retrieves, and disseminates personally identifiable information of
individuals who apply for FEMA disaster assistance when a Presidential
disaster declaration or emergency has occurred or may be imminent.
Applicant records maintained in this FEMA system may contain income
information, insurance information, housing inspection reports,
correspondence and notations about delivery of various types of
assistance,
[[Page 73105]]
and appeals and recovery of disaster assistance funds information.
The purpose of this system of records is to facilitate registration
for FEMA's disaster assistance programs; correspond with applicants;
verify Individuals and Households Program (IHP) Assistance applicant
information; determine the eligibility of applicants; and focus,
direct, and refer applicants to all sources of disaster assistance.
Additional purposes include: preventing a duplication of Federal
Government efforts and benefits; identifying the potential misuse of
disaster assistance; identifying disaster assistance provided in error;
identifying and preventing possible fraudulent activity in anticipation
of or after a Presidentially declared major disaster or emergency; and
assessing FEMA's disaster assistance programs for equity and customer
satisfaction. The information maintained in this system of records may
also be used by FEMA to identify and implement measures to reduce
future disaster damage. To accomplish these purposes, FEMA may maintain
investigative summary reports in this system of records to support the
recoupment, appeals, and oral hearing processes.
FEMA is updating this system of records notice to reflect the
following changes: the addition and modification of new routine uses
and an addition to the categories of records maintained in the system.
Routine Use I is being modified for clarity by separating the two
purposes of addressing disaster-related unmet needs and duplication of
benefits into distinct routine uses. Routine Use J is being modified to
allow FEMA to more broadly share data to appropriate agencies and
organizations to assist with addressing disaster-related unmet needs of
survivors and to specifically allow FEMA to share data limited to
survivor name and contact information when certain entities that do not
address disaster-related unmet needs of survivors provide other
services like outreach or referrals. This modification also will enable
FEMA to share data with local government entities that provide services
to address disaster-related unmet needs, for example, if a local
government needs to implement a State disaster program. This need often
arises with States that require the use of local resources to implement
the State disaster program. Additionally, Routine Use K has been added,
replacing the previous Routine Use K, to cover limited sharing to
government and private entities that issue permits and connect
utilities to FEMA-provided temporary housing units for FEMA applicants
eligible for direct temporary housing assistance, previously addressed
(in part) under Routine Use I. Proceeding routine uses have been re-
lettered accordingly.
The categories of records have been updated to include the data
element Contractor Identification (ID). Contractor ID is a unique
number specific to each contractor FEMA hires to conduct damage
inspections of homes after a declared disaster to enable FEMA to
determine survivor eligibility for assistance. FEMA added Contractor ID
for a more comprehensive list of data included in the Inspection
Reports and for quality control purposes.
Consistent with DHS's information sharing mission, information
stored within the DHS/FEMA-008 Disaster Recovery Assistance Files
System of Records may be shared with other DHS Components that have a
need to know the information to carry out their national security, law
enforcement, immigration, intelligence, or other homeland security
functions. In addition, DHS/FEMA may share information with appropriate
Federal, State, local, Tribal, territorial, foreign, or international
government agencies consistent with the routine uses set forth in this
system of records notice.
This modified system will be included in DHS's inventory of record
systems.
II. Privacy Act
The Privacy Act embodies fair information practice principles in a
statutory framework governing the means by which Federal Government
agencies collect, maintain, use, and disseminate individuals' records.
The Privacy Act applies to information that is maintained in a ``system
of records.'' A ``system of records'' is a group of any records under
the control of an agency from which information is retrieved by the
name of an individual or by some identifying number, symbol, or other
identifying particular assigned to the individual. In the Privacy Act,
an individual is defined to encompass U.S. citizens and lawful
permanent residents. Additionally, the Judicial Redress Act (JRA)
provides covered persons with a statutory right to make requests for
access and amendment to covered records, as defined by the JRA, and
judicial review for denials of such requests. In addition, the JRA
prohibits disclosure of covered records, except as otherwise permitted
by the Privacy Act.
Below is the description of the DHS/FEMA-008 Disaster Recovery
Assistance Files System of Records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of
this system of records to the Office of Management and Budget and
Congress.
SYSTEM NAME AND NUMBER:
Department of Homeland Security (DHS)/Federal Emergency Management
Agency (FEMA)-008 Disaster Recovery Assistance Files System of Records.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
DHS/FEMA maintains records at the FEMA Headquarters in Washington,
DC; FEMA Regional Offices; Joint Field Offices; National Processing
Service Centers; Disaster Recovery Centers; and the DHS/FEMA data
centers located in Bluemont, Virginia and Clarksville, Virginia.
SYSTEM MANAGER(S):
Deputy Director, Individual Assistance Division, (202) 646-3642,
[email protected], Federal Emergency Management Agency,
500 C Street SW, Washington, DC 20472.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
Robert T. Stafford Disaster Relief and Emergency Assistance Act
(the Stafford Act), Public Law 93-288, as amended (42 U.S.C. 5121-
5207); 6 U.S.C. 728, 776, 777, and 795; the Debt Collection Improvement
Act of 1996, 31 U.S.C. 3325(d) and 7701(c)(1); the Government
Performance and Results Act, Public Law 103-62, as amended; Executive
Order 13411; and Executive Order 12862.
PURPOSE(S) OF THE SYSTEM:
The purpose of this system is to register applicants seeking
disaster assistance from FEMA after a Presidential major disaster
declaration or emergency and when a declaration may be imminent, but
not yet declared; verify Individuals and Households Program applicant
information; determine eligibility of applicants; correspond with,
focus, direct, and refer applicants to available sources of disaster
assistance; and inspect damaged property. Additional purposes include:
to identify and implement measures to reduce future disaster damage;
prevent or correct a duplication of Federal Government efforts and
benefits; identify possible fraudulent activity after a Presidentially
declared disaster or emergency; identify assistance provided in error,
funds spent inappropriately by the applicant, or misuse of disaster
assistance; and assess the customer satisfaction of FEMA disaster
assistance applicants.
[[Page 73106]]
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
All individuals and their household members who apply for or
express interest in applying for FEMA disaster assistance following a
Presidentially declared major disaster or emergency and when a
declaration may be imminent (Note: FEMA will accept applications from
any individual; however, an individual must self-certify as a U.S.
citizen, non-citizen national, or qualified non-citizen to meet the
eligibility requirements for Individuals and Households Program
Assistance). Individuals also include those who apply for or express
interest in non-FEMA assistance programs to facilitate a duplication of
benefits check or determination of unmet needs.
CATEGORIES OF RECORDS IN THE SYSTEM:
(a) Registration and Assistance Records.
Disaster number;
FEMA Registration ID/Occupant ID;
Applicant/co-applicant information:
[cir] Full name;
[cir] Social Security number or A-Number;
[cir] Citizenship status;
[cir] Signature;
[cir] Date of birth;
[cir] Phone numbers;
[cir] Email addresses;
[cir] Mailing addresses;
[cir] Position title and number of years;
[cir] Employer name;
[cir] Language(s) spoken;
[cir] Number of dependents claimed;
[cir] User ID;
[cir] Password; and
[cir] Personal Identification Number (PIN).
Witness name and signature;
Damaged dwelling:
[cir] Addresses of the damaged dwelling and the applicant's current
address (if other than the damaged dwelling);
[cir] County;
[cir] Geospatial location of the damaged dwelling; and
[cir] Information related to the residence (accessibility, type,
own/rent, damage sustained).
Disaster-related expenses;
Emergency needs (e.g., food, clothing, shelter);
Disability-related needs and accommodations (e.g., sign
language interpreter, Assistive Listening Device, braille, wheelchair
access, mobility, mental, hearing, vision, other needs and
accommodations);
Occupant and household information (for all occupants at
the time of disaster):
[cir] Name (first name, middle initial, last name);
[cir] Age;
[cir] Relationship to applicant;
[cir] Dependent;
[cir] Sex;
[cir] Pre- and post-disaster income information of occupants 18
years of age or older; and
[cir] Tribal Membership Status (if applicable).
Business damage:
[cir] Self-employment is primary income (Yes/No); and
Business or rental property affected? (Yes/No)
Authorization for electronic funds transfer of benefits:
[cir] Institution name;
[cir] Account type; and
[cir] Account number and routing number.
Comments and correspondence from the applicant;
Supporting documents that show proof of occupancy or
ownership of a dwelling and/or verify identity. This includes:
[cir] Driver's license;
[cir] State/Federal issued photo identification;
[cir] Mortgage payment receipts;
[cir] Real property insurance;
[cir] Tax receipts or property tax bill;
[cir] Property title;
[cir] Contract for deed;
[cir] Voter registration card;
[cir] Death certificate and will; and/or
[cir] Maintenance receipts.
Public records information for identity verification;
Pre-registration questionnaire information;
Disaster loan status (i.e., rejected, approved, declined,
verified, cancelled);
Applicant travel and accommodations related information
(e.g., flight information, travel assistance needs, companion
information);
Information related to determining eligibility for
assistance, including date of the disaster, application status,
insurance information, types and amount of damage to the dwelling,
supporting documentation (e.g., death certificates, invoices, receipts,
and documentation to support accommodations or access and functional
need requests and repairs) and results of the home inspection
(including inspector's notes and determination).
Landowner's or landlord's information (in cases where FEMA
is placing a manufactured housing unit on the individual's land or for
other temporary housing assistance):
[cir] Name;
[cir] Address;
[cir] Phone number; and
[cir] Signature.
Correspondence and documentation related to determining
eligibility and appropriate housing unit size, type, and location for
temporary housing assistance, including general correspondence;
complaints; requests for disbursement of payments; inquiries from
tenants and landlords; information related to household access and
functional needs; general administrative and fiscal information;
payment schedules and forms; termination notices; information shared
with the temporary housing program staff from other agencies to prevent
the duplication of benefits; leases; contracts; specifications for
repair of disaster damaged residences; reasons for revocation or denial
of aid; sales information related to occupant purchase of housing
units; and the status or disposition of housing applications;
Recoupment, appeals, and/or arbitration (oral hearings) of
such determinations;
Notice of Potential Debt Letter;
Notations and reports of decisions for disaster or similar
financial awards and assistance from other FEMA Programs, Federal and
State agencies, insurance companies, employers, banks, financial,
power/utility companies, health care providers, safety/rescue services,
and public or private entities as they relate to determinations of
applicants' eligibility for Individuals and Households Program disaster
assistance; and
Unsolicited information concerning an individual's
suspected or actual exposure to illness during a public health
emergency, including, but not limited to quarantine or isolation
orders.
(b) Inspection Reports:
Inspection reports contain applicants' personally
identifiable information (as outlined above) and results of assessments
of damaged real property; personal property; and goods, which may
include: descriptions and photographic images of an applicant's home
and personal items; video and/or audio of the inspection conducted on
the home; and notations of cleaning, sanitizing, and debris removal by
contractors and partnering agencies. Inspection reports may also
include Inspector ID and Contractor ID.
(c) Assistance from Other Sources:
Other files independently maintained by the State,
territory, Tribe, local government, voluntary agency, or other source
of assistance that contain records of persons who request disaster aid,
including for the ``Other Needs'' assistance provision of the
Individuals and Households Program administrative files and reports
required by FEMA. The
[[Page 73107]]
States, territories, Tribes, local governments, voluntary agencies, and
other sources of assistance maintain the same type of information about
individuals as described above under registration, inspection, and
temporary housing assistance records.
Records of assistance from the FEMA National Flood
Insurance Program to avoid duplication of benefits (name, address,
disaster assistance coverage required code, policy number, policy
number, policy effective date, policy coverage building, policy
coverage contents, new policy date, and expiration date).
(d) Customer service survey responses
Demographic information, pursuant to Executive Order 13985
(race, ethnicity, religion, gender, sex, nationality, age, disability,
English proficiency, economic status, income level, marital status);
and
Responses to customer service and customer satisfaction
survey questions.
(e) Investigation results that may contain the name and address of
the applicants to support recoupment, appeals, oral hearings, or other
legal proceedings to recover disaster assistance.
RECORD SOURCE CATEGORIES:
FEMA receives information from individuals who apply for disaster
assistance through three different means: (1) Electronically via
https://www.disasterassistance.gov (/FEMA Form 009-0-1 and FEMA Form
009-0-2); (2) by calling FEMA's toll-free number 1-800-621-3362 (FEMA
Form 009-0-1t and FEMA Form 009-0-2t); and (3) through submission of a
paper copy of pre-registration intake, FEMA Form 009-0-1 and its
Spanish-language equivalent, FEMA Form 009-0-2. In addition,
information in this system of records derives from Temporary Housing
Assistance Eligibility Determinations (FEMA Forms 009-0-5 and 009-0-6),
Application for Continued Temporary Housing Assistance (FEMA Form 010-
0-12), and Housing Inspections (FEMA Forms 009-0-143, 009-0-144, and
009-0-145). Information may also come from FEMA inspectors; financial
institutions; insurance companies; other Federal, State, territorial,
local, Tribal, and voluntary agencies; and commercial databases (for
verification purposes, such as third-party identity proofing that
verifies an individual's identity by validating the applicant's
responses to verification questions). The final investigative summary
report is maintained in this system of records if an applicant's file
is investigated for potential fraud.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND PURPOSES OF SUCH USES:
In addition to those disclosures generally permitted under 5 U.S.C.
552a(b) of the Privacy Act, all or a portion of the records or
information maintained in this system may be disclosed outside DHS as a
routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including the U.S. Attorneys
Offices, or other Federal agencies conducting litigation or proceedings
before any court, adjudicative, or administrative body, when it is
relevant and necessary to the litigation and one of the following is a
party to the litigation or has an interest in such litigation:
1. DHS or any Component thereof;
2. Any employee or former employee of DHS in their official
capacity;
3. Any employee or former employee of DHS in their individual
capacity, only when DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof.
B. To a congressional office from the record of an individual in
response to an inquiry from that congressional office made at the
request of the individual to whom the record pertains.
C. To the National Archives and Records Administration or General
Services Administration pursuant to records management inspections
being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency or organization for the purpose of performing audit
or oversight operations as authorized by law, but only such information
as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when (1) DHS
suspects or has confirmed that there has been a breach of the system of
records; (2) DHS has determined that as a result of the suspected or
confirmed breach there is a risk of harm to individuals, DHS (including
its information systems, programs, and operations), the Federal
Government, or national security; and (3) the disclosure made to such
agencies, entities, and persons is reasonably necessary to assist in
connection with DHS's efforts to respond to the suspected or confirmed
breach or to prevent, minimize, or remedy such harm.
F. To another Federal agency or Federal entity when DHS determines
that information maintained in this system of records is reasonably
necessary to assist the recipient agency or entity in (1) responding to
a suspected or confirmed breach or (2) preventing, minimizing, or
remedying the risk of harm to individuals, the recipient agency or
entity (including its information systems, programs, and operations),
the Federal Government, or national security, resulting from a
suspected or confirmed breach.
G. To an appropriate Federal, State, Tribal, local, international,
or foreign law enforcement agency or other appropriate authority
charged with investigating or prosecuting a violation or enforcing or
implementing a law, rule, regulation, or order, when a record, either
on its face or in conjunction with other information, indicates a
violation or potential violation of law, which includes criminal,
civil, or regulatory violations and such disclosure is proper and
consistent with the official duties of the person making the
disclosure.
H. To contractors and their agents, grantees, experts, consultants,
and others performing or working on a contract, service, grant,
cooperative agreement, or other assignment for DHS/FEMA, when necessary
to accomplish an agency function related to this system of records.
Individuals provided information under this routine use are subject to
the same requirements and limitations on disclosure as are applicable
to DHS/FEMA officers and employees.
I. To Federal, State, Tribal, territorial, and local governments,
and voluntary organizations when disclosure of applicant information is
necessary to prevent a duplication of efforts or a duplication of
benefits in determining eligibility for disaster assistance for
eligible or partially eligible FEMA applicants.
J. To Federal, State, Tribal, territorial, and local governments,
voluntary organizations, educational institutions, and private
nonprofit organizations to address disaster-related unmet needs of FEMA
applicants. The above-mentioned entities must be actively involved in
the recovery efforts of the disaster and have a program or service that
addresses one or more disaster-related unmet need(s) of FEMA
applicants. If the service is for outreach or referrals, only name and
contact information may be shared.
K. To government and private entities for the purpose of issuing
permits or connecting utilities to FEMA-provided temporary housing
units for FEMA applicants eligible for direct temporary housing
assistance. FEMA shall only release the address of where the
transportable temporary housing unit will be placed.
L. To Federal, State, Tribal, territorial, or local governments;
voluntary organizations; private nonprofit
[[Page 73108]]
organizations, insurance companies; employers; any public or private
entities; banks and financial institutions when an applicant's
eligibility, in whole or in part, for FEMA's Individuals and Households
Program depends upon financial benefits already received or available
from that source for similar purposes as necessary to determine
benefits; and to prevent duplication of disaster assistance benefits
(as described in 42 U.S.C. 5155). FEMA initiates the data sharing by
disclosing only applicant information necessary for identification
purposes to obtain relevant information from entities listed above.
M. To Federal, State, Tribal, territorial, and local governments,
medical providers, dental providers, landlords, mechanics, childcare
providers, or any other private entities (such as a home contractor)
when cited by applicants as proof of an expense, to verify the accuracy
of an expense for FEMA's Individuals and Households Program. FEMA may
disclose the applicant's name and limited contact information
(telephone number, current address, and/or damaged dwelling address)
and a record identifier (e.g., account, invoice or estimate numbers) to
the third-party service provider.
N. To Federal, State, Tribal, territorial, or local government
agencies charged with the implementation of hazard mitigation measures
and the enforcement of hazard-specific provisions of building codes,
standards, and ordinances. FEMA will only disclose information for the
following purposes:
1. For hazard mitigation planning purposes, to assist Federal,
State, territorial, Tribal, or local government agencies in identifying
high-risk areas and preparing mitigation plans that target those areas
for hazard mitigation projects implemented under Federal, State,
Tribal, territorial, or local hazard mitigation programs.
2. For enforcement purposes, to enable Federal, State, Tribal,
territorial, or local government agencies to ensure that owners repair
or rebuild structures in conformity with applicable hazard-specific
building codes, standards, and ordinances.
O. To the Department of the Treasury to verify identity and account
information of an applicant and to determine eligibility for final
payment from Federal programs (e.g., Do Not Pay program). An
applicant's Social Security number will be released in connection with
a request that the Department of the Treasury provide a disaster
assistance payment to an applicant under the Individuals and Households
Program.
P. To a State, local, territorial, or Tribal government agency in
connection with billing that State, local, territorial, or Tribal
government for the applicable non-Federal cost share under the
Individuals and Households Program. Information shared shall only
include applicants' names, contact information, and amounts of
assistance received.
Q. To State, Tribal, territorial, or local government emergency
managers, when an applicant is occupying a FEMA temporary housing unit,
for the purposes of preparing, administering, coordinating, and/or
monitoring emergency response, public safety, and evacuation plans.
FEMA shall only release the applicants' phone numbers, address, email
address, and number of household occupants of the housing unit.
R. To the Department of the Treasury, Department of Justice, the
U.S. Attorney's Office, an Oral Hearing Official, or other third party
for further collection action on any delinquent debt when circumstances
warrant.
S. To Federal, State, territorial, Tribal, or local law enforcement
authorities, or agencies, or other entities authorized to investigate
and/or coordinate locating missing children and/or reuniting families.
T. To State, Tribal, territorial, or local government election
agencies/authorities that oversee the voting process within their
respective municipalities, for the purpose of ensuring voting rights of
individuals who have applied for FEMA assistance, limited to their own
respective citizens who are displaced from their voting jurisdiction by
a Presidentially declared major disaster or emergency out of their
voting jurisdiction.
U. To other Federal, State, or local government agencies under
approved computer-matching programs for the purposes articulated in
subsection (a)(8)(A) of the Privacy Act.
V. To the individual applicants, of whom the record contains third
party personally identifiable information, to defend themselves during
appeals and Oral Hearings on the recoupment of disaster assistance
funds.
W. To any law enforcement agency of the Federal Government or a
State, local, territorial, or Tribal government to identify illegal
conduct or address public safety or security issues, including
compliance with sex offender notification laws, in the event of
circumstances requiring an evacuation, sheltering, or mass relocation.
X. To entities providing temporary housing or sheltering to
disaster survivors during a declared public health emergency to provide
indication that a survivor with an infectious disease is inhabiting or
has inhabited a specific location, when necessary for the safety of
individuals located in the facility and to comply with additional
necessary infectious disease protocols.
Y. To State, local, territorial, and Tribal government and private
entities to verify applicant identity and account information as a
fraud prevention measure.
Z. To the news media and the public, with the approval of the Chief
Privacy Officer in consultation with counsel, when there exists a
legitimate public interest in the disclosure of the information, when
disclosure is necessary to preserve confidence in the integrity of DHS,
or when disclosure is necessary to demonstrate the accountability of
DHS's officers, employees, or individuals covered by the system, except
to the extent the Chief Privacy Officer determines that release of the
specific information in the context of a particular case would
constitute a clearly unwarranted invasion of personal privacy.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
DHS/FEMA stores records in this system electronically or on paper
in secure facilities in a locked drawer behind a locked door. The
records may be stored on magnetic disc, tape, and digital/electronic
media.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
DHS/FEMA retrieves records by an individual's name, email address,
dwelling address, Social Security number, and case file number.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records pertaining to disaster assistance will be placed in
inactive storage two years after FEMA receives the application and will
be destroyed when they are six years and three months old, in
accordance with National Archives and Records Administration Authority
N1-311-86-1, DAP 8-1, item 4C10a. Records pertaining to temporary
housing will be destroyed three years after closeout of the operation
in accordance with National Archives and Records Administration
Authority N1-311-86-1, DAP 8-2, item 4C10b. Closeout of a disaster
operation occurs when the disaster contract is terminated. Records
pertaining to the Individuals and Households Program (IHP) program will
retire to the Federal Records Center (FRC) one year after closeout and
be
[[Page 73109]]
destroyed three years after closeout in accordance with National
Archives and Records Administration Authority N1-311-86-1, item 4C6c.
Records pertaining to individual assistance customer satisfaction
assessments are stored in accordance with National Archives and Records
Administration Authority N1-311-00-01. Records pertaining to
investigations are retired to inactive storage when two years old, and
destroyed when six years, three months old in accordance with National
Archives and Records Administration Authority N1-311-86-001, item
4C10a. Customer service assessment forms that have been completed and
returned by disaster assistance applicants are temporary records that
are destroyed upon transmission of the final report, per National
Archives and Records Administration Authority N1-311-00-01, DAP-14-1.
The statistical and analytical reports resulting from these assessments
are temporary records that are retired three years after the final
report cutoff and destroyed 20 years after the report cutoff, per
National Archives and Records Administration Authority N1-311-00-01,
DAP-14-2. The assessment results database records are temporary records
that are destroyed when no longer needed for analysis purposes, per
National Archives and Records Administration Authority N1-311-00-01,
DAP-14-3. Per current National Archives and Records Administration
guidance, records pertaining to COVID-19 will be maintained permanently
until further guidance regarding the retention of COVID-19 records is
provided.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
DHS/FEMA safeguards records in this system according to applicable
rules and policies, including all applicable DHS automated systems
security and access policies. DHS/FEMA imposes strict controls to
minimize the risk of compromising the information that is being stored.
Access to the computer system containing the records in this system is
limited to those individuals who have a need to know the information
for the performance of their official duties and who have appropriate
clearances or permissions.
RECORD ACCESS PROCEDURES:
Individuals applying for Individuals and Households Program
assistance may access their information online via the Disaster
Assistance Center using the user ID, password, system generated PIN,
and authentication that was established during the application process.
Applicants may also call a FEMA National Processing Service Center
(NPSC) representative to access their information by providing their
registration ID, full name, damaged dwelling address, current mailing
address (if different), current phone number, and the last four digits
of their Social Security number.
In addition, individuals seeking access to and notification of any
record maintained in this system of records, or seeking to contest its
content, may submit a request in writing to the FEMA Freedom of
Information Act (FOIA) Officer, whose contact information can be found
at https://www.dhs.gov/foia under ``Submit a FOIA Request.'' If an
individual believes more than one Component maintains Privacy Act
records concerning them, the individual may submit the request to the
Chief Privacy Officer and Chief Freedom of Information Act Officer,
Department of Homeland Security, Washington, DC 20528-0655. Even if
neither the Privacy Act nor the Judicial Redress Act provide a right of
access, certain records may be made available under the Freedom of
Information Act. When an individual is seeking records about themself
from this system of records or any other FEMA system of records, the
individual's request must conform with the Privacy Act regulations set
forth in 6 CFR part 5. The individual must first verify their identity,
meaning that the individual must provide their full name, current
address, and date and place of birth. The individual must sign the
request, and the individual's signature must either be notarized or
submitted under 28 U.S.C. 1746, a law that permits statements to be
made under penalty of perjury as a substitute for notarization. An
individual may obtain more information about this process at http://www.dhs.gov/foia. In addition, the individual should:
Explain why they believe the Department would have the
information being requested;
Identify which Component(s) of the Department they believe
may have the information;
Specify when they believe the records would have been
created; and
Provide any other information that will help DHS determine
which DHS Component agency may have responsive records.
If the request is seeking records pertaining to another living
individual, the request must include an authorization from the
individual whose record is being requested, authorizing release to the
requester.
Without the above information, the Component(s) may not be able to
conduct an effective search, and a request may be denied due to lack of
specificity or lack of compliance with applicable regulations.
CONTESTING RECORD PROCEDURES:
For records covered by the Privacy Act or covered Judicial Redress
Act (JRA) records, individuals may make a request for amendment or
correction of a record of the Department about the individual by
writing directly to the Department Component that maintains the record,
unless the record is not subject to amendment or correction. The
request should identify each record in question, state the amendment or
correction desired, and state why the individual believes that the
record is not accurate, relevant, timely, or complete. The individual
may submit any documentation that would be helpful. If the individual
believes that the same record is in more than one system of records,
the request should state such and be addressed to each Component that
maintains a system of records containing the record. When an individual
is making a request for amendment or correction of Departmental records
about themself from this system of records or any other Department
system of records, the individual's request must conform with the
Privacy Act regulations set forth in 6 CFR part 5.
NOTIFICATION PROCEDURES:
See ``Record Access Procedures'' above.
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
87 FR 7852 (February 10, 2022); 78 FR 25282 (April 30, 2013); 74 FR
48763 (September 24, 2009); 71 FR 38408 (July 6, 2006); 69 FR 65615
(November 15, 2004); 66 FR 51436 (October 9, 2001); 64 FR 40596 (July
27, 1999); 61 FR 49777 (September 23, 1996).
* * * * *
Deborah T. Fleischaker,
Chief Privacy Officer (A), U.S. Department of Homeland Security.
[FR Doc. 2024-20155 Filed 9-6-24; 8:45 am]
BILLING CODE 9110-17-P | usgpo | 2024-10-08T13:26:22.716625 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20155.htm"
} |
FR | FR-2024-09-09/2024-20270 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73110-73113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20270]
[[Page 73110]]
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DEPARTMENT OF HOMELAND SECURITY
[Docket Number DHS 2024-0031]
Agency Information Collection Activities: Post-Contract Award
Information; OMB Control No. 1600-0003
AGENCY: Department of Homeland Security (DHS).
ACTION: 60-Day notice and request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security will submit the following
Information Collection Request (ICR) to the Office of Management and
Budget (OMB) for review and clearance in accordance with the Paperwork
Reduction Act of 1995.
DATES: Comments are encouraged and will be accepted until November 8,
2024. This process is conducted in accordance with 5 CFR 1320.1
ADDRESSES: You may submit comments, identified by docket number Docket
# DHS-2024-0031, at:
[cir] Federal eRulemaking Portal: http://www.regulations.gov.
Please follow the instructions for submitting comments.
Instructions: All submissions received must include the agency name
and docket number Docket # DHS-2024-0031. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
SUPPLEMENTARY INFORMATION: The Department of Homeland Security (DHS)
collects information, when necessary, in administering public contracts
for supplies and services. The information is used to determine
compliance with contract terms placed in the contract as authorized by
the Federal Property and Administrative Services Act (41 U.S.C. 251 et
seq.), the Federal Acquisition Regulation (FAR) (48 CFR chapter 1), and
the Homeland Security Acquisition Regulation (HSAR) (48 CFR chapter
30).
Respondents submit information based on the terms of the contract;
the instructions in the contract deliverables mandatory reporting
requirements; and correspondence from acquisition personnel requesting
post-award contract information. The least active contracts and the
simplest contracts will have little to no data to report. The most
active and complex contracts, however, will contain more reporting
requirements. DHS believes that some of this information is already
readily available as part of a company's business processes and that
the largest businesses use computers to compile the data. However, a
significant amount of time is spent correlating information to specific
contract actions and gathering information for more complex contract
actions.
The prior information collection request for Office of Management
and Budget (OMB) Control No. 1600-0003 was approved through May 31,
2025, by OMB, and it includes the following:
3052.204-70 Security requirements for unclassified information
technology resources. (Required in all solicitations and contracts that
require submission of an IT Security Plan.) This clause applies to all
contractor systems connected to a DHS network and those contracts where
the Contractor must have physical or electronic access to sensitive
information contained in DHS unclassified systems. The contractor is
asked to prepare, provide and maintain an IT Security Plan.
3052.204-71 Contractor employee access. (Required when contractor
employees require recurring access to Government facilities or access
to sensitive info.) Contractors may be subject to background
investigations and will have to provide information as required by the
DHS Security Office. The information requested is in addition to the
information requested through Standard Form (SF) 86.
3052.205-70 Advertisements, Publicizing Awards, and Releases.
(Required for all contracts exceeding Simplified Acquisition
Threshold.) Contractors may have to provide copies of information
related to advertisements and release statements to receive approval
for publication.
3052.209-72 Organizational Conflict of Interest, paragraphs (f) and
(g) (Included in solicitations and contracts where a potential
organizational conflict of interest exists and mitigation may be
possible.) Contractors will have to provide information related to
actual or potential conflicts of interest and a mitigation plan.
3052.209-75 Prohibited Financial Interests for Lead System
Integrators. (Required in solicitations and contracts for the
acquisition of a major system when the acquisition strategy envisions
the use of a lead system integrator or when the contractor will be the
lead system integrator.) Contractors will have to provide information
related to changes in financial interests.
3052.209-76 Prohibition on Federal Protective Service Guard
Services Contracts with Business Concerns Owned, Controlled, or
Operated by an Individual Convicted of a Felony, paragraph (h).
(Section 2 of the Federal Protective Service Guard Contracting Reform
Act of 2008, Pub. L. 110-356, generally prohibits DHS from entering
into a contract for guard services under the Federal Protective Service
(FPS) guard services program with any business concern owned,
controlled, or operated by an individual convicted of a serious
felony.) The notification required by paragraph (h) applies to any
contractual instrument that may result in the issuance of task orders.
Contractors will have to provide information on any felony conviction
of personnel who own, control or operate a business during the
performance a contract.
3052.215-70 Key personnel or facilities. (Required in solicitations
and contracts when the selection for award is substantially based on
the offeror's possession of special capabilities regarding personnel or
facilities.) Contractors will have to provide notice of and
documentation related to changes in key personnel for evaluation,
including, resumes; description of the duties the replacement will
assume; description of any change in duties and confirmation that such
change will not negatively impact contract performance.
3052.216-71 Determination of Award Fee. (Required in solicitations
and contracts that include an award fee.) Contractor may submit a
performance self-evaluation for each evaluation period.
3052.217-91 Performance (USCG). (Required in sealed bid fixed-price
solicitations and contracts for vessel repair, alteration, or
conversion which are to be performed within the United States, its
possessions, or Puerto Rico. Also required in negotiated solicitations
and contracts to be performed outside the United States.) Contractor
must request prior approval to conduct dock and sea trials.
3052.217-92 Inspection and Manner of Doing Work (USCG). (Required
in sealed bid fixed-price solicitations and contracts for vessel
repair, alteration, or conversion which are to be performed within the
United States, its possessions, or Puerto Rico. Also required in
negotiated solicitations and contracts to be performed outside the
United States.) Contractor must maintain complete records of all
inspection work and shall make them available to the Government during
performance of the contract and for 90 days after the completion of all
work required.
3052.217-95 Liability and Insurance (USCG). (Required in sealed bid
fixed-price solicitations and contracts for
[[Page 73111]]
vessel repair, alteration, or conversion which are to be performed
within the United States, its possessions, or Puerto Rico. Also
required in negotiated solicitations and contracts to be performed
outside the United States.) Contractor shall provide evidence of the
insurance and give the Contracting Officer written notice after the
occurrence of a loss or damage for which the Government has assumed the
risk. If any loss or damage will result in a claim against the
Government, the contractor shall provide notice.
3052.219-70 Small Business subcontracting plan reporting.
(Generally included in solicitations and contracts that offer
subcontracting possibilities and are expected to exceed $700,000)
Contractors must use Electronic Subcontracting Reporting System (eSRS)
to submit subcontracting reporting data.
3052.219-71 DHS Mentor-Prot[eacute]g[eacute] Program. (Included in
solicitations where subcontracting plans are anticipated) The amount of
credit given to a contractor mentor firm for prot[eacute]g[eacute]
developmental assistance costs must be calculated on a dollar-for-
dollar basis and reported in the Summary Subcontract Report via the
Electronic Subcontracting Reporting System (eSRS) at www.esrs.gov.
3052.222-70 Strikes or Picketing Affecting Timely Completion of the
Contract Work. (Generally included in solicitations and contracts)
Contractor must take all reasonable and appropriate action to end a
strike or picketing. Delay caused by a strike or by picketing which
constitutes an unfair labor practice is not excusable unless the
Contractor takes all reasonable and appropriate action to end such a
strike or picketing, such as the filing of a charge with the National
Labor Relations Board, the use of other available Government
procedures, and the use of private boards or organizations for the
settlement of disputes. The contractor may be required to submit
information to the contracting officer.
3052.222-71 Strikes or Picketing Affecting Access to a DHS
Facility. (Generally included in solicitations and contracts)
Contractor is responsible if strike or picketing is directed at the
Contractor and impedes access by any person to a DHS facility.
Contractor must take all reasonable and appropriate action to end a
strike or picketing. The contractor may be required to submit
information to the contracting officer.
3052.223-70 Removal or disposal of hazardous substances--applicable
licenses and permits. (Required in solicitations and contracts
involving the removal or disposal of hazardous waste material)
Contractors will have to provide evidence of licenses and permits to
perform hazardous substance removal.
3052.223-90 Accident and Fire Reporting (USCG). (Included in
solicitations and contracts involving the removal of hazardous waste
material) Contractor must report incidents involving fire or accidents
at a worksite. Contractors may provide this information using a state,
private insurance carrier, or Contractor accident report form.
3052.228-91 Loss of or Damage to Leased Aircraft (USCG). (Included
in any contract for the lease of an aircraft) In the event of loss of
or damage to an aircraft, the Government shall be subrogated to all
rights of recovery by the Contractor against third parties for such
loss or damage and the Contractor must promptly assign such rights in
writing to the Government.
3052.228-93 Risk and Indemnities (USCG). (Included in any contract
for the lease of an aircraft) Requires the contractor to provide the
Government with evidence of insurance.
3052.235.70 Dissemination of Information--Educational Institutions.
(Included in contracts with educational institutions for research that
are not sensitive or classified) Contractors must provide advanced
electronic copies of articles to the Government covering the results of
research it plans to publish.
Form 700-26, Other Transaction Agreement (Required for the purposes
of entering into other transaction agreements pursuant to 6 U.S.C. 391,
6 U.S.C. 596(1), and 49 U.S.C. 106(l)(6)) The offeror submit an
Employer Identification Number, as well as the business' name, address
and title. Offerors must also identify the authorized business
representative's personal name and must include a signature.
Form 700-23, Other Transaction Agreement Modification (Required for
the purposes of modifying other transaction agreements entered into
pursuant to 6 U.S.C. 391, 6 U.S.C. 596(1), and 49 U.S.C. 106(l)(6)) The
respondent must submit an Employer Identification Number, as well as
the business' name, address and title. Respondents must also identify
the authorized business representative's personal name and must include
a signature.
DHS is seeking to renew this collection, and revise it to:
(1) Remove HSAR Clause 3052.204-70, Security requirements for
unclassified information technology resources, from this OMB Control
Number. The clause was made obsolete by final rule, Homeland Security
Acquisition Regulation; Safeguarding of Controlled Unclassified
Information, issued on June 21, 2023.
(2) Add the provisions and contract clauses under previously
approved OMB Control Number 1601-0023, Safeguarding of Controlled
Unclassified Information and Notification and Credit Monitoring
Requirements for Personally Identifiable Information Incidents, to this
OMB Control Number, in order to consolidate the collections. The
clauses that will be transferred to this OMB Control Number are as
follows:
3052.204-72 Safeguarding of Controlled Unclassified Information.
(Included in solicitations and contracts where contractor and/or
subcontractor employees will have access to controlled unclassified
information (CUI) or CUI will be collected or maintained on behalf of
the agency. The basic clause with its alternate is included in
solicitations and contracts when Federal information systems, which
include contractor information systems operated on behalf of the
agency, are used to collect, process, store, or transmit CUI.) Under
the basic clause, contractors and subcontractors are required to:
Provide adequate security to protect CUI from unauthorized access
and disclosure;
Report all known or suspected incidents to the Component Security
Operations Center (SOC), or the DHS Enterprise SOC if the Component SOC
is not available, in accordance with 4300A Sensitive Systems Handbook
Attachment F Incident Response (i.e., incidents involving personally
identifiable information (PII) or sensitive PII (SPII) must be reported
within 1 hour of discovery; all other incidents shall be reported
within 8 hours of discovery).
Provide full access and cooperation for all activities determined
by the Government to be required to ensure an effective incident
response, including providing all requested images, log files, and
event information to facilitate rapid resolution of incidents;
Certify and confirm the sanitization of Government and Government-
Activity related files and information, and submit the certification to
the Contracting Officer's Representative (COR) and Contracting Officer
in accordance with the template provided in NIST Special Publication
800-88, Guidelines for Media Sanitization, Appendix G; and
Insert this clause in all subcontracts and require subcontractors
to include this clause in all lower tier subcontracts when
subcontractor employees will
[[Page 73112]]
have access to CUI; CUI will be collected or maintained on behalf of
the agency by a subcontractor; or a subcontractor information system(s)
will be used to process, store, or transmit CUI.
Under the alternate, contractors and subcontractors are prohibited
from collecting, processing, storing, or transmitting CUI within a
Federal information system until an Authority to Operate (ATO) has been
accepted and signed by the Component or Headquarters CIO, or designee.
Additionally, contractors and subcontractors are required to:
Complete and submit security authorization (SA) documentation in
accordance with DHS Policy Directive 4300A Information Technology
System Security Program, Sensitive Systems (Version 13.3, February 13,
2023), or any successor publication; and the Security Authorization
Process Guide, including templates;
Have an independent third party validate the security and privacy
controls in place for the information system;
Renew the ATO every three (3) years unless otherwise specified in
the ATO letter;
Support random, periodic reviews by the Department to ensure that
the security requirements contained in the contract are being
implemented and enforced; and
Comply with Federal reporting and information system continuous
monitoring requirements as defined in the Fiscal Year (FY) 2021 DHS
Information Security Performance Plan, or successor publication.
3052.204-73 Notification and Credit Monitoring Requirements for
Personally Identifiable Information Incidents. (Included in
solicitations and contracts where contractor and/or subcontractor
employees have access to personally identifiable information (PII))
Contractors must have in place procedures and the capability to notify
any individual whose PII and/or sensitive PII (SPII) was under the
control of the contractor or resided in the contractor information
system at the time of the incident not later than 5 business days after
being directed to notify individuals, unless otherwise approved by the
Contracting Officer. Additionally, contractors are required to provide
credit monitoring services to individuals whose PII or SPII was under
the control of the contractor or resided in the information system at
the time of the incident for a period beginning the date of the
incident and extending not less than 18 months from the date the
individual is notified.
The information requested is used by the Government's contracting
officers and other acquisition personnel, including technical and legal
staff, for various reasons such as (1) determining the suitability of
contractor personnel accessing DHS facilities; (2) to ensure no
organizational conflicts of interest exist during the performance of
contracts; (3) to ensure the contractor maintains applicable licenses
and permits for the removal and disposal of hazardous materials; (4) to
implement adequate security measures to safeguard CUI and to facilitate
improved incident reporting to DHS; (5) to provide DHS with an
understanding of the contractor's plan to recruit, train, and develop a
diverse, high-performing workforce from underserved communities; and
(6) to otherwise ensure firms are performing in the Government's best
interest. Failure to collect this information would adversely affect
the quality of products and services DHS receives from contractors.
Many sources of the requested information use automated word
processing systems, databases, spreadsheets, project management and
other commercial software to facilitate preparation of material to be
submitted. With Government-wide implementation of e-Government
initiatives, it is commonplace within many of DHS's Components for
submissions to be electronic.
As the information collection is governed by FAR, HSAR and certain
procurement statutes, usability testing is limited to ensuring the use
of plain language, no duplicate/superfluous collection and electronic
submission. DHS found the following:
Plain language is used in the applicable clauses and the forms. DHS
encourages DHS Components to require only the minimum post-award
contract information essential to proper protection of the Government's
interests and compliance with regulation, e.g., contractor performance
evaluation. The information collected from the public under this
request complements but does not duplicate vendor information available
to the Government-wide acquisition community through Integrated Award
Environment (IAE) systems, including the System for Award Management
(SAM). The SAM is the official U.S. Government system that consolidated
the capabilities of the Central Contractor Registration (CCR), the
Online Representations and Certifications Application (ORCA), the
Excluded Parties List System (EPLS) and the Past Performance
Information Retrieval System (PPIRS). To ensure the information
collected under this collection isn't duplicative, DHS Office of the
Chief Procurement Officer: (1) monitors the acquisition processes and
procedures of the various DHS Components; (2) reviews proposed and
published changes to the FAR; and (3) provides one location for the
final review and approval of all proposed acquisition regulations for
DHS. Respondents may submit requested information electronically,
through email or facsimile to the specified Government point of
contact. Contractors will utilize their own computers to provide the
required information to the Government point of contact.
Information collection may or may not involve small business
contractors, depending on the particular transaction. The burden
applied to small businesses is the minimum consistent with the
objective of ensuring contract compliance and protecting the interest
of the Government.
Less frequent incidence of collecting such information as resumes
indicating the level of contractor expertise, permits and licenses, and
inspection reports will negatively affect the quality of products and
services DHS receives from contractors. Potentially, contractors could
perform on contracts without sufficient experience and expertise and
could perform contracts with outdated licenses and negative inspection
reports, placing the Department's operations in jeopardy. Additionally,
less frequent collection of information related to organizational
conflicts of interest inhibit DHS from determining the existence of
true conflicts of interest during the performance of contracts.
Failure to collect this information would adversely affect the
quality of products and services DHS receives from contractors. For
example, potentially, contractors who are lead system integrators could
acquire direct financial interests in major systems the contractors are
contracted to procure, which would compromise the integrity of
acquisitions for the Department. In addition, contractors who own,
control or operate a business providing protective guard services could
possess felony convictions during the performance of contracts, putting
the Department at risk. Furthermore, contractors could change key
personnel during the performance of contracts and use less experienced
or less qualified personnel to reduce costs, which would adversely
affect DHS's fulfillment of its mission requirements. Additionally,
having an HSAR clause to address the safeguarding of CUI will greatly
reduce the proliferation of Department, Component, or buying office-
level
[[Page 73113]]
requirements that offerors now respond to in a variety of different and
non-standard ways. Failure to collect this information may result in
the compromise of CUI hampering the Department's ability to carry out
its mission.
Executive Order 13985, titled ``Advancing Racial Equity and Support
for Underserved Communities Through the Federal Government'' requires
federal agencies to assess equity throughout their organizations,
including equity through procurements. As part of its assessment and
action planning, DHS identified that equity in procurements could be
enhanced by ensuring that DHS's contractors have in place DEIA Plans
which demonstrates the contractor's commitment to fairness regarding
DEIA. Failure to collect a DEIA Plan would prohibit DHS from
understanding the contractor's plan to recruit, train, and develop a
diverse, high-performing workforce from underserved communities.
Disclosure/non-disclosure of information is handled in accordance with
the Freedom of Information Act, other disclosure statutes, and Federal
and agency acquisition regulations.
The burden estimates provided in response to Item 12 above are
based upon definitive contract award data reported by DHS and its
Components, as well as DHS FPDS data for FY 2022. No program changes
occurred; however, the burden was adjusted to reflect an increase in
the number of respondents within DHS for FY 2022 in the amount of
11,075, as well as an increase in the average hourly wage rate. The
burden hours also decreased by a total of 14 hours with the removal of
HSAR Clause 3052.204-70, ``Security requirements for unclassified
information technology resources'', that was made obsolete by the DHS
rulemaking, ``Homeland Security Acquisition Regulation; Safeguarding of
Controlled Unclassified Information, issued on June 21, 2023''.
Finally, the burden has increased as a result of consolidating OMB
Control Number 1601-0023 under this OMB Control Number, 1600-0003. The
average burden per response for the clauses increased by 7.8 hours,
from 6.2 hours to 14 hours; thereby increasing the total annual burden
hours by 970,549 hours.
The Office of Management and Budget is particularly interested in
comments which:
1. Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
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 through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submissions of responses.
Analysis
Agency: Department of Homeland Security (DHS).
Title: Post-Contract Award Information.
OMB Number: 1600-0003.
Frequency: Annually.
Affected Public: Contractor.
Number of Respondents: 26,726.
Estimated Time per Respondent: 77,196.
Total Burden Hours: 1,061,361.
Robert Dorr,
Executive Director, Business Management Directorate.
[FR Doc. 2024-20270 Filed 9-6-24; 8:45 am]
BILLING CODE 9112-FL-P | usgpo | 2024-10-08T13:26:22.856742 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20270.htm"
} |
FR | FR-2024-09-09/2024-20259 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73113-73119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20259]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-6488-N-01]
Statutorily Mandated Designation of Difficult Development Areas
and Qualified Census Tracts for 2025
AGENCY: Office of the Assistant Secretary for Policy Development and
Research, HUD.
ACTION: Notice.
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SUMMARY: This document designates ``Difficult Development Areas''
(DDAs) and ``Qualified Census Tracts'' (QCTs) for purposes of the Low-
Income Housing Tax Credit (LIHTC) under Internal Revenue Code (IRC)
Section 42. The United States Department of Housing and Urban
Development (HUD) makes new DDA and QCT designations annually.
FOR FURTHER INFORMATION CONTACT: For questions on how areas are
designated and on geographic definitions, contact Michael K. Hollar,
Senior Economist, Public Finance and Regulatory Analysis Division,
Office of Policy Development and Research, Department of Housing and
Urban Development, 451 Seventh Street SW, Room 8216, Washington, DC
20410-6000; telephone number 202-402-5878, or send an email to
[email protected]. For specific legal questions pertaining to
Section 42, Office of the Associate Chief Counsel, Passthroughs and
Special Industries, Internal Revenue Service, 1111 Constitution Avenue
NW, Washington, DC 20224; telephone number 202-317-4137. For questions
about the ``HUBZone'' program, contact Lori Gillen, Director, HUBZone
Program, Office of Government Contracting and Business Development,
U.S. Small Business Administration, 409 Third Street SW, Suite 8800,
Washington, DC 20416; telephone number 202-386-7382, or send an email
to [email protected]. (These are not toll-free telephone numbers).
Additional copies of this notice are available through HUD User at,
toll-free, 800-245-2691 for a small fee to cover duplication and
mailing costs. HUD welcomes and is prepared to receive calls from
individuals who are deaf or hard of hearing, as well as individuals
with speech or communication disabilities. To learn more about how to
make an accessible telephone call, please visit https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.
Copies Available Electronically: This notice and additional
information about DDAs and QCTs, including the lists of DDAs and QCTs,
are available electronically on the internet at https://www.huduser.gov/portal/datasets/qct.html.
SUPPLEMENTARY INFORMATION:
I. This Notice
Under IRC Section 42(d)(5)(B)(iii)(I), for purposes of the LIHTC,
the Secretary of HUD must designate DDAs, which are areas with high
construction, land, and utility costs relative to area median gross
income (AMGI). This notice designates DDAs for each of the 50 states,
the District of Columbia, Puerto Rico, American Samoa, Guam, the
Northern Mariana Islands, and the U.S. Virgin Islands. HUD makes the
designations of DDAs in this notice based on modified Fiscal Year (FY)
2024 Small Area Fair Market Rents (Small Area FMRs, SAFMRs), FY 2024
nonmetropolitan county FMRs, FY 2024 income limits, and 2020 Census
population counts, as explained below.
Similarly, under IRC Section 42(d)(5)(B)(ii)(I), the Secretary of
HUD must designate QCTs, which are areas where either 50 percent or
more of the households have an income less than 60 percent of the AMGI
or have a poverty rate of at least 25 percent. This notice
[[Page 73114]]
designates QCTs based on new income and poverty data released in the
American Community Survey (ACS). Specifically, HUD relies on the most
recent three sets of ACS data to ensure that anomalous estimates, due
to sampling error, do not affect the QCT status of tracts.
II. Data Used To Designate DDAs
HUD uses data from the 2020 Census on total population of
metropolitan areas, metropolitan ZIP Code Tabulation Areas (ZCTAs), and
nonmetropolitan areas in the designation of DDAs. The Office of
Management and Budget (OMB) published updated metropolitan areas in OMB
Bulletin No. 18-04 on September 14, 2018.\1\ FY 2024 FMRs and FY 2024
income limits HUD uses to designate DDAs are based on these
metropolitan statistical area (MSA) definitions, with modifications to
account for substantial differences in rental housing markets (and, in
some cases, median family income levels) within MSAs. HUD calculates
Small Area FMRs for the ZCTAs, or portions of ZCTAs within the
metropolitan areas defined by OMB Bulletin No. 18-04.
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\1\ Available at: www.whitehouse.gov/wp-content/uploads/2018/09/Bulletin-18-04.pdf.
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III. Data HUD Uses To Designate QCTs
HUD uses data from the 2020 Census on total population of census
tracts, metropolitan areas, and the nonmetropolitan parts of states in
the designation of QCTs. The FY 2024 income limits HUD uses to
designate QCTs are based on these MSA definitions with modifications to
account for substantial differences in rental housing markets (and in
some cases median family income levels) within MSAs. In this QCT
designation, HUD uses the OMB metropolitan area definitions published
in OMB Bulletin No. 18-04, without modification for purposes of
evaluating how many census tracts can be designated under the
population cap but uses the HUD-modified definitions and their
associated area median family incomes for determining QCT eligibility.
Because the 2020 Decennial Census did not include questions on
respondent household income, HUD uses ACS data to designate QCTs. The
ACS tabulates data collected over 5 years to provide estimates of
socioeconomic variables for small areas containing fewer than 65,000
persons, such as census tracts. Due to sample-related anomalies in
estimates from year to year, HUD uses three sets of ACS tabulations to
minimize the effect of anomalous estimates on QCT status.
IV. Background
The U.S. Department of the Treasury (Treasury) and the Internal
Revenue Service (IRS) are authorized to interpret and enforce the
provisions of IRC Section 42. In order to assist in understanding HUD's
mandated designation of DDAs and QCTs for use in administering IRC
Section 42, a summary of the section is provided below. The following
summary does not purport to bind Treasury or the IRS in any way, nor
does it purport to bind HUD, since HUD has authority to interpret or
administer the IRC only in instances where it receives explicit
statutory delegation.
V. Summary of the Low-Income Housing Tax Credit
A. Determining Eligibility
The LIHTC is a tax incentive intended to increase the availability
of low-income rental housing. IRC Section 42 provides an income tax
credit to certain owners of newly constructed or substantially
rehabilitated low-income rental housing projects. The dollar amount of
the LIHTC available for allocation by each state (credit ceiling) is
limited by population. Section 42 allows each state a credit ceiling
based on a statutory formula indicated at IRC Section 42(h)(3). States
may carry forward unallocated credits derived from the credit ceiling
for one year; however, to the extent such unallocated credits are not
used by then, the credits go into a national pool to be allocated to
qualified states as additional credit. State and local housing agencies
allocate the state's credit ceiling among low-income housing buildings
whose owners have applied for the credit. Besides IRC Section 42
credits derived from the credit ceiling, states may also provide IRC
Section 42 credits to owners of buildings based on the percentage of
certain building costs financed by tax-exempt bond proceeds. Credits
provided based on the use of tax-exempt bond proceeds do not reduce the
credits available from the credit ceiling. See IRC Section 42(h)(4).
The credits allocated to a building are based on the cost of units
placed in service as low-income units under particular minimum
occupancy and maximum rent criteria. Prior to the enactment of the
Consolidated Appropriations Act, 2018 (the 2018 Act), under IRC Section
42(g), a building was required to meet one of two tests to be eligible
for the LIHTC; either: (1) 20 percent of the units must be rent-
restricted and occupied by tenants with incomes no higher than 50
percent of AMGI, or (2) 40 percent of the units must be rent-restricted
and occupied by tenants with incomes no higher than 60 percent of AMGI.
A unit is ``rent-restricted'' if the gross rent, including an allowance
for tenant-paid utilities, does not exceed 30 percent of the imputed
income limitation (i.e., 50 percent or 60 percent of AMGI) applicable
to that unit. The rent and occupancy thresholds remain in effect for at
least 15 years, and building owners are required to enter into
agreements to maintain the low-income character of the building for at
least an additional 15 years.
The 2018 Act added a third test, the average income test. See IRC
Section 42(g)(1), as amended by Public Law 115-141, Division T, Section
103(a)(1) (March 23, 2018). A building meets the minimum requirements
of the average income test if 40 percent or more (25 percent or more in
the case of a project located in a high-cost housing area as described
in IRC Section 142(d)(6)) of the residential units in such project are
both rent-restricted and occupied by individuals whose income does not
exceed the imputed income limitation designated by the taxpayer with
respect to the respective unit. The taxpayer designates the imputed
income limitation for each unit. The designated imputed income
limitation of any unit is determined in 10-percentage-point increments,
and may be designated as 20, 30, 40, 50, 60, 70, or 80 percent of AMGI.
The average of the imputed income limitations designated must not
exceed 60 percent of AMGI. See IRC Section 42(g)(1)(C).
B. Calculating the LIHTC
The LIHTC reduces income tax liability dollar-for-dollar. It is
taken annually for a term of 10 years and is intended to yield a
present value of either: (1) 70 percent of the ``qualified basis'' for
new construction or substantial rehabilitation expenditures that are
not federally subsidized (as defined in IRC Section 42(i)(2)), or (2)
30 percent of the qualified basis for the cost of acquiring certain
existing buildings or projects that are federally subsidized. The tax
credit rates are determined monthly under procedures specified in IRC
Section 42 and cannot be less than 9 percent for new buildings that are
not federally subsidized, and cannot be less than 4 percent for
buildings that are federally subsidized. Individuals can use the
credits up to a deduction equivalent of $25,000 (the actual maximum
amount of credit that an individual can claim depends on the
individual's marginal tax rate). For buildings placed in service after
December 31, 2007, individuals can use the credits against the
alternative
[[Page 73115]]
minimum tax. Corporations, other than S or personal service
corporations, can use the credits against ordinary income tax, and, for
buildings placed in service after December 31, 2007, against the
alternative minimum tax. These corporations also can deduct losses from
the project.
The qualified basis represents the product of the building's
``applicable fraction'' and its ``eligible basis.'' The applicable
fraction is based on the number of low-income units in the building as
a percentage of the total number of units, or based on the floor space
of low-income units as a percentage of the total floor space of
residential units in the building. The eligible basis is the adjusted
basis attributable to acquisition, rehabilitation, or new construction
costs (depending on the type of LIHTC involved). These costs include
amounts chargeable to a capital account that are incurred prior to the
end of the first taxable year in which the qualified low-income
building is placed in service or, at the election of the taxpayer, the
end of the succeeding taxable year. In the case of buildings located in
designated DDAs or designated QCTs, or for credits awarded from the
state's per capita allocation, to buildings designated by the state
agency, eligible basis may be increased up to 130 percent from what it
would otherwise be. This means that the available credits also may be
increased by up to 30 percent. For example, if a 70 percent credit is
available, it effectively could be increased to as much as 91 percent
(70 percent x 130 percent).
C. Defining Difficult Development Areas (DDAs) and Qualified Census
Tracts (QCTs)
As stated above, IRC Section 42 defines a DDA as an area designated
by the Secretary of HUD that has high construction, land, and utility
costs relative to the AMGI. All designated DDAs in metropolitan areas
(taken together) may not contain more than 20 percent of the aggregate
population of all metropolitan areas, and all designated areas not in
metropolitan areas may not contain more than 20 percent of the
aggregate population of all nonmetropolitan areas. See IRC Section
42(d)(5)(B)(iii).
Similarly, IRC Section 42 defines a QCT as an area designated by
the Secretary of HUD where, for the most recent year for which census
data are available on household income in such tract, either 50 percent
or more of the households in the tract have an income which is less
than 60 percent of the AMGI or the tract's poverty rate is at least 25
percent. All designated QCTs in a single metropolitan area or
nonmetropolitan area (taken together) may not contain more than 20
percent of the population of that metropolitan or nonmetropolitan area.
Thus, unlike the restriction on DDA designations, QCTs are restricted
by the total population of each individual area as opposed to the
aggregate population across all metropolitan areas and nonmetropolitan
areas. See IRC Section 42(d)(5)(B)(ii).
IRC Section 42(d)(5)(B)(v) allows states to award an increase in
basis up to 30 percent to buildings located outside of federally
designated DDAs and QCTs if the increase is necessary to make the
building financially feasible. This state discretion applies only to
buildings allocated credits under the state housing credit ceiling and
is not permitted for buildings receiving credits in connection with
tax-exempt bonds. Rules for such designations shall be set forth in the
LIHTC-allocating agencies' qualified allocation plans (QAPs). See IRC
Section 42(m).
VI. Explanation of HUD Designation Method
A. 2025 Difficult Development Areas
In developing the 2025 list of DDAs, as required by IRC Section
42(d)(5)(B)(iii), HUD compared housing costs with incomes. HUD used
2020 Census population for ZCTAs, and nonmetropolitan areas, and the
MSA definitions, as published in OMB Bulletin 18-04 on September 14,
2018, with modifications, as described below. In keeping with past
practice of basing the coming year's DDA designations on data from the
preceding year, the basis for these comparisons is the FY 2024 HUD
income limits for very low-income households (very low-income limits,
or VLILs), which are based on 50 percent of AMGI, and modified FMRs
based on the FY 2024 FMRs used for the Housing Choice Voucher (HCV)
program. For metropolitan DDAs, HUD used Small Area FMRs based on three
annual releases of ACS data, to compensate for statistical anomalies
which affect estimates for some ZCTAs. For non-metropolitan DDAs, HUD
used the FY 2024 FMRs published on August 31, 2023 and effective on
October 1, 2023 (88 FR 60223), as updated by the February 9, 2024
publication effective March 11, 2024 (89 FR 9169).
In formulating the FY 2024 FMRs and VLILs, HUD modified the current
OMB definitions of MSAs to account for differences in rents among areas
within each current MSA that were in different FMR areas under
definitions used in prior years. HUD formed these ``HUD Metro FMR
Areas'' (HMFAs) in cases where one or more of the parts of newly
defined MSAs were previously in separate FMR areas. All counties added
to metropolitan areas are treated as HMFAs with rents and incomes based
on their own county data, where available. All HMFAs are contained
entirely within MSAs. All nonmetropolitan counties are outside of MSAs
and are not broken up by HUD for purposes of setting FMRs and VLILs.
(Complete details on HUD's process for determining FY 2024 FMR areas
and FMRs are available at https://www.huduser.gov/portal/datasets/fmr.html#2024. Complete details on HUD's process for determining FY
2024 income limits are available at https://www.huduser.gov/portal/datasets/il.html#2024). HUD's FY 2024 FMRs and VLILs do not account for
the change in Census county-equivalent areas in Connecticut from the
eight historical counties to the States's nine planning regions.
HUD's unit of analysis for designating metropolitan DDAs consists
of ZCTAs, whose Small Area FMRs are compared to metropolitan VLILs. For
purposes of computing VLILs in metropolitan areas, HUD considers entire
MSAs in cases where these were not broken up into HMFAs; and HMFAs
within the MSAs that were broken up for such purposes. Hereafter in
this notice, the unit of analysis for designating metropolitan DDAs
will be called the ZCTA, and the unit of analysis for nonmetropolitan
DDAs will be the nonmetropolitan county or county equivalent area. The
procedure used in making the DDA designations follows:
1. Calculate FMR-to-Income Ratios. For each metropolitan ZCTA and
each nonmetropolitan county, HUD calculated a ratio of housing costs to
income. HUD used a modified FY 2024 two-bedroom Small Area FMR for
ZCTAs, a modified FY 2024 two-bedroom FMR for non-metropolitan
counties, and the FY 2024 four-person VLIL for this calculation.
The modified FY 2024 two-bedroom Small Area FMRs for ZCTAs differ
from the FY 2024 Small Area FMRs in four ways. First, HUD did not limit
the Small Area FMR to 150 percent of its metropolitan area FMR. Second,
HUD did not limit annual decreases in Small Area FMRs to ten percent,
which was first applied in the FY 2018 FMR calculations. Third, HUD
adjusted the Small Area FMRs in New York City using the New York City
Housing and Vacancy Survey, which is conducted by the U.S. Census
Bureau, to adjust for the effect of local rent control and
stabilization regulations. No other
[[Page 73116]]
jurisdictions have provided HUD with data that could be used to adjust
Small Area FMRs for rent control or stabilization regulations.\2\
Finally, the Small Area FMRs are not limited to the State non-
metropolitan minimum FMR.
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\2\ HUD encourages other jurisdictions with rent control laws
that affect rents paid by recent movers into existing units to
contact HUD about what data might be provided or collected to adjust
Small Area FMRs in those jurisdictions.
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The FY 2024 two-bedroom FMR for non-metropolitan counties was
modified only by removing the state non-metropolitan minimum FMR.
The numerator of the ratio, representing the development cost of
housing, was the area's FY 2024 FMR, or Small Area FMR in metropolitan
areas. In general, the FMR is based on the 40th-percentile gross rent
paid by recent movers to live in a standard quality two-bedroom rental
unit.
The denominator of the ratio, representing the maximum income of
eligible tenants, was the monthly LIHTC income-based rent limit, which
was calculated as 1/12 of 30 percent of 120 percent of the area's 4-
person VLIL (where the VLIL was rounded to the nearest $50).
2. Sort Areas by Ratio and Exclude Unsuitable Areas. The ratios of
the FMR, or Small Area FMR, to the LIHTC income-based rent limit were
arrayed in descending order, separately, for ZCTAs and for
nonmetropolitan counties. ZCTAs with populations less than 100 were
excluded in order to avoid designating areas unsuitable for residential
development, such as ZCTAs containing airports.
3. Select Areas With Highest Ratios and Exclude QCTs. The DDAs are
those areas with the highest ratios that cumulatively comprise 20
percent of the 2020 population of all metropolitan areas and all
nonmetropolitan areas. For purposes of applying this population cap,
HUD excluded the population in areas designated as 2025 QCTs. Thus, an
area can be designated as a QCT or DDA, but not both.
B. Application of Population Caps to DDA Determinations
In identifying DDAs, HUD applied caps, or limitations, as noted
above. The cumulative population of metropolitan DDAs cannot exceed 20
percent of the cumulative population of all metropolitan areas, and the
cumulative population of nonmetropolitan DDAs cannot exceed 20 percent
of the cumulative population of all nonmetropolitan areas.
In applying these caps, HUD established procedures to deal with how
to treat small overruns of the caps. The remainder of this section
explains those procedures. In general, HUD stops selecting areas when
it is impossible to choose another area without exceeding the
applicable cap. The only exceptions to this policy are when the next
eligible excluded area contains either a large absolute population or a
large percentage of the total population, or the next excluded area's
ranking ratio, as described above, was identical (to four decimal
places) to the last area selected, and its inclusion resulted in only a
minor overrun of the cap. Thus, for both the designated metropolitan
and nonmetropolitan DDAs, there may be minimal overruns of the cap. HUD
believes the designation of additional areas in the above examples of
minimal overruns is consistent with the intent of the IRC. As long as
the apparent excess is small due to measurement errors, some latitude
is justifiable, because it is impossible to determine whether the 20
percent cap has been exceeded. Despite the care and effort involved in
a Decennial Census, the Census Bureau and all users of the data
recognize that the population counts for a given area and for the
entire country are not precise. Therefore, the extent of the
measurement error is unknown. There can be errors in both the numerator
and denominator of the ratio of populations used in applying a 20
percent cap. In circumstances where a strict application of a 20
percent cap results in an anomalous situation, recognition of the
unavoidable imprecision in the census data justifies accepting small
variances above the 20 percent limit.
B. Qualified Census Tracts
In developing the list of QCTs, HUD used 2020 Census 100-percent
count data on total population, total households, and population in
households; the median household income and poverty rate as estimated
in the 2016-2020, 2017-2021 and 2018-2022 ACS tabulations; the FY 2024
Very Low-Income Limits (VLILs) computed at the HMFA level to determine
tract eligibility; and the MSA definitions published in OMB Bulletin
No. 18-04 on September 14, 2018, for determining how many eligible
tracts can be designated under the statutory 20 percent population cap.
HUD uses the HMFA-level AMGIs to determine QCT eligibility because
the statute, specifically IRC Section 42(d)(5)(B)(iv)(II), refers to
the same section of the IRC that defines income for purposes of tenant
eligibility and unit maximum rent, specifically IRC Section 42(g)(4).
By rule, the IRS sets these income limits according to HUD's VLILs,
which, starting in FY 2006 and thereafter, are established at the HMFA
level. HUD uses the entire MSA to determine how many eligible tracts
can be designated under the 20 percent population cap as required by
the statute (IRC Section 42(d)(5)(B)(ii)(III)), which states that MSAs
should be treated as singular areas.
HUD determined the QCTs as follows:
1. Calculate 60 Percent AMGI. To be eligible to be designated a
QCT, a census tract must have 50 percent of its households with incomes
below 60 percent of AMGI or have a poverty rate of 25 percent or more.
Due to potential statistical anomalies in the ACS 5-year estimates, one
of these conditions must be met in at least 2 of the 3 ACS 5-year
tabulations for a tract to be considered eligible for QCT designation.
HUD calculates 60 percent of AMGI by multiplying by a factor of 1.2 the
HMFA or nonmetropolitan county FY 2024 VLIL adjusted for inflation to
match the ACS estimates, which are adjusted to the value of the dollar
in the last year of the 5-year group.
2. Determine Whether Census Tracts Have Less Than 50 Percent of
Households Below 60 Percent AMGI. For each census tract, whether or not
50 percent of households have incomes below the 60 percent income
standard (income criterion) was determined by: (a) calculating the
average household size of the census tract, (b) adjusting the income
standard to match the average household size, and (c) comparing the
average-household-size-adjusted income standard to the median household
income for the tract reported in each of the three years of ACS
tabulations (2016-2020, 2017-2021 and 2018-2022). HUD did not consider
estimates of median household income to be statistically reliable
unless the margin of error was less than half of the estimate (or a
Margin of Error Ratio, MoER, of 50 percent or less). If at least two of
the three estimates were not statistically reliable by this measure,
HUD determined the tract to be ineligible under the income criterion
due to lack of consistently reliable median income statistics across
the three ACS tabulations. Since 50 percent of households in a tract
have incomes above and below the tract median household income, if the
tract median household income is less than the average-household-size-
adjusted income standard for the tract, then more than 50 percent of
households have incomes below the standard.
3. Estimate Poverty Rate. For each census tract, HUD determined the
poverty rate in each of the three releases of ACS tabulations (2016-
2020, 2017-2021 and 2018-2022) by dividing the
[[Page 73117]]
population with incomes below the poverty line by the population for
whom poverty status has been determined. As with the evaluation of
tracts under the income criterion, HUD applies a data quality standard
for evaluating ACS poverty rate data in designating the 2025 QCTs. HUD
did not consider estimates of the poverty rate to be statistically
reliable unless both the population for whom poverty status has been
determined and the number of persons below poverty had MoERs of less
than 50 percent of the respective estimates. If at least two of the
three poverty rate estimates were not statistically reliable, HUD
determined the tract to be ineligible under the poverty rate criterion
due to lack of reliable poverty statistics across the ACS tabulations.
4. Designate QCTs Where 20 Percent or Less of Population Resides in
Eligible Census Tracts. QCTs are those census tracts in which 50
percent or more of the households meet the income criterion in at least
two of the three years evaluated, or 25 percent or more of the
population is in poverty in at least two of the three years evaluated,
such that the population of all census tracts that satisfy either one
or both of these criteria does not exceed 20 percent of the total
population of the respective area.
5. Designate QCTs Where More Than 20 Percent of Population Resides
in Eligible Census Tracts. In areas where more than 20 percent of the
population resides in eligible census tracts, census tracts are
designated as QCTs in accordance with the following procedure:
a. The statistically reliable income and poverty criteria are each
averaged over the three ACS tabulations (2016-2020, 2017-2021 and 2018-
2022). Statistically reliable values that did not exceed the income and
poverty rate thresholds were included in the average.
b. Eligible tracts are placed in one of two groups based on the
averaged values of the income and poverty criteria. The first group
includes tracts that satisfy both the income and poverty criteria for
QCTs for at least two of the three evaluation years; a different pair
of years may be used to meet each criterion. The second group includes
tracts that satisfy either the income criterion in at least two of the
three years, or the poverty criterion in at least two of three years,
but not both. A tract must qualify by at least one of the criteria in
at least two of the three evaluation years to be eligible.
c. HUD ranked tracts in the first group from highest to lowest by
the average of the ratios of the tract average-household-size-adjusted
income limit to the median household income. Then, HUD ranked tracts in
the first group from highest to lowest by the average of the poverty
rates. HUD averaged the two ranks to yield a combined rank. HUD then
sorted the tracts on the combined rank, with the census tract with the
highest combined rank being placed at the top of the sorted list. In
the event of a tie, HUD ranked more populous tracts above less populous
ones.
d. HUD ranked tracts in the second group from highest to lowest by
the average of the ratios of the tract average-household-size-adjusted
income limit to the median household income. Then, HUD ranked tracts in
the second group from highest to lowest by the average of the poverty
rates. HUD then averaged the two ranks to yield a combined rank. HUD
then sorted the tracts on the combined rank, with the census tract with
the highest combined rank being placed at the top of the sorted list.
In the event of a tie, HUD ranked more populous tracts above less
populous ones.
e. HUD stacked the ranked first group on top of the ranked second
group to yield a single, concatenated, ranked list of eligible census
tracts.
f. Working down the single, concatenated, ranked list of eligible
tracts, HUD identified census tracts as designated until the
designation of an additional tract would cause the 20 percent limit to
be exceeded. If HUD does not designate a census tract because doing so
would raise the percentage above 20 percent, HUD then considers
subsequent eligible census tracts to determine whether one or more
eligible census tract(s) with smaller population(s) could be designated
without exceeding the 20 percent limit.
C. Exceptions to OMB Definitions of MSAs and Other Geographic Matters
As stated in OMB Bulletin 18-04, defining metropolitan areas:
``OMB establishes and maintains the delineations of Metropolitan
Statistical Areas, . . . solely for statistical purposes. . . . OMB
does not take into account or attempt to anticipate any non-
statistical uses that may be made of the delineations[.] In cases
where . . . an agency elects to use the Metropolitan . . . Area
definitions in nonstatistical programs, it is the sponsoring
agency's responsibility to ensure that the delineations are
appropriate for such use. An agency using the statistical
delineations in a nonstatistical program may modify the
delineations, but only for the purposes of that program. In such
cases, any modifications should be clearly identified as deviations
from the OMB statistical area delineations in order to avoid
confusion.''
Following OMB guidance, HUD's estimation procedure for the FMRs and
income limits incorporates the September 2018 OMB definitions of
metropolitan Core-Based Statistical Areas (CBSAs) based on the CBSA
standards, but makes adjustments to the definitions, in order to
separate subparts of these areas in cases where counties were added to
an existing or newly defined metropolitan area. In CBSAs where HUD
establishes subareas, it is HUD's view that the geographic extent of
the housing markets is not the same as the geographic extent of the
CBSAs.
In the New England states (Connecticut, Maine, Massachusetts, New
Hampshire, Rhode Island, and Vermont), HUD defines HMFAs according to
county subdivisions or minor civil divisions (MCDs), rather than county
or county-equivalent boundaries. However, since no part of an HMFA is
outside an OMB-defined, county-based MSA, all New England
nonmetropolitan counties are kept intact for purposes of designating
Nonmetropolitan DDAs.
VII. Future Designations
HUD designates DDAs annually as updated HUD income limit and FMR
data are made public. HUD designates QCTs annually as new income and
poverty rate data are released.
A. Effective Date
The 2025 lists of QCTs and DDAs are effective:
(1) for allocations of credit after December 31, 2024; or
(2) for purposes of IRC Section 42(h)(4), if the bonds are issued
and the building is placed in service after December 31, 2024.
If an area is not on a subsequent list of QCTs or DDAs, the 2025
lists are effective for the area if:
(1) the allocation of credit to an applicant is made no later than
the end of the 730-day period after the applicant submits a complete
application to the LIHTC-allocating agency, and the submission is made
before the effective date of the subsequent lists; or
(2) for purposes of IRC Section 42(h)(4), if:
(a) the bonds are issued or the building is placed in service no
later than the end of the 730-day period after the applicant submits a
complete application to the bond-issuing agency, and
(b) the submission is made before the effective date of the
subsequent lists, provided that both the issuance of the bonds and the
placement in service of the building occur after the application is
submitted.
[[Page 73118]]
An application is deemed to be submitted on the date it is filed if
the application is determined to be complete by the credit-allocating
or bond-issuing agency. A ``complete application'' means that no more
than de minimis clarification of the application is required for the
agency to make a decision about the allocation of tax credits or
issuance of bonds requested in the application.
In the case of a ``multiphase project,'' the DDA or QCT status of
the site of the project that applies for all phases of the project is
that which applied when the project received its first allocation of
LIHTC. For purposes of IRC Section 42(h)(4), the DDA or QCT status of
the site of the project that applies for all phases of the project is
that which applied when the first of the following occurred: (a) the
building(s) in the first phase was (were) placed in service, or (b) the
bonds were issued.
For purposes of this notice, a ``multiphase project'' is defined as
a set of buildings to be constructed or rehabilitated under the rules
of the LIHTC and meeting the following criteria:
(1) the multiphase composition of the project (i.e., total number
of buildings and phases in the project, with a description of how many
buildings are to be built in each phase and when each phase is to be
completed, and any other information required by the agency) is made
known by the applicant in the first application of credit for any
building in the project, and that the applicant identifies the
buildings in the project for which credit is (or will be) sought;
(2) the aggregate amount of LIHTC applied for on behalf of, or that
would eventually be allocated to, the buildings on the site exceeds the
one-year limitation on credits per applicant, as defined in the QAP of
the LIHTC-allocating agency, or the annual per-capita credit authority
of the LIHTC allocating agency, and is the reason the applicant must
request multiple allocations over 2 or more years; and
(3) all applications for LIHTC for buildings on the site are made
in immediately consecutive years.
Members of the public are hereby reminded that the Secretary of
Housing and Urban Development, or the Secretary's designee, has legal
authority to designate DDAs and QCTs, by publishing lists of geographic
entities as defined by, in the case of DDAs, the Census Bureau, the
several states and the governments of the insular areas of the United
States and, in the case of QCTs, by the Census Bureau; and to establish
the effective dates of such lists. The Secretary of the Treasury,
through the IRS thereof, has sole legal authority to interpret, and to
determine and enforce compliance with the IRC and associated
regulations, including Federal Register notices published by HUD for
purposes of designating DDAs and QCTs. Representations made by any
other entity as to the content of HUD notices designating DDAs and QCTs
that do not precisely match the language published by HUD should not be
relied upon by taxpayers in determining what actions are necessary to
comply with HUD notices.
B. Interpretive Examples of Effective Date
For the convenience of readers of this notice, interpretive
examples are provided below to illustrate the consequences of the
effective date in areas that gain or lose QCT or DDA status. The
examples covering DDAs are equally applicable to QCT designations.
(Case A) Project A is located in a 2025 DDA that is NOT a
designated DDA in 2026 or 2027. A complete application for tax credits
for Project A is filed with the allocating agency on November 15, 2025.
Credits are allocated to Project A on October 30, 2027. Project A is
eligible for the increase in basis accorded a project in a 2025 DDA
because the application was filed BEFORE January 1, 2026 (the assumed
effective date for the 2026 DDA lists), and because tax credits were
allocated no later than the end of the 730-day period after the filing
of the complete application for an allocation of tax credits.
(Case B) Project B is located in a 2025 DDA that is NOT a
designated DDA in 2026 or 2027. A complete application for tax credits
for Project B is filed with the allocating agency on December 1, 2025.
Credits are allocated to Project B on March 30, 2028. Project B is NOT
eligible for the increase in basis accorded a project in a 2025 DDA
because, although the application for an allocation of tax credits was
filed BEFORE January 1, 2026 (the assumed effective date of the 2026
DDA lists), the tax credits were allocated later than the end of the
730-day period after the filing of the complete application.
(Case C) Project C is located in a 2025 DDA that was not a DDA in
2024. Project C was placed in service on November 15, 2024. A complete
application for tax-exempt bond financing for Project C is filed with
the bond-issuing agency on January 15, 2025. The tax-exempt bonds that
will support the permanent financing of Project C are issued on
September 30, 2025. Project C is NOT eligible for the increase in basis
otherwise accorded a project in a 2025 DDA, because the project was
placed in service BEFORE January 1, 2025.
(Case D) Project D is located in an area that is a DDA in 2025 but
is NOT a DDA in 2026 or 2027. A complete application for tax-exempt
bond financing for Project D is filed with the bond-issuing agency on
October 30, 2025. Tax-exempt bonds are issued for Project D on April
30, 2027, but Project D is not placed in service until January 30,
2028. Project D is eligible for the increase in basis available to
projects located in 2025 DDAs because: (1) one of the two events
necessary for triggering the effective date for buildings described in
Section 42(h)(4)(B) of the IRC (the two events being tax-exempt bonds
issued and buildings placed in service) took place on April 30, 2027,
within the 730-day period after a complete application for tax-exempt
bond financing was filed, (2) the application was filed during a time
when the location of Project D was in a DDA, and (3) both the issuance
of the tax-exempt bonds and placement in service of Project D occurred
after the application was submitted.
(Case E) Project E is a multiphase project located in a 2025 DDA
that is NOT a designated DDA or QCT in 2026. The first phase of Project
E received an allocation of credits in 2025, pursuant to an application
filed March 15, 2025, which describes the multiphase composition of the
project. An application for tax credits for the second phase of Project
E is filed with the allocating agency by the same entity on March 15,
2026. The second phase of Project E is located on a contiguous site.
Credits are allocated to the second phase of Project E on October 30,
2026. The aggregate amount of credits allocated to the two phases of
Project E exceeds the amount of credits that may be allocated to an
applicant in one year under the allocating agency's QAP and is the
reason that applications were made in multiple phases. The second phase
of Project E is, therefore, eligible for the increase in basis accorded
a project in a 2025 DDA, because it meets all of the conditions to be a
part of a multiphase project.
(Case F) Project F is a multiphase project located in a 2025 DDA
that is NOT a designated DDA in 2026 or 2027. The first phase of
Project F received an allocation of credits in 2025, pursuant to an
application filed March 15, 2025, which does not describe the
multiphase composition of the project. An application for tax credits
for the second phase of Project F is filed with the allocating agency
by the same entity on
[[Page 73119]]
March 15, 2027. Credits are allocated to the second phase of Project F
on October 30, 2027. The aggregate amount of credits allocated to the
two phases of Project F exceeds the amount of credits that may be
allocated to an applicant in one year under the allocating agency's
QAP. The second phase of Project F is, therefore, NOT eligible for the
increase in basis accorded a project in a 2025 DDA, since it does not
meet all of the conditions for a multiphase project, as defined in this
notice. The original application for credits for the first phase did
not describe the multiphase composition of the project. Also, the
application for credits for the second phase of Project F was not made
in the year immediately following the first phase application year.
(Case G) Project G is located in an area that is NOT a DDA in 2025
or 2027, but is in a DDA in 2026. A complete application for tax-exempt
bond financing for Project G is filed with the bond-issuing agency on
October 30, 2025. Project G is placed in service on November 15, 2026
and the bonds are issued on February 20, 2027. Property G is eligible
for the increase in basis available to projects located in 2026 DDAs
because one of the two necessary actions (the two events being tax-
exempt bonds issued and buildings placed in service) occur when the
property is in a DDA and both events occur after January 1, 2026, the
assumed effective date of the 2026 DDAs.
VIII. Findings and Certifications
A. Environmental Impact
This notice involves the statutorily required establishment of
fiscal requirements or procedures that are related to rate and cost
determinations and do not constitute a development decision affecting
the physical condition of specific project areas or building sites.
Accordingly, under 24 CFR 50.19(c)(6) of HUD's regulations, this notice
is categorically excluded from environmental review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.).
B. Federalism Impact
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any policy document that has federalism implications if
the document either imposes substantial direct compliance costs on
state and local governments and is not required by statute, or the
document preempts state law, unless the agency meets the consultation
and funding requirements of section 6 of the executive order. This
notice merely designates DDAs and QCTs as required under IRC Section
42, as amended, for the use by political subdivisions of the states in
allocating the LIHTC. This notice also details the technical methods
used in making such designations. As a result, this notice is not
subject to review under the order.
Solomon J. Greene
Principal Deputy Assistant Secretary for Policy Development and
Research.
[FR Doc. 2024-20259 Filed 9-6-24; 8:45 am]
BILLING CODE 4210-67-P | usgpo | 2024-10-08T13:26:22.938845 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20259.htm"
} |
FR | FR-2024-09-09/2024-20186 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73119-73120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20186]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[245A2100DD/AAKC001030/A0A501010.999900]
Advisory Board of Exceptional Children
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice of meeting.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Education (BIE) is announcing that the
Advisory Board for Exceptional Children will hold a three day in-person
and online meeting. The purpose of the meeting is to meet the mandates
of the Individuals with Disabilities Education Act of 2004 (IDEA) for
Indian children with disabilities.
DATES: The BIE Advisory Board meeting will be held Wednesday, September
25, 2024, from 8 a.m. to 4:30 p.m. EDT, and Thursday, September 26,
2024, from 8 a.m. to 4 p.m. EDT, and Friday, September 27, 2024, from 8
a.m. to 4:30 p.m. EDT. This will include a 1.5-hour school tour on
Wednesday, September 25, 2024, from 9 a.m. to 10:30 a.m. EDT, and
dialogue with Cherokee Central School staff on Wednesday, September 25,
2024, from 12 p.m. to 1:30 p.m. EDT.
ADDRESSES: This onsite meeting location will be at Cherokee Central
Schools Central Office, 86 Elk Crossing Lane, Cherokee, NC 28719. To
attend virtually, participants may use this link to register: https://www.zoomgov.com/meeting/register/vJItcOmhpj8vHS5iX6Kn98Xf9yubIQbJPnA.
Attendees register once and can attend one or both meeting events.
After registering, you will receive a confirmation email containing
information about joining the meeting.
Comments: Public comments can be emailed to the DFO at
[email protected]; or faxed to (602) 265-0293, Attention: Jennifer
Davis, DFO; or mailed or hand delivered to the Bureau of Indian
Education, Attention: Jennifer Davis, DFO, 2600 N. Central Ave., 12th
Floor, Suite 250, Phoenix, AZ 85004.
FOR FURTHER INFORMATION CONTACT: Jennifer Davis, Designated Federal
Officer, Bureau of Indian Education, 2600 N. Central Ave., 12th Floor,
Suite 250, Phoenix, AZ 85004, [email protected], or mobile phone
(202) 860-7845.
SUPPLEMENTARY INFORMATION: In accordance with the Federal Advisory
Committee Act (5 U.S.C. 10), the BIE is announcing the Advisory Board
will hold its next meeting in-person and online. The Advisory Board was
established under the Individuals with Disabilities Act of 2004 (20
U.S.C. 1400 et seq.) to advise the Secretary of the Interior, through
the Assistant Secretary-Indian Affairs, on the needs of Indian children
with disabilities. All meetings, including virtual sessions, are open
to the public in their entirety.
Meeting Agenda Items
The following agenda items will be for September 25-27, 2024,
meetings:
Campus tour of Cherokee Central Schools.
BIE Director Office Updates.
The BIE's Division of Performance and Accountability will
provide Special Education updates about the BIE Special Education
Policy & Procedures Handbook.
The Committee will work on and finalize the 2024 Advisory
Board Annual Report, wrap-up important decisions, discuss outstanding
tasks, and discuss next steps.
Special Education Updates from the Associate Deputy
Director (ADD) Regions: Bureau Operated Schools, Navajo Region and,
Tribally Controlled Schools (TCS).
A Panel Discussion: Early Childhood Transition; and A
Panel Discussion: Secondary Transition.
A Panel Discussion with Transition Specialist (Pre-
Kindergarten through grade 12), to include Early Childhood Transition
and Secondary Transition.
The entire afternoon session 12:10-4:00 p.m. MDT, the
advisory board will work on identifying priority topics for the annual
report, wrap-up important decisions, discuss outstanding tasks, and
discuss next steps.
Public Commenting Sessions will be offered to the general
public:
[cir] Wednesday, September 25, 2024, from 11:45 a.m. to 12 p.m. EDT
and 2 p.m. to 2:15 p.m. EDT; Thursday, September 26, 2024, from 11:45
a.m. to 12 p.m. EDT, and 3:45 p.m. to 4 p.m. EDT; and Friday, September
26, 2024, from 11:15 a.m. to 11:30 p.m. EDT.
[cir] Public comments can be provided verbally via webinar or in
writing using
[[Page 73120]]
the chat box. Public comments can also be emailed to the DFO at
[email protected]; or faxed to (602) 265-0293, Attention: Jennifer
Davis, DFO; or mailed or hand delivered to the Bureau of Indian
Education, Attention: Jennifer Davis, DFO, 2600 N. Central Ave., 12th
Floor, Suite 250, Phoenix, Arizona 85004. Public comments can also be
emailed to the DFO at [email protected]; or faxed to (602) 265-
0293 Attention: Jennifer Davis, DFO; or mailed or hand delivered to the
Bureau of Indian Education, Attention: Jennifer Davis, DFO, 2600 N.
Central Ave., 12th Floor, Suite 250, Phoenix, Arizona 85004.
Accessibility Request
Please make requests in advance for sign language interpreter
services, assistive listening devices, language translation services,
or other reasonable accommodations. Please contact the person listed in
the section FOR FURTHER INFORMATION CONTACT at least seven (7) business
days prior to the meeting to give the Department of the Interior
sufficient time to process your request. All reasonable accommodation
requests are managed on a case-by-case basis.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
Authority: 5 U.S.C. ch. 10.
Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2024-20186 Filed 9-6-24; 8:45 am]
BILLING CODE 4337-15-P | usgpo | 2024-10-08T13:26:23.077988 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20186.htm"
} |
FR | FR-2024-09-09/2024-20276 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20276]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
[BLM_OR_FRN_MO4500181093]
Public Meeting for the Steens Mountain Advisory Council, Oregon
AGENCY: Bureau of Land Management, Interior.
ACTION: Notice of public meeting.
-----------------------------------------------------------------------
SUMMARY: In accordance with the Federal Land Policy and Management Act
of 1976 and the Federal Advisory Committee Act of 1972, the U.S.
Department of the Interior, Bureau of Land Management's (BLM) Steens
Mountain Advisory Council (SMAC) will meet as follows.
DATES: The SMAC will meet Thursday, October 10, 2024, from 10 a.m. to
4:30 p.m. Pacific time (PT), and Friday, October 11, 2024, from 8:30
a.m. to 12:30 p.m. PT.
ADDRESSES: The meeting will be held at the BLM Burns District Office at
28910 Highway 20 West, Hines, Oregon. A virtual participation option
will also be available. The final meeting agenda and Zoom link for
virtual participation will be published on the SMAC's web page at least
10 days in advance at https://on.doi.gov/2PnZRcl.
FOR FURTHER INFORMATION CONTACT: Tara Thissell, Public Affairs
Specialist, BLM Burns District Office, 28910 Highway 20 West, Hines,
Oregon 97738; telephone: (541) 573-4519; email: [email protected].
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States. Please make requests in advance for sign language
interpreter services, assistive listening devices, language translation
services, or other reasonable accommodations. We ask that you contact
the person listed above at least 14 business days prior to the meeting
to give the Department of the Interior sufficient time to process your
request. All reasonable accommodation requests are managed on a case-
by-case basis.
SUPPLEMENTARY INFORMATION: The SMAC was established on August 14, 2001,
pursuant to the Steens Mountain Cooperative Management and Protection
Act of 2000 (Pub. L. 106-399) (Act). The SMAC provides recommendations
to the BLM regarding new and unique approaches to the management of
public lands within the bounds of the Steens Mountain Cooperative
Management and Protection Area, recommends cooperative programs and
incentives for landscape management that meet human needs, and advises
the BLM on potential maintenance and improvement of the ecological and
economic integrity of the area.
The Thursday, October 10, session includes information sharing from
the Designated Federal Officer and the Andrews/Steens Field Manager,
and updates on Inflation Reduction Act projects and 2024 recreation
visitor use statistics. The SMAC may also discuss or hear information
on the Bridge Creek Environmental Impact Statement, Natures Advocate,
LLC, Inholder Access Environmental Assessment, fire and grazing for
fuels management, and/or a recap of the 2024 wildfire season.
On Friday, October 11, the SMAC will discuss its inholder/
edgeholder initiative and hear a presentation from the Burns Paiute
Tribe about their culture and aboriginal homelands in the area. Council
members also have the opportunity to share information from their
constituents or present research. Any other matters that may reasonably
come before the SMAC may also be included at any time throughout the
two-day meeting.
This meeting is open to the public. Public comment periods are
scheduled for 1:30 p.m. on Thursday, October 10, and 11:15 a.m. on
Friday, October 11. Depending on the number of people wishing to
comment and the time available, the amount of time for oral comments
may be limited. Written public comments may be sent to the BLM Burns
District Office listed in the FOR FURTHER INFORMATION CONTACT section
of this notice. To allow for full consideration by SMAC members,
written comments must be provided to Tara Thissell (see FOR FURTHER
INFORMATION CONTACT) at least three (3) business days prior to the
meeting. All comments received will be provided to the SMAC. The
meeting may end early if all business items are completed ahead of
schedule or may be extended if discussions warrant more time.
Public Disclosure of Comments: Before including your address, phone
number, email address, or other personal identifying information in
your comments, please 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.
(Authority: 43 CFR 1784.4-1)
Donald Rotell,
Andrews/Steens Field Office Manager.
[FR Doc. 2024-20276 Filed 9-6-24; 8:45 am]
BILLING CODE 4331-24-P | usgpo | 2024-10-08T13:26:23.144088 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20276.htm"
} |
FR | FR-2024-09-09/2024-20285 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73120-73121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20285]
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DEPARTMENT OF THE INTERIOR
National Park Service
[NPS-WASO-NAGPRA-NPS0038652; PPWOCRADN0-PCU00RP14.R50000]
Notice of Intended Repatriation: California State University,
Sacramento, Sacramento, CA
AGENCY: National Park Service, Interior.
ACTION: Notice.
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[[Page 73121]]
SUMMARY: In accordance with the Native American Graves Protection and
Repatriation Act (NAGPRA), the California State University, Sacramento
intends to repatriate certain cultural items that meet the definition
of objects of cultural patrimony and that have a cultural affiliation
with the Indian Tribes or Native Hawaiian organizations in this notice.
DATES: Repatriation of the cultural items in this notice may occur on
or after October 9, 2024.
ADDRESSES: Dr. Mark R. Wheeler, Senior Advisor to President Luke Wood,
California State University, Sacramento, 6000 J Street Sacramento, CA
95819, telephone (916) 460-0490, email [email protected].
SUPPLEMENTARY INFORMATION: This notice is published as part of the
National Park Service's administrative responsibilities under NAGPRA.
The determinations in this notice are the sole responsibility of the
California State University, Sacramento, and additional information on
the determinations in this notice, including the results of
consultation, can be found in the summary or related records. The
National Park Service is not responsible for the determinations in this
notice.
Abstract of Information Available
A total of 989 cultural items have been requested for repatriation.
The 989 objects of cultural patrimony are flaked and ground stones;
faunal and floral remains; modified stones, bones, and shells;
unmodified stones; soil samples; and historic materials. These items
were removed from CA-TEH-322, TEH-327, TEH-329, TEH-335, TEH-337, TEH-
338, TEH-339, TEH-340, TEH-343, TEH-344, TEH-346, TEH-348, TEH-353,
TEH-354, TEH-358, TEH-364, TEH-365, TEH-366, TEH-369, TEH-376, TEH-397,
TEH-398, TEH-399, TEH-411, TEH-413, TEH-420, TEH-426, TEH-428, TEH-445,
TEH-447, TEH-485, TEH-504, TEH-553, TEH-554, TEH-573, and TEH-Meeker/
Hooper/Flume Creek in Tehama County, CA. The items from TEH-Meeker/
Hooper/Flume Creek sites were collected during a student survey
conducted from 1979 to 1982 and have since been housed at the
California State University, Sacramento under accession 81-458. Items
from the other Tehama County sites were collected during a survey lead
by the University in the 1960s and have since been housed at California
State University, Sacramento under accession numbers 81-9 and 81-359.
An unknown number of objects may be missing from these collections and
California State University, Sacramento continues to look for them.
Determinations
The California State University, Sacramento has determined that:
The 989 objects of cultural patrimony described in this
notice have ongoing historical, traditional, or cultural importance
central to the Native American group, including any constituent sub-
group (such as a band, clan, lineage, ceremonial society, or other
subdivision), according to the Native American traditional knowledge of
an Indian Tribe or Native Hawaiian organization.
There is a reasonable connection between the cultural
items described in this notice and the Paskenta Band of Nomlaki Indians
of California.
Requests for Repatriation
Additional, written requests for repatriation of the cultural items
in this notice must be sent to the authorized representative identified
in this notice under ADDRESSES. Requests for repatriation may be
submitted by any lineal descendant, Indian Tribe, or Native Hawaiian
organization not identified in this notice who shows, by a
preponderance of the evidence, that the requestor is a lineal
descendant or a culturally affiliated Indian Tribe or Native Hawaiian
organization.
Repatriation of the cultural items in this notice to a requestor
may occur on or after October 9, 2024. If competing requests for
repatriation are received, the California State University, Sacramento
must determine the most appropriate requestor prior to repatriation.
Requests for joint repatriation of the cultural items are considered a
single request and not competing requests. The California State
University, Sacramento is responsible for sending a copy of this notice
to the Indian Tribes and Native Hawaiian organizations identified in
this notice and to any other consulting parties.
Authority: Native American Graves Protection and Repatriation Act,
25 U.S.C. 3004 and the implementing regulations, 43 CFR 10.9.
Dated: August 29, 2024.
Melanie O'Brien,
Manager, National NAGPRA Program.
[FR Doc. 2024-20285 Filed 9-6-24; 8:45 am]
BILLING CODE 4312-52-P | usgpo | 2024-10-08T13:26:23.175126 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20285.htm"
} |
FR | FR-2024-09-09/2024-20242 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73121-73122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20242]
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DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
[Docket No. BOEM-2024-0046]
Notice of Availability of a Joint Record of Decision for US Wind
Inc.'s Proposed Maryland Offshore Wind Project
AGENCY: Bureau of Ocean Energy Management, Interior; National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
Commerce.
ACTION: Record of decision; notice of availability.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Ocean Energy Management (BOEM) announces the
availability of the joint record of decision (ROD) on the final
environmental impact statement (EIS) for the construction and
operations plan (COP) submitted by US Wind Inc. (US Wind) for its
proposed Maryland Offshore Wind Project (Project). The joint ROD
includes the Department of the Interior's (DOI) decision regarding the
COP and National Marine Fisheries Service's (NMFS) decision, pending
completion of all statutory processes, regarding US Wind's requested
Incidental Take Regulations (ITR) and an associated Letter of
Authorization (LOA) under the Marine Mammal Protection Act (MMPA). NMFS
has adopted the final EIS to support its decision about whether to
promulgate the requested ITR and issue a LOA to US Wind under the MMPA.
The joint ROD concludes the National Environmental Policy Act process
for each agency.
ADDRESSES: The joint ROD and associated information are available on
BOEM's website at https://www.boem.gov/renewable-energy/state-activities/maryland-offshore-wind.
FOR FURTHER INFORMATION CONTACT: For information related to BOEM's
action, please contact Lorena Edenfield, BOEM Office of Renewable
Energy Programs, 45600 Woodland Road, VAM-OREP, Sterling, Virginia
20166, (907) 231-7679, or [email protected]. For information
related to NMFS' action, contact Katherine Renshaw, National Oceanic
and Atmospheric Administration (NOAA) Office of General Counsel, (302)
515-0324, [email protected].
SUPPLEMENTARY INFORMATION: US Wind seeks approval to construct,
operate, and maintain a wind energy facility and the associated export
cables on the Outer Continental Shelf (OCS) offshore Maryland. The
Project would be
[[Page 73122]]
developed within the range of design parameters outlined in the
Maryland Offshore Wind COP, subject to the applicable mitigation
measures.
A notice of availability for the final EIS was published in the
Federal Register on August 2, 2024. On August 22, 2024, BOEM published
an errata on its website that included certain edits to chapter 2,
chapter 3, and appendix G. None of these edits are substantive or
affect the analysis or conclusions in the final EIS.
The Project (full build-out) as proposed in the COP would include
up to 121 wind turbine generators (WTGs), 1 meteorological tower, up to
4 offshore substations, and up to 4 offshore export cables, distributed
across the lease area (OCS-A 0490). The lease area is located 10.1
statute miles (16.2 kilometers) off the coast of Maryland. The onshore
components of the Project would include a cable landfall area in Sussex
County, Delaware. From the landfall, onshore cables would continue
along an inshore cable export route in Indian River Bay to connect to
onshore substations adjacent to the point of interconnection in
Millsboro, Delaware.
After carefully considering public comments on the draft EIS and
the alternatives described and analyzed in the final EIS, DOI selected
Alternative B, ``Proposed Action''. Alternative B reduces the total
number of WTGs from 121 to 114. Development of the wind energy facility
would occur within the range of design parameters outlined in the COP,
subject to applicable mitigation measures. The anticipated mitigation,
monitoring, and reporting requirements, which will be included in
BOEM's COP approval as terms and conditions, are included in the ROD,
which is available at https://www.boem.gov/renewable-energy/state-activities/maryland-offshore-wind.
NMFS has adopted BOEM's final EIS to support its decision about
whether to promulgate the requested ITR and issue the associated LOA to
US Wind. NMFS' final decision will be documented in a separate Decision
Memorandum prepared in accordance with internal NMFS policy and
procedures. The final ITR and a notice of issuance of the LOA, if
issued, will be published in the Federal Register. The LOA would
authorize US Wind to take small numbers of marine mammals incidental to
Project construction and would set forth permissible methods of
incidental taking; means of affecting the least practicable adverse
impact on the species and their habitat; and requirements for
monitoring and reporting. Pursuant to Section 7 of the Endangered
Species Act (ESA), NMFS issued a final Biological Opinion to BOEM on
June 18, 2024, evaluating the effects of the proposed action on ESA-
listed species. The proposed action in the Biological Opinion includes
the associated permits, approvals, and authorizations that may be
issued.
The US Army Corps of Engineers plans to adopt the final EIS to
support its decision whether to issue a Department of the Army permit
under sections 10 and 14 of the Rivers and Harbors Act of 1899, section
404 of the Clean Water Act, and section 103 of the Marine Protection,
Research, and Sanctuaries Act at a later date under an independent ROD.
Authority: National Environmental Policy Act of 1969, as amended,
(42 U.S.C. 4321 et seq.); 40 CFR 1505.2.
Karen Baker,
Chief, Office of Renewable Energy Programs, Bureau of Ocean Energy
Management.
[FR Doc. 2024-20242 Filed 9-6-24; 8:45 am]
BILLING CODE 4340-98-P | usgpo | 2024-10-08T13:26:23.297535 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20242.htm"
} |
FR | FR-2024-09-09/2024-20225 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20225]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
[Docket No. BOEM-2024-0030]
Notice of Availability of a Final Environmental Assessment for
Commercial Wind Lease Issuance, Site Characterization Activities, and
Site Assessment Activities on the Atlantic Outer Continental Shelf in
the Gulf of Maine Offshore the States of Maine and New Hampshire and
the Commonwealth of Massachusetts
AGENCY: Bureau of Ocean Energy Management, Interior
ACTION: Notice of availability.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Ocean Energy Management (BOEM) announces the
availability of the final environmental assessment (EA) and its finding
that possible wind energy-related leasing, site assessment, and site
characterization activities on the U.S. Atlantic Outer Continental
Shelf (OCS) (the Proposed Action) will not significantly impact the
human environment. The draft EA analyzes the potential impacts of the
Proposed Action and a No Action Alternative. The EA will inform BOEM's
decision about whether it will issue commercial wind energy leases in
the Gulf of Maine offshore the States of Maine and New Hampshire and
the Commonwealth of Massachusetts and its subsequent review of site
assessment plans in the lease areas.
ADDRESSES: The final EA and detailed information about proposed
commercial leases can be found on BOEM's website at: https://www.boem.gov/renewable-energy/state-activities/maine/gulf-maine.
FOR FURTHER INFORMATION CONTACT: Brandi Sangunett, BOEM, Environment
Branch for Renewable Energy, 45600 Woodland Road, Mail Stop VAM-OREP,
Sterling, VA 20166, (703) 787-1015 or [email protected].
SUPPLEMENTARY INFORMATION:
Proposed Action: The final EA analyzes the Proposed Action, which
is to issue commercial wind energy leases in the Gulf of Maine wind
energy area (WEA) and grant rights-of-way (ROWs) and rights-of-use and
easement (RUEs). A BOEM-issued lease provides lessees the exclusive
right to submit plans to BOEM for possible approval. The EA considers
the reasonably foreseeable environmental consequences associated with
site characterization activities (geophysical, geotechnical,
archaeological, and biological surveys) and site assessment activities
(including the installation and operation of meteorological buoys).
BOEM prepared an EA for this proposed action to inform its planning and
decision-making (40 CFR 1501.5(b)).
Alternative: In addition to the Proposed Action, BOEM considered a
No Action Alternative. Under the No Action Alternative, BOEM would
neither issue commercial wind energy leases nor grant ROWs and RUEs in
the Gulf of Maine WEA. BOEM's preferred alternative is the Proposed
Action.
Finding of no significant impact: After carefully considering the
alternatives and comments from the public and cooperating and
consulting agencies on the draft EA, BOEM finds that issuing commercial
wind energy leases and granting ROWs and RUEs in the Gulf of Maine WEA
would not significantly impact the environment.
Availability of the final EA: The final EA and associated
information are available on BOEM's website at: https://www.boem.gov/renewable-energy/state-activities/maine/gulf-maine.
Authority: 42 U.S.C. 4231 et seq. (NEPA, as amended) and 40 CFR
1506.6.
Karen Baker,
Chief, Office of Renewable Energy Programs, Bureau of Ocean Energy
Management.
[FR Doc. 2024-20225 Filed 9-6-24; 8:45 am]
BILLING CODE 4340-98-P | usgpo | 2024-10-08T13:26:23.361535 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20225.htm"
} |
FR | FR-2024-09-09/2024-20275 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73123-73124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20275]
[[Page 73123]]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1415]
Certain Pre-Stretched Synthetic Braiding Hair and Packaging
Therefor; Notice of Institution of Investigation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that a complaint was filed with the
U.S. International Trade Commission on August 2, 2024, under section
337 of the Tariff Act of 1930, as amended, on behalf of JBS Hair, Inc.
of Atlanta, Georgia. A supplement to the complaint was filed on August
19, 2024. The complaint, as supplemented, alleges violations of section
337 based upon the importation into the United States, the sale for
importation, and the sale within the United States after importation of
certain pre-stretched synthetic braiding hair and packaging therefor by
reason of the infringement of certain claims of U.S. Patent No.
10,786,026 (``the '026 patent''); U.S. Patent No. 10,945,478 (``the
'478 patent''); and U.S. Patent No. 10,980,301 (``the '301 patent'').
The complaint further alleges that an industry in the United States
exists as required by the applicable Federal Statute. The complainant
requests that the Commission institute an investigation and, after the
investigation, issue a general exclusion order or, in the alternative,
a limited exclusion order, and cease and desist orders.
ADDRESSES: The complaint, as supplemented, except for any confidential
information contained therein, may be viewed on the Commission's
electronic docket (EDIS) at https://edis.usitc.gov. For help accessing
EDIS, please email [email protected]. Hearing impaired individuals
are advised that information on this matter can be obtained by
contacting the Commission's TDD terminal on (202) 205-1810. Persons
with mobility impairments who will need special assistance in gaining
access to the Commission should contact the Office of the Secretary at
(202) 205-2000. General information concerning the Commission may also
be obtained by accessing its internet server at https://www.usitc.gov.
FOR FURTHER INFORMATION CONTACT: Pathenia M. Proctor, The Office of
Unfair Import Investigations, U.S. International Trade Commission,
telephone (202) 205-2560.
SUPPLEMENTARY INFORMATION: Authority: The authority for institution of
this investigation is contained in section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337, and in section 210.10 of the
Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2024).
Scope of Investigation: Having considered the complaint, the U.S.
International Trade Commission, on September 3, 2024, ordered that--
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of
1930, as amended, an investigation be instituted to determine whether
there is a violation of subsection (a)(1)(B) of section 337 in the
importation into the United States, the sale for importation, or the
sale within the United States after importation of certain products
identified in paragraph (2) by reason of infringement of one or more of
claims 1 and 9-11 of the '026 patent; claim 20 of the '478 patent; and
claims 1, 4-9, and 11 of the '301 patent, and whether an industry in
the United States exists as required by subsection (a)(2) of section
337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of
Practice and Procedure, 19 CFR 210.10(b)(1), the plain language
description of the accused products or category of accused products,
which defines the scope of the investigation, is ``pre-stretched
synthetic braiding hair products having a substantially cardioid shaped
perimeter formed by hackling and pre-stretching synthetic hair strands
having different lengths and packaging for such products'';
(3) For the purpose of the investigation so instituted, the
following are hereby named as parties upon which this notice of
investigation shall be served:
(a) The complainant is:
JBS Hair, Inc., 3587 Oakcliff Road, Atlanta, Georgia 30340-3014.
(b) The respondents are the following entities alleged to be in
violation of section 337, and are the parties upon which the complaint
is to be served:
Sun Taiyang Co., Ltd. (d/b/a Outre[supreg]), 85 Oxford Drive,
Moonachie, New Jersey 07074.
Beauty Elements Corporation (d/b/a Bijouz[supreg]), 5517 NW 163rd
Street, Miami Gardens, Florida 33014.
Hair Zone, Inc. (d/b/a Sensationnel[supreg]), 10 State Street,
Moonachie, New Jersey 07074.
Beauty Essence, Inc. (d/b/a SupremeTM Hair US), 60 Oxford
Drive, Moonachie, New Jersey 07074.
SLI Production Corp. (d/b/a It's a Wig!), 7 Capital Drive, Moonachie,
New Jersey 07074.
Royal Imex, Inc. (d/b/a Zury[supreg] Hollywood), 12605 Clark Street,
Santa Fe Springs, California 90670.
GS Imports, Inc. (d/b/a Golden State Imports, Inc.), 7112 Alondra
Blvd., Paramount, California 90723.
Eve Hair, Inc., 3935 Paramount Blvd., Lakewood, California 90712.
Kum Kang Trading USA, Inc. (d/b/a BNGHAIR), 6422 Alondra Blvd.,
Paramount, California 90723.
Midway International, Inc. (d/b/a BOBBI BOSS), 13131 E 166th Street,
Cerritos, California 90703.
Mayde Beauty Inc., 85 Harbor Road, Port Washington, New York 11050.
Hair Plus Trading Co., Inc. (d/b/a Femi Collection), 1327 Northbrook
Parkway, Ste. 410, Suwanee, Georgia 30024.
Optimum Solution Group LLC (d/b/a Oh Yes Hair), 4070 Buford Hwy., Suite
#4, Duluth, Georgia 30096.
Chois International, Inc., 4320 International Blvd., Norcross, Georgia
30093.
Twin Peak International, Inc. (d/b/a Dejavu Hair), 4340 Pleasantdale
Road, Atlanta, Georgia 30340-3001.
Loc N Products, LLC, 142 Mangum Street SW, Atlanta, Georgia 30313.
Crown Pacific Group Inc., 3121 Oakcliff Industrial Street, Doraville,
Georgia 30340.
Vivace, Inc. (d/b/a Dae Do Inc.), 124 Gate Lane, Levittown, New York
11756.
A-Hair Import Inc., 6423 Warren Drive, Norcross, GA 30093.
Chade Fashions, Inc., 6400 W Gross Point Road, Niles, Illinois 60714.
Mink Hair, Ltd. (d/b/a Sensual[supreg] Collection), 71 Riverview Drive,
Wayne, New Jersey 07470.
Mane Concept Inc., 24 Empire Blvd., Moonachie, New Jersey 07074.
Oradell International Corp. (d/b/a MOTOWN TRESS), 3 Beaver Creek
Street, Manalapan, New Jersey 07726.
Beauty Plus Trading Co., Inc. (d/b/a Janet CollectionTM),
210 W Commercial Avenue, Moonachie, New Jersey 07074.
Model Model Hair Fashion, Inc., 83 Harbor Road, Port Washington, New
York 11050.
New Jigu Trading Corp. (d/b/a Harlem 125[supreg]), 10 Harbor Road, Port
Washington, New York 11050.
Shake N Go Fashion, Inc., 85 Harbor Road, Port Washington, New York
11050.
Amekor Industries, Inc. (d/b/a Vivica A. Fox[supreg] Hair Collection),
500 Brook Road, Ste. 100, Conshohocken, Pennsylvania 19428.
I & I Hair Corp., 4215 Mcewen Road, Dallas, Texas 75244.
[[Page 73124]]
Zugoo Import Inc., 6670 Jones Mill Court, Suite C, Norcross, Georgia
30092.
(c) The Office of Unfair Import Investigations, U.S. International
Trade Commission, 500 E Street, SW Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative
Law Judge, U.S. International Trade Commission, shall designate the
presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be
submitted by the named respondents in accordance with section 210.13 of
the Commission's Rules of Practice and Procedure, 19 CFR 210.13.
Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798
(March 19, 2020), such responses will be considered by the Commission
if received not later than 20 days after the date of service by the
complainant of the complaint and the notice of investigation.
Extensions of time for submitting responses to the complaint and the
notice of investigation will not be granted unless good cause therefor
is shown.
Failure of a respondent to file a timely response to each
allegation in the complaint and in this notice may be deemed to
constitute a waiver of the right to appear and contest the allegations
of the complaint and this notice, and to authorize the administrative
law judge and the Commission, without further notice to the respondent,
to find the facts to be as alleged in the complaint and this notice and
to enter an initial determination and a final determination containing
such findings, and may result in the issuance of an exclusion order or
a cease and desist order or both directed against the respondent.
By order of the Commission.
Issued: September 4, 2024.
Sharon Bellamy,
Supervisory Hearings and Information Officer.
[FR Doc. 2024-20275 Filed 9-6-24; 8:45 am]
BILLING CODE 7020-02-P | usgpo | 2024-10-08T13:26:23.484716 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20275.htm"
} |
FR | FR-2024-09-09/2024-20193 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20193]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. DEA-1423]
Bulk Manufacturer of Controlled Substances Application: Curia New
York, Inc.
AGENCY: Drug Enforcement Administration, Justice.
ACTION: Notice of application.
-----------------------------------------------------------------------
SUMMARY: Curia New York, Inc. has applied to be registered as a bulk
manufacturer of basic class(es) of controlled substance(s). Refer to
Supplementary Information listed below for further drug information.
DATES: Registered bulk manufacturers of the affected basic class(es),
and applicants therefore, may submit electronic comments on or
objections to the issuance of the proposed registration on or before
November 8, 2024. Such persons may also file a written request for a
hearing on the application on or before November 8, 2024.
ADDRESSES: The Drug Enforcement Administration requires that all
comments be submitted electronically through the Federal eRulemaking
Portal, which provides the ability to type short comments directly into
the comment field on the web page or attach a file for lengthier
comments. Please go to https://www.regulations.gov and follow the
online instructions at that site for submitting comments. Upon
submission of your comment, you will receive a Comment Tracking Number.
Please be aware that submitted comments are not instantaneously
available for public view on https://www.regulations.gov. If you have
received a Comment Tracking Number, your comment has been successfully
submitted and there is no need to resubmit the same comment.
SUPPLEMENTARY INFORMATION: In accordance with 21 CFR 1301.33(a), this
is notice that on August 6, 2024, Curia New York, Inc., 33 Riverside
Avenue, Rensselaer, New York 12144-2951, applied to be registered as a
bulk manufacturer of the following basic class(es) of controlled
substance(s):
------------------------------------------------------------------------
Controlled substance Drug code Schedule
------------------------------------------------------------------------
Gamma Hydroxybutyric Acid.................. 2010 I
Marihuana.................................. 7360 I
Tetrahydrocannabinols...................... 7370 I
Amphetamine................................ 1100 II
Lisdexamfetamine........................... 1205 II
Methylphenidate............................ 1724 II
Pentobarbital.............................. 2270 II
4-Anilino-N-Phenethyl-4-Piperidine (ANPP).. 8333 II
Codeine.................................... 9050 II
Oxycodone.................................. 9143 II
Hydromorphone.............................. 9150 II
Hydrocodone................................ 9193 II
Meperidine................................. 9230 II
Morphine................................... 9300 II
Fentanyl................................... 9801 II
------------------------------------------------------------------------
The company plans to manufacture the above listed controlled
substances as bulk active pharmaceutical ingredients for use in product
development and for distribution to its customers.
In reference to drug codes 7360 (Marihuana), and 7370
(Tetrahydrocannabinols), the company plans to bulk manufacture these
drugs as synthetic. No other activities for these drug codes are
authorized for this registration.
Marsha L. Ikner,
Acting Deputy Assistant Administrator.
[FR Doc. 2024-20193 Filed 9-6-24; 8:45 am]
BILLING CODE P | usgpo | 2024-10-08T13:26:23.533569 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20193.htm"
} |
FR | FR-2024-09-09/2024-20192 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73124-73125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20192]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. DEA-1424]
Importer of Controlled Substances Application: Curia New York,
Inc.
AGENCY: Drug Enforcement Administration, Justice.
ACTION: Notice of application.
-----------------------------------------------------------------------
[[Page 73125]]
SUMMARY: Curia New York, Inc. has applied to be registered as an
importer of basic class(es) of controlled substance(s). Refer to
Supplementary Information listed below for further drug information.
DATES: Registered bulk manufacturers of the affected basic class(es),
and applicants therefore, may submit electronic comments on or
objections to the issuance of the proposed registration on or before
October 9, 2024. Such persons may also file a written request for a
hearing on the application on or before October 9, 2024.
ADDRESSES: The Drug Enforcement Administration requires that all
comments be submitted electronically through the Federal eRulemaking
Portal, which provides the ability to type short comments directly into
the comment field on the web page or attach a file for lengthier
comments. Please go to https://www.regulations.gov and follow the
online instructions at that site for submitting comments. Upon
submission of your comment, you will receive a Comment Tracking Number.
Please be aware that submitted comments are not instantaneously
available for public view on https://www.regulations.gov. If you have
received a Comment Tracking Number, your comment has been successfully
submitted and there is no need to resubmit the same comment. All
requests for a hearing must be sent to: (1) Drug Enforcement
Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive,
Springfield, Virginia 22152; and (2) Drug Enforcement Administration,
Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive,
Springfield, Virginia 22152. All requests for a hearing should also be
sent to: Drug Enforcement Administration, Attn: Administrator, 8701
Morrissette Drive, Springfield, Virginia 22152.
SUPPLEMENTARY INFORMATION: In accordance with 21 CFR 1301.34(a), this
is notice that on August 6, 2024, Curia New York, Inc., 33 Riverside
Avenue, Rensselaer, New York 12144, applied to be registered as an
importer of the following basic class(es) of controlled substance(s):
------------------------------------------------------------------------
Controlled substance Drug code Schedule
------------------------------------------------------------------------
Gamma Hydroxybutyric Acid.................. 2010 I
ANPP (4-Anilino-N-phenethyl-4-piperidine).. 8333 II
Poppy Straw Concentrate.................... 9670 II
------------------------------------------------------------------------
The company plans to import the listed controlled substances for
bulk manufacturing into other controlled substances to be distributed
to their customers. No other activities for these drug codes are
authorized for this registration.
Approval of permit applications will occur only when the
registrant's business activity is consistent with what is authorized
under 21 U.S.C. 952(a)(2). Authorization will not extend to the import
of Food and Drug Administration-approved or non-approved finished
dosage forms for commercial sale.
Marsha L. Ikner,
Acting Deputy Assistant Administrator.
[FR Doc. 2024-20192 Filed 9-6-24; 8:45 am]
BILLING CODE P | usgpo | 2024-10-08T13:26:23.571058 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20192.htm"
} |
FR | FR-2024-09-09/2024-20162 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73125-73126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20162]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
Labor Surplus Area Classification
AGENCY: Employment and Training Administration, Labor.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The purpose of this notice is to announce the annual Labor
Surplus Area (LSA) list for fiscal year (FY) 2025.
DATES: The annual LSA list is effective October 1, 2024, for all
States, the District of Columbia, and Puerto Rico.
FOR FURTHER INFORMATION CONTACT: Lucas Arbulu or Donald Haughton,
Office of Workforce Investment, Employment and Training Administration,
200 Constitution Avenue NW, Room C-4514, Washington, DC 20210.
Telephone: Lucas Arbulu (202) 693-2611 (this is not a toll-free
number), or Donald Haughton (202) 693-2784 (this is not a toll-free
number), or email [email protected], or [email protected].
SUPPLEMENTARY INFORMATION: The Department of Labor's regulations
implementing Executive Orders 12073 and 10582 are set forth at 20 CFR
part 654, subpart A. These regulations require the Employment and
Training Administration (ETA) to classify jurisdictions as LSAs
pursuant to the criteria specified in the regulations, and to publish
annually a list of LSAs. Pursuant to those regulations, ETA is hereby
publishing the annual LSA list.
In addition, the regulations provide exceptional circumstance
criteria for classifying LSAs when catastrophic events, such as natural
disasters, plant closings, and contract cancellations are expected to
have a long-term impact on labor market area conditions, discounting
temporary or seasonal factors.
Eligible Labor Surplus Areas
A LSA is a civil jurisdiction that has a civilian average annual
unemployment rate during the previous two calendar years of 20 percent
or more above the average annual civilian unemployment rate for all
states during the same 24-month reference period. ETA uses only
official unemployment estimates provided by the Bureau of Labor
Statistics in making these classifications. The average unemployment
rate for all states includes data for the District of Columbia, and the
Commonwealth of Puerto Rico. The LSA classification criteria stipulate
a civil jurisdiction must have a ``floor unemployment rate'' of 6
percent or higher to be classified an LSA. Any civil jurisdiction that
has a ``ceiling unemployment rate'' of 10 percent or higher is
classified an LSA.
Civil jurisdictions are defined as follows:
1. A city of at least 25,000 population on the basis of the most
recently available estimates from the Bureau of the Census; or
2. A town or township in the States of Michigan, New Jersey, New
York, or Pennsylvania of 25,000 or more population and which possess
powers and functions similar to those of cities; or
3. All counties, except for those counties which contain any type
of civil jurisdictions defined in ``1'' or ``2'' above; or
4. A ``balance of county'' consisting of a county less any
component cities and townships identified in ``1'' or ``2'' above; or
5. A county equivalent which is a town in the States of
Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont
or a municipio in the Commonwealth of Puerto Rico.
[[Page 73126]]
Procedures for Classifying Labor Surplus Areas
The Department of Labor (DOL) issues the LSA list on a fiscal year
basis. The list becomes effective each October 1, and remains in effect
through the following September 30. The reference period used in
preparing the current list was January 2022 through December 2023. The
national average unemployment rate (including Puerto Rico) during this
period is rounded to 3.66 percent. Twenty percent higher than the
national unemployment rate during this period is rounded to 4.39
percent. Since this percent is below the floor rate, the qualifying
rate is 6 percent.
To ensure that all areas classified as labor surplus meet the
requirements, when a city is part of a county and meets the
unemployment qualifier as a LSA, that city is identified in the LSA
list, the balance of county, not the entire county, will be identified
as a LSA if the balance of county also meets the LSA unemployment
criteria. The data on the current and previous years' LSAs are
available at www.dol.gov/agencies/eta/lsa.
Petition for Exceptional Circumstance Consideration
The classification procedures also provide criteria for the
designation of LSAs under exceptional circumstances criteria. These
procedures permit the regular classification criteria to be waived when
an area experiences a significant increase in unemployment which is not
temporary or seasonal and which was not reflected in the data for the
2-year reference period. Under the program's exceptional circumstance
procedures, LSA classifications can be made for civil jurisdictions,
Metropolitan Statistical Areas or Combined Statistical Areas, as
defined by the U.S. Office of Management and Budget. In order for an
area to be classified as a LSA under the exceptional circumstance
criteria, the State Workforce Agency must submit a petition requesting
such classification to the Department of Labor's ETA.
The current criteria for an exceptional circumstance classification
are:
1. An area's unemployment rate is at least 6 percent for each of
the three most recent months; and
2. A projected unemployment rate of at least 6 percent for each of
the next 12 months because of an event.
When submitting such a petition, the State Workforce Agency must
provide documentation that the exceptional circumstance event has
occurred. The State Workforce Agency may file petitions on behalf of
civil jurisdictions, Metropolitan Statistical Areas, or Micropolitan
Statistical Areas.
State Workforce Agencies may submit petitions in electronic format
to [email protected], [email protected], or in hard copy
to the U.S. Department of Labor, Employment and Training
Administration, Office of Workforce Investment, 200 Constitution Avenue
NW, Room C-4514, Washington, DC 20210, Attention Lucas Arbulu. Data
collection for the petition is approved under OMB 1205-0207, expiration
date May 31, 2026.
Jos[eacute] Javier Rodr[iacute]guez,
Assistant Secretary for Employment and Training Administration.
[FR Doc. 2024-20162 Filed 9-6-24; 8:45 am]
BILLING CODE 4510-FN-P | usgpo | 2024-10-08T13:26:23.591653 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20162.htm"
} |
FR | FR-2024-09-09/2024-20132 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73126-73129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20132]
=======================================================================
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MILLENNIUM CHALLENGE CORPORATION
[MCC FR 24-04]
Millennium Challenge Corporation Candidate Country Report for
Fiscal Year 2025
AGENCY: Millennium Challenge Corporation.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Millennium Challenge Act of 2003, as amended, requires the
Millennium Challenge Corporation to publish a report that identifies
countries that are ``candidate countries'' for Millennium Challenge
Account assistance during Fiscal Year 2025. The report is set forth in
full below.
(Authority: 22 U.S.C. 7707(a))
Dated: September 3, 2024.
Peter E. Jaffe,
Vice President, General Counsel, and Corporate Secretary.
Millennium Challenge Corporation Candidate Country Report for Fiscal
Year 2025
Summary
This report to Congress is provided in accordance with section
608(a) of the Millennium Challenge Act of 2003, as amended, 22 U.S.C.
7701, 7707(a) (the Act).
The Act authorizes the provision of assistance for global
development through the Millennium Challenge Corporation (MCC) for
countries that enter into a Millennium Challenge Compact with the
United States to support policies and programs that advance the
progress of such countries to achieve lasting economic growth and
poverty reduction. The Act also authorizes the provision of assistance
to countries for the purpose of assisting such country to become
compact eligible. The Act requires MCC to take a number of steps in
selecting countries to which MCC will seek to provide assistance,
including determining the countries that will be eligible countries for
fiscal year (FY) 2025 based on (a) a country's demonstrated commitment
to (i) just and democratic governance, (ii) economic freedom, and (iii)
investments in its people; (b) the opportunity to reduce poverty and
generate economic growth in the country; and (c) the availability of
funds to MCC. These steps include the submission to the congressional
committees specified in the Act and publication in the Federal Register
of reports on the following:
The countries that are ``candidate countries'' for FY 2025
are based on their per capita income levels and their eligibility to
receive assistance under U.S. law and countries that would be candidate
countries but for specified legal prohibitions on assistance (section
608(a) of the Act);
The criteria and methodology that the MCC Board of
Directors (the Board) will use to measure and evaluate the relative
policy performance of the ``candidate countries'' consistent with the
requirements of subsections (a) and (b) of section 607 of the Act in
order to determine ``eligible countries'' from among the ``candidate
countries'' (section 608(b) of the Act); and
The list of countries determined by the Board to be
``eligible countries'' for FY 2025, identification of such countries
with which the Board will seek to enter into compacts, and a
justification for such eligibility determination and selection for
compact negotiation (section 608(d) of the Act).
This report is the first of three required reports listed above.
Candidate Countries for FY 2025
The Act requires the identification of all countries that are
candidate countries for purposes of eligibility for MCC assistance for
FY 2025 and the identification of all countries that would be candidate
countries for purposes of eligibility for MCC assistance but for
specified legal prohibitions on assistance. Qualification as a
candidate country is defined in sections 606(a) and (b) of the Act,
under which:
A country will be a candidate country in the low income category
for FY 2025 if it:
has a per capita income that is not greater than the World
Bank's lower middle income country threshold for
[[Page 73127]]
such fiscal year ($4,515 gross national income per capita for FY 2025);
is among the 75 countries identified by the World Bank as
having the lowest per capita income; and
is not ineligible to receive United States economic
assistance under part I of the Foreign Assistance Act of 1961, as
amended (the Foreign Assistance Act), by reason of the application of
the Foreign Assistance Act or any other provision of law.
A country will be a candidate country in the lower middle income
category for FY 2025 if it:
has a per capita income that is not greater than the World
Bank's lower middle income country threshold for such fiscal year
($4,515 gross national income per capita for FY 2025);
is not among the 75 countries identified by the World Bank
as having the lowest per capita income; and
is not ineligible to receive United States economic
assistance under part I of the Foreign Assistance Act by reason of the
application of the Foreign Assistance Act or any other provision of
law.
Under section 606(c) of the Act as applied for FY 2025, a country
with per capita income changes from FY 2024 to FY 2025 such that the
country would be reclassified from the low income category to the lower
middle income category or vice versa will retain its income status in
its former category for FY 2025 and two subsequent fiscal years (FY
2026 and FY 2027). A country that has transitioned to the upper middle
income category does not qualify as a candidate country.
Under section 616 of the Act, the Board may select countries from
this list of candidate countries for the purpose of assisting such
country to become an eligible country (traditionally referred to as
threshold programs) if such country demonstrates a significant
commitment to meeting the requirements of subsections (a) and (b) of
section 607 of the Act but fails to meet such requirements.
Pursuant to section 606(d) of the Act, the Board identified the
following countries as candidate countries under the Act for FY 2025.
In so doing, the Board referred to the prohibitions on assistance to
countries for FY 2024 under the Department of State, Foreign
Operations, and Related Programs Appropriations Act, 2024 (FY 2024
SFOAA) contained in Division F of the Further Consolidated
Appropriations Act, 2024 (Pub. L. 118-47).
Candidate Countries: Low Income Category
1. Afghanistan *
2. Angola
3. Bangladesh
4. Benin
5. Bhutan
6. Bolivia
7. Burundi
8. Cabo Verde
9. Cambodia *
10. Cameroon
11. Central African Republic
12. Chad
13. Comoros
14. Congo, Dem. Rep.
15. Congo, Rep.
16. Cote d'Ivoire
17. Djibouti *
18. Egypt, Arab Rep.
19. Eswatini
20. Ethiopia
21. Gambia, The
22. Ghana
23. Guinea-Bissau
24. Honduras
25. India
26. Kenya
27. Kiribati
28. Kyrgyz Republic
29. Lao PDR
30. Lebanon
31. Lesotho
32. Liberia
33. Madagascar
34. Malawi
35. Mauritania
36. Morocco
37. Mozambique
38. Nepal
39. Nigeria
40. Pakistan
41. Papua New Guinea *
42. Philippines
43. Rwanda
44. Sao Tome and Principe
45. Senegal
46. Sierra Leone
47. Solomon Islands
48. Somalia
49. Tajikistan
50. Tanzania
51. Timor-Leste
52. Togo
53. Tunisia
54. Uganda
55. Uzbekistan
56. Vanuatu
57. Vietnam
58. Yemen, Rep.
59. Zambia
* This country was ranked Tier 3 in the 2024 Trafficking in Persons
Report issued by the U.S. Department of State. If, consistent with
section 110 of the Trafficking Victims Protection Act of 2000, the
President determines that the United States will not provide non-
humanitarian nontrade-related assistance to the country, then it would
no longer be a candidate country for FY 2025.
Candidate Countries: Lower Middle Income Category
1. Jordan
2. Micronesia, Federated States of
3. Samoa
Countries That Would Be Candidate Countries but for Legal Provisions
That Prohibit Assistance
Countries that would be considered candidate countries for purposes
of eligibility for MCC assistance for FY 2025 but are ineligible to
receive United States economic assistance under part I of the Foreign
Assistance Act by reason of the application of any provision of the
Foreign Assistance Act or any other provision of law are listed below.
This list is based on legal prohibitions against economic assistance
that apply as of July 29, 2024.
Prohibited Countries: Low Income Category
Burkina Faso is ineligible to receive foreign assistance
pursuant to the military coup restriction in section 7008 of the FY
2024 SFOAA.
Burma is ineligible to receive foreign assistance as it is
subject to numerous restrictions including for concerns relative to its
record on human rights and pursuant to the military coup restriction in
section 7008 of the FY 2024 SFOAA.
Eritrea is ineligible to receive foreign assistance as it
is subject to numerous restrictions including for concerns related to
its record on human rights and its status as a Tier 3 country under the
Trafficking Victims Protection Act of 2000 (22 U.S.C. 7101 et seq.).
Guinea is ineligible to receive foreign assistance
pursuant to the military coup restriction in section 7008 of the FY
2024 SFOAA.
Haiti is ineligible to receive foreign assistance unless
the Secretary of State provides a certification pursuant to section
7045(g)(2) of the FY 2024 SFOAA.
Korea, North is ineligible to receive foreign assistance
as it is subject to numerous restrictions including section 7007 of the
FY 2024 SFOAA and its status as a Tier 3 country under the Trafficking
Victims Protection Act of 2000 (22 U.S.C. 7101 et seq.).
Mali is ineligible to receive foreign assistance pursuant
to the military coup restriction in section 7008 of the FY 2024 SFOAA.
Nicaragua is ineligible to receive foreign assistance as
it is subject to numerous restrictions including under section 7047(c)
of the FY 2024 SFOAA related to its recognition posture with respect to
the Russian Federation
[[Page 73128]]
occupied Georgian territories of Abkhazia and Tskhinvali Region/South
Ossetia, and its status as a Tier 3 country under the Trafficking
Victims Protection Act of 2000 (22 U.S.C. 7101 et seq.).
Niger is ineligible to receive foreign assistance pursuant
to the military coup restriction in section 7008 of the FY 2024 SFOAA.
South Sudan is ineligible to receive foreign assistance as
it is subject to numerous restrictions including for concerns relative
to its record on human rights, and its status as a Tier 3 country under
the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7101 et
seq.).
Sudan is ineligible to receive foreign assistance as it is
subject to numerous restrictions including the military coup
restriction in section 7008 of the FY 2024 SFOAA.
Syria is ineligible to receive foreign assistance as it is
subject to numerous restrictions including section 7007 of the FY 2024
SFOAA and its status as a Tier 3 country under the Trafficking Victims
Protection Act of 2000 (22 U.S.C. 7101 et seq.).
Zimbabwe is ineligible to receive foreign assistance,
including pursuant to section 7042(j)(2) of the FY 2024 SFOAA, which
prohibits (with limited exceptions) assistance for the central
government of Zimbabwe unless the Secretary of State certifies and
reports to Congress that the rule of law has been restored, including
respect for ownership and title to property, and freedoms of
expression, association, and assembly.
Prohibited Countries: Lower Middle Income Category
Sri Lanka is ineligible to receive foreign assistance
pursuant to section 7044(c)(2) of the FY 2024 SFOAA, which restricts
(with limited exceptions) assistance for the central government unless
the Secretary makes certain certifications regarding actions taken by
the Government of Sri Lanka and reports to the Committees on
Appropriations.
Countries identified above as candidate countries, as well as
countries that would be considered candidate countries but for the
applicability of legal provisions that prohibit U.S. economic
assistance, may be the subject of future statutory restrictions or
determinations, or changed country circumstances, that affect their
legal eligibility for assistance under part I of the Foreign Assistance
Act by reason of application of the Foreign Assistance Act or any other
provision of law for FY 2025.
Appendix: Candidate Countries and Prohibited Countries in the Event of
Enactment of Millennium Challenge Corporation Candidate Country Reform
Act Legislation or Similar Legislation
As of the date of this report, legislation known as the Millennium
Challenge Corporation Candidate Country Reform Act is under active
consideration by the United States Congress. If passed as currently
drafted, the legislation would reform the income threshold for
countries to be candidate countries for purposes of eligibility for MCC
assistance by changing it to the World Bank threshold for initiating
the International Bank for Reconstruction and Development graduation
process for the fiscal year ($7,895 gross national income per capita
for FY 2025). It would also eliminate the distinction between lower
income category and lower middle income category countries.
Should this legislation (or legislation that similarly reforms the
income threshold for countries to become candidates) become law before
FY 2026, the Board identified that the following countries would be
qualified, based on their income status, as candidate countries for
consideration under the Act for FY 2025:
1. Afghanistan *
2. Albania
3. Algeria
4. Angola
5. Armenia
6. Bangladesh
7. Belize
8. Benin
9. Bhutan
10. Bolivia
11. Botswana
12. Burundi
13. Cabo Verde
14. Cambodia *
15. Cameroon
16. Central African Republic
17. Chad
18. Colombia
19. Comoros
20. Congo, Dem. Rep.
21. Congo, Rep.
22. Cote d'Ivoire
23. Djibouti *
24. Ecuador
25. Egypt, Arab Rep.
26. El Salvador
27. Equatorial Guinea
28. Eswatini
29. Ethiopia
30. Fiji
31. Gambia, The
32. Georgia
33. Ghana
34. Guatemala
35. Guinea-Bissau
36. Honduras
37. India
38. Indonesia
39. Iraq
40. Jamaica
41. Jordan
42. Kenya
43. Kiribati
44. Kosovo
45. Kyrgyz Republic
46. Lao PDR
47. Lebanon
48. Lesotho
49. Liberia
50. Libya
51. Madagascar
52. Malawi
53. Marshall Islands
54. Mauritania
55. Micronesia, Federated States of
56. Moldova
57. Mongolia
58. Morocco
59. Mozambique
60. Namibia
61. Nepal
62. Nigeria
63. North Macedonia
64. Pakistan
65. Papua New Guinea *
66. Paraguay
67. Peru
68. Philippines
69. Rwanda
70. Samoa
71. Sao Tome and Principe
72. Senegal
73. Sierra Leone
74. Solomon Islands
75. Somalia
76. South Africa
77. Suriname
78. Tajikistan
79. Tanzania
80. Thailand
81. Timor-Leste
82. Togo
83. Tonga
84. Tunisia
85. Tuvalu
86. Uganda
87. Ukraine
88. Uzbekistan
89. Vanuatu
90. Vietnam
91. Yemen, Rep.
92. Zambia
---------------------------------------------------------------------------
* This country was ranked Tier 3 in the 2024 Trafficking in
Persons Report issued by the U.S. Department of State. If,
consistent with section 110 of the Trafficking Victims Protection
Act of 2000, the President determines that the United States will
not provide non-humanitarian nontrade-related assistance to the
country then it would no longer be a candidate country for FY 2025.
---------------------------------------------------------------------------
If the Millennium Challenge Corporation Candidate Country Reform
Act legislation or legislation that similarly reforms the income
threshold for countries to become candidates were
[[Page 73129]]
to become law, the following countries would be considered candidate
countries for purposes of eligibility for MCC assistance for FY 2025,
but are ineligible to receive United States economic assistance under
part I of the Foreign Assistance Act by reason of the application of
any provision of the Foreign Assistance Act or any other provision of
law are listed below. This list is based on legal prohibitions against
economic assistance that apply as of July 29, 2024.
Prohibited Countries
Azerbaijan is ineligible to receive foreign assistance
pursuant to section 907 of the FREEDOM Support Act (22 U.S.C. 5801).
Belarus is ineligible to receive foreign assistance as it
is subject to numerous restrictions including for concerns relative to
its record on human rights and its status as a Tier 3 country under the
Trafficking Victims Protection Act of 2000 (22 U.S.C. 7101 et seq.).
Burkina Faso is ineligible to receive foreign assistance
pursuant to the military coup restriction in section 7008 of the FY
2024 SFOAA.
Burma is ineligible to receive foreign assistance as it is
subject to numerous restrictions including for concerns relative to its
record on human rights and pursuant to the military coup restriction in
section 7008 of the FY 2024 SFOAA.
Eritrea is ineligible to receive foreign assistance as it
is subject to numerous restrictions including for concerns relative to
its record on human rights and its status as a Tier 3 country under the
Trafficking Victims Protection Act of 2000 (22 U.S.C. 7101 et seq.).
Guinea is ineligible to receive foreign assistance
pursuant to the military coup restriction in section 7008 of the FY
2024 SFOAA.
Haiti is ineligible to receive foreign assistance unless
the Secretary of State provides a certification pursuant to section
7045(g)(2) of the FY 2024 SFOAA.
Iran is ineligible to receive foreign assistance as it is
subject to numerous restrictions including section 7007 of the FY 2024
SFOAA and its status as a Tier 3 country under the Trafficking Victims
Protection Act of 2000 (22 U.S.C. 7101 et seq.).
Korea, North is ineligible to receive foreign assistance
as it is subject to numerous restrictions including section 7007 of the
FY 2024 SFOAA and its status as a Tier 3 country under the Trafficking
Victims Protection Act of 2000 (22 U.S.C. 7101 et seq.).
Mali is ineligible to receive foreign assistance pursuant
to the military coup restriction in section 7008 of the FY 2024 SFOAA.
Nicaragua is ineligible to receive foreign assistance as
it is subject to numerous restrictions including under section 7047(c)
of the FY 2024 SFOAA related to its recognition posture with respect to
the Russian Federation occupied Georgian territories of Abkhazia and
Tskhinvali Region/South Ossetia and its status as a Tier 3 country
under the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7101 et
seq.).
Niger is ineligible to receive foreign assistance pursuant
to the military coup restriction in section 7008 of the FY 2024 SFOAA.
South Sudan is ineligible to receive foreign assistance as
it is subject to numerous restrictions including for concerns relative
to its record on human rights, and its status as a Tier 3 country under
the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7101 et
seq.).
Sri Lanka is ineligible to receive foreign assistance
pursuant to section 7044(c)(2) of the FY 2024 SFOAA, which restricts
(with limited exceptions) assistance for the central government unless
the Secretary makes certain certifications regarding actions taken by
the Government of Sri Lanka and reports to the Committees on
Appropriations.
Sudan is ineligible to receive foreign assistance as it is
subject to numerous restrictions including the military coup
restriction in section 7008 of the FY 2024 SFOAA.
Syria is ineligible to receive foreign assistance as it is
subject to numerous restrictions including section 7007 of the FY 2024
SFOAA and its status as a Tier 3 country under the Trafficking Victims
Protection Act of 2000 (22 U.S.C. 7101 et seq.).
Zimbabwe is ineligible to receive foreign assistance,
including pursuant to section 7042(j)(2) of the FY 2024 SFOAA, which
prohibits (with limited exceptions) assistance for the central
government of Zimbabwe unless the Secretary of State certifies and
reports to Congress that the rule of law has been restored, including
respect for ownership and title to property, and freedoms of
expression, association, and assembly.
The countries identified above that would be candidate countries
should the legislation pass; as well as countries that would be
considered candidate countries but for the applicability of legal
provisions that prohibit U.S. economic assistance, may be the subject
of future statutory restrictions or determinations that affect their
legal eligibility for assistance under part I of the Foreign Assistance
Act by reason of application of the Foreign Assistance Act or any other
provision of law for FY 2025.
[FR Doc. 2024-20132 Filed 9-6-24; 8:45 am]
BILLING CODE 9211-03-P | usgpo | 2024-10-08T13:26:23.621663 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20132.htm"
} |
FR | FR-2024-09-09/2024-20233 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20233]
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NATIONAL SCIENCE FOUNDATION
Agency Information Collection Activities; National Survey of
College Graduates
ACTION: Correction.
-----------------------------------------------------------------------
SUMMARY: The National Science Foundation (NSF) published a document in
the Federal Register of September 4, 2024, concerning a request for
public comment on the 2025 National Survey of College Graduates with
the wrong survey title.
Corrections
In the Federal Register published September 4, 2024, in FR Doc.
2024-19850 (Filed 9-3-24), on page 71938, first column, under
SUPPLEMENTARY INFORMATION: Title of Collection, please change the title
to 2025 National Survey of College Graduates. All other details remain
unchanged.
Dated: September 4, 2024.
Suzanne H. Plimpton,
Reports Clearance Officer, National Science Foundation.
[FR Doc. 2024-20233 Filed 9-6-24; 8:45 am]
BILLING CODE 7555-01-P | usgpo | 2024-10-08T13:26:23.684916 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20233.htm"
} |
FR | FR-2024-09-09/2024-20264 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73129-73130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20264]
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NATIONAL SCIENCE FOUNDATION
Advisory Committee for Environmental Research and Education;
Notice of Meeting
In accordance with the Federal Advisory Committee Act (Pub. L. 92-
463, as amended), the National Science Foundation (NSF) announces the
following meeting:
Name and Committee Code: Advisory Committee for Environmental
Research and Education (9487).
Date and Time:
November 7, 2024; 10 a.m.-5 p.m. (EDT)
November 8, 2024; 9 a.m.-3:30 p.m. (EDT)
Place: National Science Foundation, 2415 Eisenhower Avenue, Room W-
2210/W-2220, Alexandria, VA 22314 [verbar] Hybrid.
[[Page 73130]]
Hybrid participation is for advisory members and presenters only.
Public participants may attend the meeting virtually. Registration for
the meeting can be accessed at: https://nsf.zoomgov.com/meeting/register/vJItdOCuqDIqGaAsRJQEqUVk2K_bkTn2F-0.
Type of Meeting: Open.
Contact Person: Dr. Ashley Pierce, Staff Associate, Office of
Integrative Activities, Office of the Director, National Science
Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314; (Email:
[email protected]; Telephone: (703) 292-4493).
Summary of Minutes: May be obtained from the AC ERE website:
https://new.nsf.gov/od/oia/advisory-committee-environmental-research.
Purpose of Meeting: To provide advice, recommendations, and
oversight concerning support for environmental research and education.
Agenda: Approval of minutes from past meeting. Updates on agency
support for environmental research and activities. Discussion with NSF
Director. Plan for future advisory committee activities. Updated agenda
will be available on the AC ERE website: https://new.nsf.gov/od/oia/advisory-committee-environmental-research.
November 7, 2024
10:00 a.m.-10:15 a.m. Welcoming Remarks
10:15 a.m.-10:45 a.m. NSF Update
10:45 a.m.-11:00 a.m. Break
11:00 a.m.-12:00 p.m. Build a Resilient Planet Update
12:00 p.m.-1:00 p.m. Lunch
1:00 p.m.-2:30 p.m. Strategic Roadmap Discussion
2:30 p.m.-4:00 p.m. NSF Program Updates
4:00 p.m.-4:15 p.m. Committee Business
4:15 p.m.-5:00 p.m. Briefings from Advisory Committee Liaisons
5:00 p.m. Adjourn Day 1
November 8, 2024
9:00 a.m.-10:30 a.m. Strategic Roadmap Work Group
10:30 a.m.-10:45 a.m. Break
10:45 a.m.-11:15 a.m. NSF Environmental Justice Strategic Plan Update
11:15 a.m.-12:00 p.m. Preparation for Discussion with NSF Senior
Leadership
12:00 p.m.-1:00 p.m. Lunch
1:00 p.m.-2:00 p.m. Preparation for Discussion with NSF Senior
Leadership
2:00 p.m.-2:30 p.m. Discussion with OD
2:30 p.m.-3:30 p.m. Committee Wrap Up and Next Steps
3:30 p.m. Adjourn Day 2
Dated: September 4, 2024.
Crystal Robinson,
Committee Management Officer.
[FR Doc. 2024-20264 Filed 9-6-24; 8:45 am]
BILLING CODE 7555-01-P | usgpo | 2024-10-08T13:26:23.781829 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20264.htm"
} |
FR | FR-2024-09-09/2024-20310 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20310]
=======================================================================
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NUCLEAR REGULATORY COMMISSION
[NRC-2024-0001]
Sunshine Act Meetings
TIME AND DATE: Weeks of September 9, 16, 23, and 30, and October 7, 14,
2024. The schedule for Commission meetings is subject to change on
short notice. The NRC Commission Meeting Schedule can be found on the
internet at: https://www.nrc.gov/public-involve/public-meetings/schedule.html.
PLACE: The NRC provides reasonable accommodation to individuals with
disabilities where appropriate. If you need a reasonable accommodation
to participate in these public meetings or need this meeting notice or
the transcript or other information from the public meetings in another
format (e.g., braille, large print), please notify Anne Silk, NRC
Disability Program Specialist, at 301-287-0745, by videophone at 240-
428-3217, or by email at [email protected]. Determinations on requests
for reasonable accommodation will be made on a case-by-case basis.
STATUS: Public.
Members of the public may request to receive the information in
these notices electronically. If you would like to be added to the
distribution, please contact the Nuclear Regulatory Commission, Office
of the Secretary, Washington, DC 20555, at 301-415-1969, or by email at
[email protected] or [email protected].
MATTERS TO BE CONSIDERED:
Week of September 9, 2024
Thursday, September 12, 2024
10:00 a.m. Briefing on NRC International Activities (Closed Ex. 1
and 9)
Week of September 16, 2024--Tentative
There are no meetings scheduled for the week of September 16, 2024.
Week of September 23, 2024--Tentative
There are no meetings scheduled for the week of September 23, 2024.
Week of September 30, 2024--Tentative
There are no meetings scheduled for the week of September 30, 2024.
Week of October 7, 2024--Tentative
Tuesday, October 8, 2024
10:00 a.m. Meeting with the Organization of Agreement States and
the Conference of Radiation Control Program Directors (Public Meeting)
(Contact: Jeffrey Lynch: 301-415-5041)
Additional Information: The meeting will be held in the
Commissioners' Hearing Room, 11555 Rockville Pike, Rockville, Maryland.
The public is invited to attend the Commission's meeting in person or
watch live via webcast at the Web address--https://video.nrc.gov/.
Week of October 14, 2024--Tentative
There are no meetings scheduled for the week of October 14, 2024.
CONTACT PERSON FOR MORE INFORMATION: For more information or to verify
the status of meetings, contact Sarah Turner at 301-287-9058 or via
email at [email protected].
The NRC is holding the meetings under the authority of the
Government in the Sunshine Act, 5 U.S.C. 552b.
Dated: September 4, 2024.
For the Nuclear Regulatory Commission.
Sarah A. Turner,
Information Management Specialist, Office of the Secretary.
[FR Doc. 2024-20310 Filed 9-5-24; 11:15 am]
BILLING CODE 7590-01-P | usgpo | 2024-10-08T13:26:23.804523 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20310.htm"
} |
FR | FR-2024-09-09/2024-20175 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73130-73132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20175]
=======================================================================
-----------------------------------------------------------------------
OFFICE OF PERSONNEL MANAGEMENT
Submission for Review: 3206-0246, CyberCorps[supreg]: Scholarship
for Service (SFS) Registration System
AGENCY: Office of Personnel Management.
ACTION: 30-Day notice and request for comments.
-----------------------------------------------------------------------
SUMMARY: Office of Personnel Management (OPM) Human Resources Solutions
offers the general public and other Federal agencies the opportunity to
comment on the extension with change of a currently approved
information collection request (ICR): 3206-0246, CyberCorps[supreg]:
Scholarship for Service (SFS) Registration system.
DATES: Comments are encouraged and should be received within 30
calendar days from the date of this publication. This process is
conducted in accordance with 5 CFR 1320.
ADDRESSES: Written comments and recommendations for proposed
information collection requests should be sent within 30 days of
publication of
[[Page 73131]]
this notice to www.reginfo.gov/public/do/PRAMain. Find this particular
information collection request by selecting ``Office of Personnel
Management'' under ``Currently Under Review,'' then check ``Only Show
ICR for Public Comment'' checkbox.
FOR FURTHER INFORMATION CONTACT: A copy of this ICR, with applicable
supporting documentation, may be obtained by contacting: U.S. Office of
Personnel Management, Student Programs Branch, Attention: Laura
Knowles, 601 East 12th Street, Kansas City, MO 64106-2826, via phone at
202-606-1200, or via electronic email at: [email protected]
SUPPLEMENTARY INFORMATION: The CyberCorps[supreg] Scholarship for
Service (SFS) Program was established by the National Science
Foundation, in collaboration with the U.S. Office of Personnel
Management and the Department of Homeland Security, in accordance with
the Cybersecurity Enhancement Act of 2014 (Pub. L. 113-274) as amended
by the National Defense Authorization Act and CHIPS and Science Act and
codified at 15 U.S.C. 7442. This initiative reflects the critical need
for Information Technology (IT) professionals, industrial control
system security professionals, and security managers in government. The
goals of the CyberCorps[supreg] Scholarship for Service (SFS) Program
are to: (1) increase the number of qualified and diverse cybersecurity
candidates for government cybersecurity positions; (2) improve the
national capacity for the education of cybersecurity professionals and
research and development workforce; (3) hire, monitor, and retain high-
quality CyberCorps[supreg] graduates in the cybersecurity mission of
Federal Government; and (4) strengthen partnerships between
institutions of higher education and Federal, State, local, and Tribal
governments. OPM partners with NSF in this program by aiding in
matching SFS students to potential agencies, coordinating students'
transition into government employment, monitoring students' compliance
with program requirements, and assessing whether the program helps meet
the personnel needs of the Federal Government for information
infrastructure protection.
The SFS Program provides funds to institutions of higher education
for student scholarships in support of education in areas relevant to
cybersecurity and cybersecurity-related aspects of other related fields
as appropriate, including artificial intelligence, quantum computing,
and aerospace. Students identified by their institutions for SFS
Scholarships must meet selection criteria based on prior academic
performance, likelihood of success in obtaining the degree, and
suitability for government employment. Each scholarship recipient, as a
condition of receiving a scholarship under the program, enters into an
agreement under which the recipient agrees to work during the summer
between academic terms and to work for a period equal to the length of
the scholarship, following receipt of the student's degree, in a
position related to cybersecurity and in the cyber security mission
of--
(1) an executive agency (as defined in 5 U.S.C. 105);
(2) Congress, including any agency, entity, office, or commission
established in the legislative branch;
(3) an interstate agency;
(4) a State, local, or Tribal government;
(5) a State, local, or Tribal government-affiliated non-profit that
is critical infrastructure (as defined in section 1016(e) of the USA
Patriot Act (42 U.S.C. 5195c(e)); or
(6) as an educator in the field of cybersecurity at a qualified
institution of higher education that provides SFS scholarships.
Additionally, scholarship recipients agree to provide OPM (in
coordination with the NSF) and the qualified institution of higher
education with annual verifiable documentation of post-award employment
and up-to-date contact information.
As required by 15 U.S.C. 7442, a SFS scholarship recipient is
financially liable to the United States if the individual: fails to
maintain an acceptable level of academic standing; is dismissed from
the applicable institution of higher education for disciplinary
reasons; withdraws from the eligible degree program before completing
the program; declares that they do not intend to fulfill the post-award
employment obligation; or fails to maintain or fulfill any of the post-
graduation or post-award employment obligations or requirements.
Failure to satisfy the academic requirements of the program or to
complete the service requirement results in forfeiture of the
scholarship award, which must either be repaid or reverted by the
institution to a student loan pro-rated accordingly to reflect partial
service completed.
Approval of the CyberCorps[supreg]: Scholarship for Service (SFS)
Registration system is necessary to continue management and operation
of the program and to facilitate the timely registration, selection,
placement, and monitoring of program-enrolled scholarship recipients in
Government agencies.
The burden estimate associated with this request is increasing from
past years. This is due to three primary reasons: an increased number
of scholars, increased reporting requirements, and reassessment of
previous reporting of burden estimates. Each year NSF awards grants to
additional universities to use for scholarships under the SFS program
which increases the number of students that receive scholarships, and
consequently, the number of scholars that need to be monitored through
the completion of their service commitment. Each student awarded a
scholarship must register their profile and resume with the SFS website
for the successful facilitation of their placement with a government
agency, and they must maintain up-to-date profile and employment
information through program completion. The annual employment
verification and profile maintenance was not previously collected, and
to meet this requirement, scholars and their affiliated academic
officials must report employment and up-to-date profile information.
Finally, the previous information collection requests only included new
scholars registering with the SFS portal. Costs attributable to the
requirement for scholars to provide annual employment verification and
to maintain an up-to-date profile have been captured in this burden
estimate in addition to the information collected from academic and
agency officials.
The Office of Personnel Management (OPM), Human Resources Solutions
Division, offers the general public and other Federal agencies the
opportunity to comment on an existing information collection request
(ICR) 3206-0246, SFS Registration System. The information collection
was previously published in the Federal Register at 86 FR 17219
allowing for a 60-day public comment period. No comments were received
for this information collection. The purpose of this notice is to allow
an additional 30 days for public comments.
The Office of Management and Budget (OMB) is particularly
interested in comments that:
1. Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
[[Page 73132]]
3. Enhance the quality, utility, and clarity of the information to
be collected; and
4. Identify ways in which OPM can 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, e.g., permitting electronic submissions of responses.
Analysis
Agency: CyberCorps[supreg]: Scholarship for Service, Office of
Personnel Management.
Title: Scholarship for Service (SFS) Program Internet Site.
OMB Number: 3206-0246.
Frequency: Annually.
Affected Public: Individuals or Households.
Number of Respondents: 1,303.
Estimated Time per Respondent:
New Scholars: 30 minutes.
Existing Scholars: 15 minutes.
Principal Investigators/Academic Officials: 35 minutes.
Agency Officials: 10 minutes.
Total Burden Hours: 965 hours.
Office of Personnel Management.
Alexys Stanley,
Federal Register Liaison.
[FR Doc. 2024-20175 Filed 9-6-24; 8:45 am]
BILLING CODE 6325-43-P | usgpo | 2024-10-08T13:26:23.857083 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20175.htm"
} |
FR | FR-2024-09-09/2024-20189 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73132-73133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20189]
=======================================================================
-----------------------------------------------------------------------
POSTAL SERVICE
Privacy Act of 1974; System of Records
AGENCY: Postal Service[supreg].
ACTION: Notice of a new system of records.
-----------------------------------------------------------------------
SUMMARY: The United States Postal Service[supreg] (USPS[supreg]) is
proposing to create one Customer Privacy Act System of Records (SOR)
1225.000. This new SOR will formalize the Postal Service program known
as USPS Operation Santa[supreg] and promote transparency.
DATES: These revisions will become effective without further notice on
October 9, 2024, unless comments received on or before that date result
in a contrary determination.
ADDRESSES: Comments may be submitted via email to the Privacy and
Records Management Office, United States Postal Service Headquarters
[email protected]. Arrangements to view copies of any
written comments received, to facilitate public inspection, will be
made upon request.
FOR FURTHER INFORMATION CONTACT: Janine Castorina, Chief Privacy and
Records Management Officer, Privacy and Records Management Office, 202-
268-2000, [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The United States Postal Service has a long, storied history
concerning letters to Santa. From cultural touchstones like Miracle on
34th Street to ``Letters to Santa'' holiday decorations, the notion of
a child writing a letter to Santa Claus, Saint Nicolas, Papa Noel, and
countless other derivations goes back generations. The Postal Service
has long supported these types of programs, formalizing efforts at the
turn of the 20th century, then evolving over time into what we now know
as Operation Santa.
The Postal Service now seeks to expand this program further,
enhancing the capability for spreading holiday cheer and keeping the
spirit of the holidays alive. This SOR is drafted therefore with the
goal of turning Operation Santa into a beloved, perennial program
cherished by children and adults across the country. To further that
end, this SOR will formalize components of Operation Santa, standardize
previously disparate components, and add channels for keeping the magic
alive all season long.
The USPS Operation Santa program encourages the public to adopt
letters written to Santa. For 111 years this program has helped
children and families have a magical holiday when they otherwise might
not. USPS Operation Santa is designed to allow individuals to adopt
actual letters written to Santa that are only displayed online after
any personal information is redacted to protect the confidentiality and
safety of the letter writer. Prescreened adopters have the opportunity
to adopt and send thoughtful, heartfelt gifts anonymously. Package
recipients or sender names are never revealed to program participants.
This security practice of anonymity safeguards the confidentiality of
participants, while preserving holiday ``Santa magic.''
II. Rationale for Creation of a New USPS Privacy Act System of Records
The first goal of this SOR is to formalize the letter-writing
program known as Operation Santa. Every year, thousands of individuals
write and send letters to Santa through USPS. These letters are
received, redacted of all identifying information, and placed for
``adoption'' through a USPS website. Here, members of the public have
the opportunity to register, become verified, and ``adopt'' those
letters and fulfill holiday wishes. With the creation of this SOR, USPS
will formally centralize the program for adopting letters and
fulfilling holiday wishes to solely within USPS headquarters, ensuring
that any participants in the program are provided with the rigorous
security and anonymity requirements provided by the program while also
supplanting the need for individual post office locations to create
their own letter-adoption program.
This SOR will also confer on USPS a higher capacity to ensure
accountability under this program. This will allow U.S. Postal
Inspection Service (USPIS) greater flexibility in investigating any
actual or suspected misbehavior that may occur during the seasonal
program. Further, this will allow USPS to refer incidents of improper
disclosure by USPS employees through the proper disciplinary courses.
III. Description of the New System of Records
Pursuant to 5 U.S.C. 552a (e)(11), interested persons are invited
to submit written data, views, or arguments on this proposal. A report
of the proposed new System of Records has been sent to Congress and to
the Office of Management and Budget for their evaluations. The Postal
Service does not expect that this new system of records will have any
adverse effect on individual privacy rights.
The notice for the creation of USPS SOR 1225.000, USPS Operation
Santa[supreg], is provided below in its entirety, as follows:
SYSTEM NAME AND NUMBER:
USPS 1225.000 USPS Operation Santa[supreg].
SECURITY CLASSIFICATION:
None.
SYSTEM LOCATION:
All USPS facilities and contractor sites.
SYSTEM MANAGER(S) AND ADDRESS:
Vice President, Processing & Maintenance Operations, United States
Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260.
Chief Customer and Marketing Officer and Executive Vice President,
United States Postal Service, 475 L'Enfant Plaza SW, Washington, DC
20260-4016.
Chief Postal Inspector, Inspection Service, United States Postal
Service, 475 L'Enfant Plaza SW, Washington, DC 20260.
[[Page 73133]]
Chief Information Officer and Executive Vice President, United
States Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
39 U.S.C. 401, 403, 404.
PURPOSE(S) OF THE SYSTEM:
1. To administer the formal USPS letter-writing, letter-adopting,
and gift-sending holiday program known as Operation Santa.
2. To allow individuals to create online accounts to view and adopt
redacted letters and to fulfill gift requests on behalf of letter-
writers.
3. To verify the identity of letter-adopters to ensure the safety
of the program's participants.
4. To produce semi-anonymous labels for packages sent through the
formal Operation Santa program.
5. To allow communication between USPS and letter-adopters
regarding letters, adoption, account functionality, and marketing.
6. To provide disciplinary referrals for USPS employees related to
improper disclosures of personally identifiable information.
7. To identify improper handling and improper disclosures of
personally identifiable information for administrative referral and
mitigation of harm to impacted individuals.
8. To allow investigation into fraud, abuse, and illegal conduct
related to activity occurring during the Operation Santa seasonal
program.
9. To provide an online e-commerce platform for facilitating online
gift requests.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
USPS Customers, USPS employees, USPS Contractors.
CATEGORIES OF RECORDS IN THE SYSTEM:
1. Operation Santa Participant information: Name, Email Address,
Phone Number, Address.
2. Model Release information: Name, Name of Minor Child, Name of
Minor Child's Guardian or Parent, Email Address, Phone Number,
Individual Photograph, Social Media Handle.
3. E-commerce transaction information: Transaction ID, Order
Number.
RECORD SOURCE CATEGORIES:
USPS Employees, Operation Santa Letter Participants.
ROUTINE USES OF RECORDS IN THE SYSTEM, INCLUDING CATEGORIES OF USERS
AND THE PURPOSES OF SUCH USES:
Standard routine uses 1. through 7., 10., and 11. apply.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Automated databases, computer storage media, scanned images of
letters and paper.
POLICIES OF PRACTICES FOR RETRIEVAL OF RECORDS:
Records may be retrieved by name, ZIP Code and numeric code
assigned to redacted letters.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Electronic records are retained until July 1st of the year
following the conclusion of that season's program.
Paper records are retained until July 1st of the year following the
conclusion of that season's program.
Records existing on paper are destroyed by burning, pulping, or
shredding. Records existing on computer storage media are destroyed
according to the applicable USPS media sanitization practice.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
Paper records, computers, and computer storage media are located in
controlled-access areas under supervision of program personnel. Access
to these areas is limited to authorized personnel, who must be
identified with a badge.
Access to records is limited to individuals whose official duties
require such access. Contractors and licensees are subject to contract
controls and unannounced on-site audits and inspections.
Computers are protected by mechanical locks, card key systems, or
other physical access control methods. The use of computer systems is
regulated with installed security software, computer logon
identifications, and operating system controls including access
controls, terminal and transaction logging, and file management
software. Online data transmission is protected by encryption.
RECORD ACCESS PROCEDURES
Requests for access must be made in accordance with the
Notification Procedures below and USPS Privacy Act regulations
regarding access to records and verification of identity under 39 CFR
266.5.
CONTESTING RECORD PROCEDURES
See Notification Procedures and Record Access Procedures.
NOTIFICATION PROCEDURES:
Individuals wanting to know if information about them is maintained
in this system of records must address inquiries to their local
postmasters. Individuals requesting notification must include name,
address, and other identifying information in their request.
EXEMPTIONS PROMULGATED FROM THIS SYSTEM:
None.
HISTORY:
None.
Christopher Doyle,
Attorney, Ethics and Legal Compliance.
[FR Doc. 2024-20189 Filed 9-6-24; 8:45 am]
BILLING CODE 7710-12-P | usgpo | 2024-10-08T13:26:23.879309 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20189.htm"
} |
FR | FR-2024-09-09/2024-20272 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73133-73134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20272]
-----------------------------------------------------------------------
POSTAL SERVICE
Change in Rates of General Applicability for Competitive Products
AGENCY: Postal ServiceTM.
ACTION: Notice of a change in rates of general applicability for
competitive products.
-----------------------------------------------------------------------
SUMMARY: This notice sets forth time-limited changes in rates of
general applicability for competitive products.
DATES: Applicability date: October 6, 2024.
FOR FURTHER INFORMATION CONTACT: Elizabeth Reed, 202-268-3179.
SUPPLEMENTARY INFORMATION: On August 8, 2024, pursuant to their
authority under 39 U.S.C. 3632, the Governors of the Postal Service
established time-limited price changes for competitive products. The
Governors' Decision and the record of proceedings in connection with
such decision are reprinted below in accordance with section
3632(b)(2). Mail Classification Schedule language containing the new
prices can be found at www.prc.gov.
Ruth Stevenson,
Chief Counsel, Ethics and Legal Compliance.
Decision of the Governors of the United States Postal Service on
Changes in Rates of General Applicability for Competitive Products
(Governors' Decision No. 24-4)
August 8, 2024.
Statement of Explanation and Justification
Pursuant to authority under section 3632 of title 39, as amended by
the Postal Accountability and Enhancement Act of 2006 (``PAEA''), we
establish new prices of general applicability for certain domestic
shipping services (competitive products), and concurrent classification
changes to effectuate the new prices. These prices shall be in effect
at 12:00 a.m. CDT on October 6, 2024 until 12:00 a.m. CST on January
19, 2025, at which
[[Page 73134]]
time prices will be restored to the levels that were in effect prior to
these increases. The changes are described generally below, with a
detailed description of the changes in the attachment. The attachment
includes the draft Mail Classification Schedule sections with the new
prices that will take effect on October 6 displayed in the price
charts, as well as the Mail Classification Schedule sections with the
prices that will be restored on January 19.
As shown in the nonpublic annex being filed under seal herewith,
the changes we establish should enable each competitive product to
cover its attributable costs (39 U.S.C. 3633(a)(2)) and should result
in competitive products as a whole complying with 39 U.S.C. 3633(a)(3),
which, as implemented by 39 CFR 3035.107(c), requires competitive
products collectively to contribute a minimum of 9.6 percent to the
Postal Service's institutional costs. Accordingly, no issue of
subsidization of competitive products by market dominant products
should arise (39 U.S.C. 3633(a)(1)). We therefore find that the new
prices are in accordance with 39 U.S.C. 3632-3633 and 39 CFR 3035.102.
I. Domestic Products
A. Priority Mail Express
Overall, the Priority Mail Express price change represents a 4.9
percent increase. The existing structure of zoned Retail and Commercial
price categories is maintained. Retail prices will increase 4.9 percent
on average, while the Commercial price category will increase 4.9
percent on average.
B. Priority Mail
On average, the Priority Mail prices will be increased by 5.5
percent. The existing structure of zoned Retail and Commercial price
categories is maintained. Retail prices will increase 5.3 percent on
average, while the Commercial price category will increase 5.6 percent
on average.
C. USPS Ground Advantage
USPS Ground Advantage, introduced in July 2024, is the Postal
Service's flagship ground package product. USPS Ground Advantage prices
will increase 6.4 percent on average. The existing structure of zoned
Retail and Commercial price categories is maintained. Retail prices
will increase 6.2 percent on average, while the Commercial price
category will increase 6.5 percent on average. The Alaska Limited
Overland Routes (LOR) price category will see a 10.3 percent increase.
No price changes are being made to Parcel Select, Special Services,
or International competitive products.
Order
The changes in prices set forth herein shall be effective at 12:00
a.m. on October 6, 2024, and will be rolled back to current levels at
12:00 a.m. on January 19, 2025. We direct the Secretary of the Board of
Governors to have this decision published in the Federal Register in
accordance with 39 U.S.C. 3632(b)(2), and direct management to file
with the Postal Regulatory Commission appropriate notice of these
changes.
By The Governors:
Roman Martinez IV,
Chairman, Board of Governors.
UNITED STATES POSTAL SERVICE OFFICE OF THE BOARD OF GOVERNORS
Certification of Governors' Vote on Governors' Decision No. 24-4
Consistent with 39 U.S.C. 3632(a), I hereby certify that on August
8, 2024, the Governors voted on adopting Governors' Decision No. 24-4,
and that a majority of the Governors then holding office voted in favor
of that Decision.
Date: August 8, 2024.
Michael J. Elston,
Secretary of the Board of Governors.
[FR Doc. 2024-20272 Filed 9-5-24; 8:45 am]
BILLING CODE 7710-12-P | usgpo | 2024-10-08T13:26:23.972641 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20272.htm"
} |
FR | FR-2024-09-09/2024-20241 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73134-73135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20241]
=======================================================================
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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 35313; File No. 812-15499]
Franklin BSP Capital Corporation, et al.
September 4, 2024.
AGENCY: Securities and Exchange Commission (``Commission'' or ``SEC'').
ACTION: Notice.
-----------------------------------------------------------------------
Notice of application for an order (``Order'') under sections 17(d)
and 57(i) of the Investment Company Act of 1940 (the ``Act'') and rule
17d-1 under the Act to permit certain joint transactions otherwise
prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1
under the Act.
Summary of Application: Applicants request an order to permit
certain business development companies and closed-end management
investment companies to co-invest in portfolio companies with each
other and with certain affiliated investment entities.
Applicants: Franklin BSP Capital Corporation; Franklin BSP Private
Credit Fund; 54th Street Equity Holdings, Inc.; FBLC Funding I, LLC;
BDCA-CB Funding, LLC; FBLC 57th Street Funding LLC; BDCA SLF Funding,
LLC; Benefit Street Partners Capital Opportunity Fund II L.P.; Benefit
Street Partners Capital Opportunity Fund II SPV-1 LP; Benefit Street
Partners Capital Opportunity Fund L.P.; Benefit Street Partners Capital
Opportunity Fund SPV LLC; Benefit Street Partners Dislocation Fund
(Cayman) L.P.; Benefit Street Partners Dislocation Fund (Cayman) Master
L.P.; Benefit Street Partners Dislocation Fund L.P.; Benefit Street
Partners Senior Secured Opportunities (U) Master Fund (Non-US) L.P.;
Benefit Street Partners Senior Secured Opportunities Fund L.P.; Benefit
Street Partners Senior Secured Opportunities Master Fund (Non-US) L.P.;
Benefit Street Partners Debt Fund IV (Non-US) SPV L.P.; Benefit Street
Partners Debt Fund IV 2019 Leverage (Non-US) SPV L.P.; Benefit Street
Partners Debt Fund IV 2019 Leverage SPV L.P.; Benefit Street Partners
Debt Fund IV L.P.; Benefit Street Partners Debt Fund IV Master (Non-US)
L.P.; Benefit Street Partners Debt Fund IV SPV L.P.; Benefit Street
Partners SMA LM LP; Benefit Street Partners SMA-C Co-Invest L.P.;
Benefit Street Partners SMA-C Co-Invest L.P.--Series II; BSP Coinvest
SMA-H LLC; BSP Debt Fund V LP; BSP Debt Fund V Master (Non-US) LP; BSP
Debt Fund V Unlevered (Non-US) L.P.; BSP Debt Fund V Unlevered (Non-US)
Master L.P.; BSP Debt Fund V-IA (Non-US) Master L.P.; BSP Debt Fund V-
IA (Non-US) L.P.; Benefit Street Partners SMA-C II L.P.; Benefit Street
Partners SMA-C II SPV L.P.; Benefit Street Partners SMA-C L.P.; Benefit
Street Partners SMA-C SPV L.P.; Benefit Street Partners SMA-K L.P.;
Benefit Street Partners SMA-K SPV LP; Benefit Street Partners SMA-L
L.P.; Benefit Street Partners SMA-O L.P.; Benefit Street Partners SMA-
OS L.P.; Benefit Street Partners SMA-T L.P.; Benefit Street Partners
Special Situations Fund II (Cayman) L.P.; Benefit Street Partners
Special Situations Fund II L.P.; BSP Coinvest SMA-N L.P.; BSP Coinvest
Vehicle 1 LP; BSP Coinvest Vehicle 2 L.P.; BSP Coinvest Vehicle K LP;
BSP Levered Non-US Master SOF II (Senior Secured Opportunities) Fund
L.P.; BSP Levered US SOF II (Senior Secured Opportunities) Fund L.P.;
BSP Senior Secured Debt Fund (Non-US) SPV-1 LP; BSP Senior Secured Debt
Fund SPV-1 LP; BSP SMA-T 2020 SPV L.P.; BSP SOF II Cayman SPV-21 LP;
BSP SOF II
[[Page 73135]]
SPV Cayman LP; BSP SOF II SPV LP; BSP SOF II SPV-21 LP; BSP Special
Situations Master A L.P.; BSP Special Situations Master B L.P.; BSP
Unlevered Lux Flagship Evergreen SCSP; BSP Unlevered Lux SOF II (Senior
Secured Opportunities) Fund ScSP; BSP Unlevered Non-US Master SOF II
(Senior Secured Opportunities) Fund L.P.; FBCC Lending I, LLC; Landmark
Wall SMA L.P. ; Landmark Wall SMA SPV L.P.; Providence Debt Fund III
(Non-US) SPV L.P.; Providence Debt Fund III L.P.; Providence Debt Fund
III Master (Non-US) L.P.; Providence Debt Fund III SPV L.P.; BSP Credit
Solutions Master Fund, L.P.; Benefit Street Partners L.L.C.; Franklin
BSP Capital Adviser L.L.C.; Franklin BSP Realty Trust, Inc.; BSP Michel
Unlevered Direct Lending Fund SCSP; BSP JPY Unlevered Senior Debt
Evergreen Fund, L.P.; Franklin BSP Real Estate Debt BDC; Benefit Street
Partners Real Estate Opportunistic Debt Fund L.P.; Benefit Street
Partners Real Estate Opportunistic Debt Fund II L.P.; Franklin
Templeton Private Real Estate Fund IIB LP; and Franklin Templeton
Private Real Estate Fund IIIA, L.P.
Filing Dates: The application was filed on August 21, 2023, and
amended on December 13, 2023, April 5, 2024, April 9, 2024, June 7,
2024, and August 6, 2024.
Hearing or Notification of Hearing: An order granting the requested
relief will be issued unless the Commission orders a hearing.
Interested persons may request a hearing on any application by emailing
the SEC's Secretary at [email protected] and serving the
Applicants with a copy of the request by email, if an email address is
listed for the relevant Applicant below, or personally or by mail, if a
physical address is listed for the relevant Applicant below. Hearing
requests should be received by the Commission by 5:30 p.m. on September
30, 2024, and should be accompanied by proof of service on applicants,
in the form of an affidavit or, for lawyers, a certificate of service.
Pursuant to rule 0-5 under the Act, hearing requests should state the
nature of the writer's interest, any facts bearing upon the
desirability of a hearing on the matter, the reason for the request,
and the issues contested. Persons who wish to be notified of a hearing
may request notification by emailing the Commission's Secretary at
[email protected].
ADDRESSES: The Commission: [email protected]. Applicants:
Richard J. Byrne, Benefit Street Partners L.L.C., 9 West 57th Street,
Suite 4920, New York, NY 10019; and Rajib Chanda, Esq. and Steven
Grigoriou, Esq., Simpson Thacher & Bartlett LLP, at
[email protected] and [email protected], respectively.
FOR FURTHER INFORMATION CONTACT: Kieran G. Brown, Senior Counsel, or
Terri G. Jordan, Branch Chief, at (202) 551-6825 (Division of
Investment Management, Chief Counsel's Office).
SUPPLEMENTARY INFORMATION: For Applicants' representations, legal
analysis, and conditions, please refer to Applicants' fifth amended and
restated application, dated August 5, 2024, which may be obtained via
the Commission's website by searching for the file number at the top of
this document, or for an Applicant using the Company name search field,
on the SEC's EDGAR system. The SEC's EDGAR system may be searched at,
at http://www.sec.gov/edgar/searchedgar/legacy/companysearch.html. You
may also call the SEC's Public Reference Room at (202) 551-8090.
For the Commission, by the Division of Investment Management,
under delegated authority.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2024-20241 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:24.047371 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20241.htm"
} |
FR | FR-2024-09-09/2024-20169 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73135-73136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20169]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-100896; File No. SR-NYSEARCA-2024-27]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of
Designation of a Longer Period for Commission Action on Proceedings To
Determine Whether To Approve or Disapprove a Proposed Rule Change To
List and Trade Shares of the 7RCC Spot Bitcoin and Carbon Credit
Futures ETF Under NYSE Arca Rule 8.500-E (Trust Units)
September 3, 2024.
On March 13, 2024, NYSE Arca, Inc. (``NYSE Arca'') filed with the
Securities and Exchange Commission (``Commission''), pursuant to
Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'') \1\
and Rule 19b-4 thereunder,\2\ a proposed rule change to list and trade
shares of the 7RCC Spot Bitcoin and Carbon Credit Futures ETF under
NYSE Arca Rule 8.500-E (Trust Units). The proposed rule change was
published for comment in the Federal Register on March 26, 2024.\3\
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Securities Exchange Act Release No. 99801 (Mar. 20,
2024), 89 FR 21104. Comments on the proposed rule change are
available at: https://www.sec.gov/comments/sr-nysearca-2024-27/srnysearca202427.htm.
---------------------------------------------------------------------------
On May 2, 2024, pursuant to Section 19(b)(2) of the Act,\4\ the
Commission designated a longer period within which to approve the
proposed rule change, disapprove the proposed rule change, or institute
proceedings to determine whether to disapprove the proposed rule
change.\5\ On June 20, 2024, the Commission instituted proceedings
pursuant to Section 19(b)(2)(B) of the Act \6\ to determine whether to
approve or disapprove the proposed rule change.\7\
---------------------------------------------------------------------------
\4\ 15 U.S.C. 78s(b)(2).
\5\ See Securities Exchange Act Release No. 100050, 89 FR 38932
(May 8, 2024).
\6\ 15 U.S.C. 78s(b)(2)(B).
\7\ See Securities Exchange Act Release No. 100390, 89 FR 53466
(June 26, 2024).
---------------------------------------------------------------------------
Section 19(b)(2) of the Act \8\ provides that, after initiating
disapproval proceedings, the Commission shall issue an order approving
or disapproving the proposed rule change not later than 180 days after
the date of publication of notice of filing of the proposed rule
change. The Commission may extend the period for issuing an order
approving or disapproving the proposed rule change, however, by not
more than 60 days if the Commission determines that a longer period is
appropriate and publishes the reasons for such determination. The
proposed rule change was published for notice and comment in the
Federal Register on March 26, 2024. September 22, 2024 is 180 days from
that date, and November 21, 2024 is 240 days from that date.
---------------------------------------------------------------------------
\8\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------
The Commission finds it appropriate to designate a longer period
within which to issue an order approving or disapproving the proposed
rule change so that it has sufficient time to consider the proposed
rule change and the comment it has received in connection with the
proposed rule change. Accordingly, the Commission, pursuant to Section
19(b)(2) of the Act,\9\ designates November 21, 2024 as the date by
which the Commission shall either approve or disapprove the proposed
rule change (File No. SR-NYSEARCA-2024-27).
---------------------------------------------------------------------------
\9\ Id.
[[Page 73136]]
---------------------------------------------------------------------------
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
---------------------------------------------------------------------------
\10\ 17 CFR 200.30-3(a)(57).
---------------------------------------------------------------------------
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-20169 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:24.136636 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20169.htm"
} |
FR | FR-2024-09-09/2024-20202 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20202]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[SEC File No. 270-641, OMB Control No. 3235-0685]
Proposed Collection; Comment Request; Extension: Rules 3a68-2 and
3a68-4(c)
Upon Written Request, Copies Available From: U.S. Securities and
Exchange Commission, Office of FOIA Services, 100 F Street NE,
Washington, DC 20549-2736
Notice is hereby given that pursuant to the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (``SEC'') is soliciting comments on the existing collection
of information provided for in Rules 3a68-2 and 3a68-4(c) under the
Securities Exchange Act of 1934 (``Exchange Act'') (15 U.S.C. 78a et
seq.). The SEC plans to submit this existing collection of information
to the Office of Management and Budget (``OMB'') for extension and
approval.
Rule 3a68-2 creates a process for interested persons to request a
joint interpretation by the SEC and the Commodity Futures Trading
Commission (``CFTC'') (together with the SEC, the ``Commissions'')
regarding whether a particular instrument (or class of instruments) is
a swap, a security-based swap, or both (i.e., a mixed swap). Under Rule
3a68-2, a person provides to the Commissions a copy of all material
information regarding the terms of, and a statement of the economic
characteristics and purpose of, each relevant agreement, contract, or
transaction (or class thereof), along with that person's determination
as to whether each such agreement, contract, or transaction (or class
thereof) should be characterized as a swap, security-based swap, or
both (i.e., a mixed swap). The Commissions also may request the
submitting person to provide additional information.
The SEC expects 25 requests pursuant to Rule 3a68-2 per year. The
SEC estimates the total paperwork burden associated with preparing and
submitting each request would be 20 hours to retrieve, review, and
submit the information associated with the submission. This 20-hour
burden is divided between the SEC and the CFTC, with 10 hours per
response regarding reporting to the SEC and 10 hours of response
regarding third party disclosure to the CFTC.\1\ The SEC estimates this
would result in an aggregate annual burden of 500 hours (25 requests x
20 hours/request).
---------------------------------------------------------------------------
\1\ The burdens imposed by the CFTC are included in this
collection of information.
---------------------------------------------------------------------------
The SEC estimates that the total costs resulting from a submission
under Rule 3a68-2 would be approximately $17,520 for outside attorneys
to retrieve, review, and submit the information associated with the
submission. The SEC estimates this would result in aggregate costs each
year of $438,000 (25 requests x 30 hours/request x $584).
Rule 3a68-4(c) establishes a process for persons to request that
the Commissions issue a joint order permitting such persons (and any
other person or persons that subsequently lists, trades, or clears that
class of mixed swap) to comply, as to parallel provisions only, with
specified parallel provisions of either the Commodity Exchange Act
(``CEA'') or the Exchange Act, and related rules and regulations
(collectively ``specified parallel provisions''), instead of being
required to comply with parallel provisions of both the CEA and the
Exchange Act.
The SEC expects ten requests pursuant to Rule 3a68-4(c) per year.
The SEC estimates that nine of these requests will have also been made
in a request for a joint interpretation pursuant to Rule 3a68-2, and
one will not have been. The SEC estimates the total burden for the one
request for which the joint interpretation pursuant to 3a68-2 was not
requested would be 30 hours, and the total burden associated with the
other nine requests would be 20 hours per request because some of the
information required to be submitted pursuant to Rule 3a68-4(c) would
have already been submitted pursuant to Rule 3a68-2. The burden in both
cases is evenly divided between the SEC and the CFTC.
The SEC estimates that the total costs resulting from a submission
under Rule 3a68-4(c) would be approximately $29,200 for the services of
outside attorneys to retrieve, review, and submit the information
associated with the submission of the one request for which a request
for a joint interpretation pursuant to Rule 3a68-2 was not previously
made (1 request x 50 hours/request x $584). For the nine requests for
which a request for a joint interpretation pursuant to Rule 3a68-2 was
previously made, the SEC estimates the total costs associated with
preparing and submitting a party's request pursuant to Rule 3a68-4(c)
would be $8,760 less per request because, as discussed above, some of
the information required to be submitted pursuant to Rule 3a68-4(c)
already would have been submitted pursuant to Rule 3a68-2. The SEC
estimates this would result in an aggregate cost each year of $183,960
for the services of outside attorneys (9 requests x 35 hours/request x
$584).
Written comments are invited on: (a) whether the proposed
collection of information is necessary for the proper performance of
the functions of the SEC, including whether the information shall have
practical utility; (b) the accuracy of the SEC's estimates of the
burden of the proposed collection of information; (c) ways to enhance
the quality, utility, and clarity of the information to be collected;
and (d) ways to minimize the burden of the collection of information on
respondents, including through the use of automated collection
techniques or other forms of information technology. Consideration will
be given to comments and suggestions submitted by November 8, 2024.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information under the PRA unless it
displays a currently valid OMB control number.
Please direct your written comments to: Austin Gerig, Director/
Chief Data Officer, Securities and Exchange Commission, c/o Oluwaseun
Ajayi, 100 F Street NE, Washington, DC 20549, or send an email to:
[email protected].
Dated: September 3, 2024.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2024-20202 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:24.183266 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20202.htm"
} |
FR | FR-2024-09-09/2024-20199 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73136-73137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20199]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[SEC File No. 270-451, OMB Control No. 3235-0509]
Proposed Collection; Comment Request; Extension: Rule 301 of
Regulation ATS
Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of FOIA Services, 100 F Street NE, Washington, DC
20549-2736
Notice is hereby given that pursuant to the Paperwork Reduction Act
of 1995 (``PRA'') (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission
[[Page 73137]]
(``Commission'') is soliciting comments on the existing collection of
information provided for in Rule 301 of Regulation ATS (17 CFR 242.301)
under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.). The
Commission plans to submit this existing collection of information to
the Office of Management and Budget (``OMB'') for extension and
approval.
Regulation ATS provides a regulatory structure for alternative
trading systems. Rule 301 of Regulation ATS contains certain record
keeping and reporting requirements, as well as additional obligations
that apply only to alternative trading systems with significant volume.
The Rule requires all alternative trading systems that wish to comply
with Regulation ATS to file an initial operation report on Form ATS.
Alternative trading systems are also required to supply updates on Form
ATS to the Commission describing material changes to the system, file
quarterly transaction reports on Form ATS-R, and file cessation of
operations reports on Form ATS. An alternative trading system with
significant volume is required to comply with requirements for fair
access and systems capacity, integrity, and security.
The Commission staff estimates that entities subject to the
requirements of Rule 301 will spend a total of approximately 2,983
hours a year to comply with the Rule.
Regulation ATS requires ATSs to preserve any records, for at least
three years, made in the process of complying with the system's
capacity, integrity and security requirements.
Written comments are invited on: (a) whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
estimates of the burden of the proposed collection of information; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on respondents, including through the use of automated
collection techniques or other forms of information technology.
Consideration will be given to comments and suggestions submitted by
November 8, 2024.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information under the PRA unless it
displays a currently valid OMB control number.
Please direct your written comments to: Austin Gerig, Director/
Chief Data Officer, Securities and Exchange Commission, c/o Oluwaseun
Ajayi, 100 F Street NE, Washington, DC 20549, or send an email to:
[email protected].
Dated: September 3, 2024.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2024-20199 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:24.403139 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20199.htm"
} |
FR | FR-2024-09-09/2024-20172 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73137-73145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20172]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-100901; File No. SR-SAPPHIRE-2024-26]
Self-Regulatory Organizations; MIAX Sapphire, LLC; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To
Establish Fees for Purge Ports
September 3, 2024.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on August 21, 2024, MIAX Sapphire, LLC (``MIAX Sapphire'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') a proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange is filing a proposal to amend the MIAX Sapphire Fee
Schedule (the ``Fee Schedule'') to adopt certain non-transaction fees
for Purge Ports as described below.
The text of the proposed rule change is available on the Exchange's
website at https://www.miaxglobal.com/markets/us-options/miax-sapphire/rule-filings, at the Exchange's principal office, and at the
Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
On July 15, 2024, the U.S. Securities and Exchange Commission
(``Commission'') approved the Exchange's Form 1 application to register
as a national securities exchange under Section 6 of the Exchange
Act,\3\ and the Exchange began operations on August 12, 2024. The
Exchange initially filed this proposal on August 9, 2024 (SR-SAPPHIRE-
2024-15) to establish fees for Purge Ports, which is functionality that
enables Marker Makers \4\ to cancel all open orders or a subset of open
orders through a single cancel message. The Exchange withdrew SR-
SAPPHIRE-2024-15 on August 21, 2024, and submitted this proposal.
---------------------------------------------------------------------------
\3\ See Securities Exchange Act Release No. 100539 (July 15,
2024), 89 FR 58848 (July 19, 2024) (File No. 10-240) (order
approving application of MIAX Sapphire, LLC for registration as a
national securities exchange).
\4\ The term ``Market Maker'' or ``MM'' means a Member
registered with the Exchange for the purpose of making markets in
options contracts traded on the Exchange and that is vested with the
rights and responsibilities specified in Chapter VI of the Exchange
Rules. See the Definitions Section of the Fee Schedule and Exchange
Rule 100.
---------------------------------------------------------------------------
[[Page 73138]]
Despite proposing to adopt fees herein, the Exchange also proposes
to waive the proposed Purge Port fees for an Initial Waiver Period,\5\
which began on the date the Exchange began operations and which is the
same date that the Fee Schedule became effective. However, even though
the Exchange proposes to fully waive Purge Port fees for the Initial
Waiver Period, the Exchange believes that it is appropriate to provide
market participants with the overall structure of Purge Port fees by
outlining the structure and amounts in the Fee Schedule, so that there
is general awareness that the Exchange intends to assess such fees upon
the expiration of the defined period of the Initial Waiver Period.
Additionally, the Exchange notes that the proposed fees for Purge Ports
on MIAX Sapphire are identical to Purge Port fees assessed by the
Exchange's affiliated options exchange, MIAX PEARL, LLC (``MIAX Pearl
Options'').\6\
---------------------------------------------------------------------------
\5\ The term ``Initial Waiver Period'' means, for each
applicable fee, the period of time from the initial effective date
of the MIAX Sapphire Fee Schedule plus an additional six (6) full
calendar months after the completion of the partial month of the
Exchange launch. See the Definitions Section of the Fee Schedule.
\6\ See MIAX Pearl Options Fee Schedule, Section 5) d) Port Fees
available at https://www.miaxglobal.com/markets/us-options/pearl-options/fees. See also Securities Exchange Act Release No. 100037
(April 26, 2024), 89 FR 35899 (May 2, 2024) (SR-PEARL-2024-20).
---------------------------------------------------------------------------
Purge Ports
The Exchange proposes to amend Section 5) d) iii), which was
reserved for use by an earlier proposal, to adopt Purge Port Fees to
provide that a MIAX Sapphire Market Maker may request and be allocated
two (2) Purge Ports per Matching Engine \7\ to which it connects and
will be charged a monthly fee of $600 per Matching Engine. The Exchange
believes that the proposed fee provides Market Makers with flexibility
to control their Purge Port costs based on the number of Matching
Engines each Marker Maker elects to connect to based on each Market
Maker's business needs.
---------------------------------------------------------------------------
\7\ ``Matching Engine'' is a part of the MIAX Sapphire
electronic system that processes options orders and trades on a
symbol-by-symbol basis. See the Definitions Section of the Fee
Schedule.
---------------------------------------------------------------------------
A logical port represents a port established by the Exchange within
the Exchange's System for trading and billing purposes. Each logical
port grants a Member \8\ the ability to accomplish a specific function,
such as order entry, order cancellation, access to execution reports,
and other administrative information.
---------------------------------------------------------------------------
\8\ ``Member'' means an individual or organization that is
registered with the Exchange pursuant to Chapter II of MIAX Sapphire
Exchange Rules for purposes of trading on the Exchange as an
``Electronic Exchange Member'' or ``Market Maker.'' See the
Definitions Section of the Fee Schedule.
---------------------------------------------------------------------------
Purge Ports are designed to assist Market Makers in the management
of, and risk control over, their orders, particularly if the firm is
dealing with a large number of securities. For example, if a Market
Maker detects market indications that may influence the execution
potential of their orders, the Market Maker may use Purge Ports to
reduce uncertainty and to manage risk by purging all orders in a number
of securities. This allows Market Makers to seamlessly avoid unintended
executions, while continuing to evaluate the market, their positions,
and their risk levels. Purge Ports are used by Market Makers that
conduct business activity that exposes them to a large amount of risk
across a number of securities. Purge Ports enable Market Makers to
cancel all open orders, or a subset of open orders through a single
cancel message. The Exchange notes that Purge Ports increase efficiency
of already existing functionality enabling the cancellation of orders.
The Exchange will operate a highly performant system with
significant throughput and determinism which should allow participants
to enter, update and cancel orders at high rates. Market Makers will
have the ability to cancel individual orders through the existing
functionality, such as through the use of a mass cancel message by
which a Market Maker may request that the Exchange remove all or a
subset of its quotations and block all or a subset of its new inbound
quotations.\9\ Other than Purge Ports being a dedicated line for
cancelling quotations, Purge Ports operate in the same manner as a mass
cancel message being sent over a different type of port. For example,
like Purge Ports, mass cancellations sent over a logical port may be
done at either the firm or MPID level. As a result, Market Makers can
currently cancel orders in rapid succession across their existing
logical ports \10\ or through a single cancel message, all open orders
or a subset of open orders.
---------------------------------------------------------------------------
\9\ See Exchange Rule 519C(a) and (b).
\10\ Current Exchange port functionality supports cancelation
rates that exceed one thousand messages per second and the
Exchange's research indicates that certain market participants rely
on such functionality and at times utilize such cancelation rates.
---------------------------------------------------------------------------
Similarly, Members may also use cancel-on-disconnect control when
they experience a disruption in connection to the Exchange to
automatically cancel all orders, as configured or instructed by the
Member or Market Maker.\11\ In addition, the Exchange already provides
similar ability to mass cancel orders through the Exchange's risk
controls, which are offered at no charge and enables Market Makers to
establish pre-determined levels of risk exposure, and can be used to
cancel all open orders.\12\ Accordingly, the Exchange believes that the
Purge Ports provide an efficient option as an alternative to available
services and enhance a Market Maker's ability to manage their risk.
---------------------------------------------------------------------------
\11\ See Exchange Rule 519C(c).
\12\ See Exchange Rule 517.
---------------------------------------------------------------------------
The Exchange believes that market participants benefit from a
dedicated purge mechanism for specific Members and to the market as a
whole. Market Makers will have the benefit of efficient risk management
and purge tools. The market will benefit from potential increased
quoting and liquidity as Market Makers may use Purge Ports to manage
their risk more robustly. Only Market Makers that request Purge Ports
would be subject to the proposed fees, and other Market Makers can
operate without dedicated Purge Ports, but with the additional purging
capabilities described above. Further, the Exchange notes that this
functionality is similar to functionality on the Exchange's affiliate,
MIAX Pearl Options.\13\
---------------------------------------------------------------------------
\13\ See supra note 6.
---------------------------------------------------------------------------
Implementation
The proposed fee change is immediately effective.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\14\ in general, and furthers the
objectives of Section 6(b)(5) of the Act,\15\ in particular, in that it
is not designed to permit unfair discrimination among customers,
brokers, or dealers. The Exchange also believes that its proposed fee
is consistent with Section 6(b)(4) of the Act \16\ because it
represents an equitable allocation of reasonable dues, fees and other
charges among market participants.
---------------------------------------------------------------------------
\14\ 15 U.S.C. 78f(b).
\15\ 15 U.S.C. 78f(b)(5).
\16\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------
Cost Analysis
In general, the Exchange believes that exchanges, in setting fees
of all types, should meet very high standards of transparency to
demonstrate why each new fee or fee increase meets the Exchange Act
requirements that fees be reasonable, equitably allocated, not unfairly
discriminatory, and not create an undue burden on competition among
members and markets. In particular, the
[[Page 73139]]
Exchange believes that each exchange should take extra care to be able
to demonstrate that these fees are based on its costs and reasonable
business needs.
In proposing to charge fees for port services, the Exchange is
especially diligent in assessing those fees in a transparent way
against its own aggregate costs of providing the related service, and
in carefully and transparently assessing the impact on Members--both
generally and in relation to other Members, i.e., to assure the fee
will not create a financial burden on any participant and will not have
an undue impact in particular on smaller Members and competition among
Members in general. The Exchange believes that this level of diligence
and transparency is called for by the requirements of Section 19(b)(1)
under the Act,\17\ and Rule 19b-4 thereunder,\18\ with respect to the
types of information exchanges should provide when filing fee changes,
and Section 6(b) of the Act,\19\ which requires, among other things,
that exchange fees be reasonable and equitably allocated,\20\ not
designed to permit unfair discrimination,\21\ and that they not impose
a burden on competition not necessary or appropriate in furtherance of
the purposes of the Act.\22\ The Exchange reiterates that the legacy
exchanges with whom the Exchange will vigorously compete for order flow
and market share, were not subject to any such diligence or
transparency in setting their baseline non-transaction fees, most of
which were put in place before the Staff Guidance.\23\
---------------------------------------------------------------------------
\17\ 15 U.S.C. 78s(b)(1).
\18\ 17 CFR 240.19b-4.
\19\ 15 U.S.C. 78f(b).
\20\ 15 U.S.C. 78f(b)(4).
\21\ 15 U.S.C. 78f(b)(5).
\22\ 15 U.S.C. 78f(b)(8).
\23\ See Staff Guidance on SRO Rule Filings Relating to Fees
(May 21, 2019), available at https://www.sec.gov/tm/staff-guidance-sro-rule-filings-fees (the ``Staff Guidance'').
---------------------------------------------------------------------------
As detailed below, the Exchange recently calculated its aggregate
annual costs for providing Purge Ports to be $426,238 (or approximately
$35,518 per month, rounded to the nearest dollar when dividing the
annual cost by 12 months). To recoup the costs of providing Purge Ports
to its Market Makers going forward, as described below, the Exchange
proposes to amend its Fee Schedule to charge a fee of $600 per Matching
Engine for Purge Ports. The Exchange notes that the projected revenue
will not be greater than the costs to the Exchange to provide Purge
Ports, however the Exchange believes that it is necessary to accept
this condition in order to successfully launch MIAX Sapphire.
The Exchange's affiliates \24\ previously completed a study of
their aggregate costs to produce market data and provide connectivity
and port services, defined above as its Cost Analysis.\25\ Personnel
began to plan for and develop the Exchange beginning in early 2023, and
costs included in this Cost Analysis are related to the development and
buildout of the Exchange since that time. During the Exchange's
development and buildout that occurred throughout 2023 and continues to
today, the Exchange routinely studied its aggregate costs to develop
and implement the Exchange. The Cost Analysis required a detailed
analysis of the Exchange's aggregate baseline costs, including a
determination and allocation of costs for core services provided by the
Exchange--transaction execution, market data, membership services,
physical connectivity, and port access (which provide order entry,
cancellation and modification functionality, risk functionality, the
ability to receive drop copies, and other functionality). The Exchange
separately divided its costs between those costs necessary to deliver
each of these core services, including infrastructure, software, human
resources (i.e., personnel), and certain general and administrative
expenses (``cost drivers'').
---------------------------------------------------------------------------
\24\ The affiliated markets include Miami International
Securities Exchange, LLC (``MIAX''); separately, the options and
equities markets of MIAX PEARL, LLC (``MIAX Pearl''); and MIAX
Emerald, LLC (``MIAX Emerald'').
\25\ See Securities Exchange Act Release Nos. 100036 (April 26,
2024), 89 FR 35909 (May 2, 2024) (SR-MIAX-2024-22); 100037 (April
26, 2024), 89 FR 35899 (May 2, 2024) (SR-PEARL-2024-20); 100039
(April 26, 2024), 89 FR 35891 (May 2, 2024) (SR-EMERALD-2024-14).
The Exchange frequently updates it Cost Analysis as strategic
initiatives change, costs increase or decrease, and market
participant needs and trading activity (once live trading begins)
changes. The Exchange's most recent Cost Analysis was conducted
ahead of this filing.
---------------------------------------------------------------------------
As an initial step, the Exchange determined the total cost for the
Exchange and its affiliated markets for each cost driver as part of the
Exchange's 2024 budget review process. The 2024 budget review is a
company-wide process that occurs over the course of many months,
includes meetings among senior management, department heads, and the
Finance Team. Each department head is required to send a ``bottom up''
budget to the Finance Team allocating costs at the profit and loss
account and vendor levels for the Exchange and its affiliated markets
based on a number of factors, including server counts, additional
hardware and software utilization, current or anticipated functional or
non-functional development projects, capacity needs, end-of-life or
end-of-service intervals, number of members, market model (e.g., price
time or pro-rata, simple only or simple and complex markets, auction
functionality, etc.), which may impact message traffic, individual
system architectures that impact platform size,\26\ storage needs,
dedicated infrastructure versus shared infrastructure allocated per
platform based on the resources required to support each platform,
number of available connections, and employees allocated time. All of
these factors result in different allocation percentages among the
Exchange and its affiliated markets, i.e., the different percentages of
the overall cost driver allocated to the Exchange and its affiliated
markets will cause the dollar amount of the overall cost allocated
among the Exchange and its affiliated markets to also differ. Because
the Exchange's parent company currently owns and operates five
(including MIAX Sapphire) separate and distinct marketplaces, the
Exchange must determine the costs associated with each actual market--
as opposed to the Exchange's parent company simply concluding that all
cost drivers are the same at each individual marketplace and dividing
total cost by five (5) (evenly for each marketplace). Rather, the
Exchange's parent company determines an accurate cost for each
marketplace, which results in different allocations and amounts across
exchanges for the same cost drivers, due to the unique factors of each
marketplace as described above. This allocation methodology also
ensures that no cost would be allocated twice or double-counted between
the Exchange and its affiliated markets. The Finance Team then
consolidates the budget and sends it to senior management, including
the Chief Financial Officer and Chief Executive Officer, for review and
approval. Next, the budget is presented to the Board of Directors and
the Finance and Audit Committees for each exchange for their approval.
The above steps encompass the first step of the cost allocation
process.
---------------------------------------------------------------------------
\26\ For example, MIAX Sapphire maintains 8 matching engines,
MIAX maintains 24 matching engines, MIAX Pearl Options maintains 12
matching engines, MIAX Pearl Equities maintains 24 matching engines,
and MIAX Emerald maintains 12 matching engines.
---------------------------------------------------------------------------
The next step involves determining what portion of the cost
allocated to the Exchange pursuant to the above methodology is to be
allocated to each core service, e.g., market data, connectivity, ports,
and transaction
[[Page 73140]]
services. The Exchange and its affiliated markets adopted an allocation
methodology with thoughtful and consistently applied principles to
guide how much of a particular cost amount allocated to the Exchange
should be allocated within the Exchange to each core service. This is
the final step in the cost allocation process and is applied to each of
the cost drivers set forth below.
This next level of the allocation methodology at the individual
exchange level also took into account factors similar to those set
forth under the first step of the allocation methodology process
described above, to determine the appropriate allocation to
connectivity or market data versus allocations for other services. This
allocation methodology was developed through an assessment of costs
with senior management intimately familiar with each area of the
Exchange's operations. After adopting this allocation methodology, the
Exchange then applied an allocation of each cost driver to each core
service, resulting in the cost allocations described below. Each of the
below cost allocations is unique to the Exchange and represents a
percentage of overall cost that was allocated to the Exchange pursuant
to the initial allocation described above.
By allocating segmented costs to each core service, the Exchange
was able to estimate by core service the potential margin it might earn
based on different fee models. The Exchange notes that it has five
primary sources of revenue that it can potentially use to fund its
operations: transaction fees, connectivity and port service fees,
membership fees, regulatory fees, and market data fees. Accordingly,
the Exchange must cover its expenses from these five primary sources of
revenue. The Exchange also notes that as a general matter each of these
sources of revenue is based on services that are interdependent. For
instance, the Exchange's system for executing transactions is dependent
on physical hardware and connectivity; only Members and parties that
they sponsor to participate directly on the Exchange may submit orders
to the Exchange; some Members (but not all) consume market data from
the Exchange in order to trade on the Exchange; and, the Exchange
consumes market data from external sources in order to comply with
regulatory obligations. Accordingly, given this interdependence, the
allocation of costs to each service or revenue source required judgment
of the Exchange and was weighted based on estimates of the Exchange
that the Exchange believes are reasonable, as set forth below. While
there is no standardized and generally accepted methodology for the
allocation of an exchange's costs, the Exchange's methodology is the
result of an extensive review and analysis and will be consistently
applied going forward for any other cost-justified potential fee
proposals. In the absence of the Commission attempting to specify a
methodology for the allocation of exchanges' interdependent costs, the
Exchange will continue to be left with its best efforts to attempt to
conduct such an allocation in a thoughtful and reasonable manner.
Through the Exchange's extensive updated Cost Analysis, which was
again recently further refined, the Exchange analyzed every expense
item in the Exchange's general expense ledger to determine whether each
such expense relates to the provision of connectivity and port
services, and, if such expense did so relate, what portion (or
percentage) of such expense actually supports the provision of Purge
Port services, and thus bears a relationship that is, ``in nature and
closeness,'' directly related to Purge Port services. In turn, the
Exchange allocated certain costs more to physical connectivity and
others to ports, while certain costs were only allocated to such
services at a very low percentage or not at all, using consistent
allocation methodologies as described above. Based on this analysis,
the Exchange estimates that the aggregate monthly cost to provide Purge
Port services is $35,518, as further detailed below.
Costs Related to Offering Purge Ports
The following chart details the individual line-item costs
considered by the Exchange to be related to offering Purge Ports as
well as the percentage of the Exchange's overall costs that such costs
represent for each cost driver (e.g., as set forth below, the Exchange
allocated approximately 3.5% of its overall Human Resources cost to
offering Purge Ports).
----------------------------------------------------------------------------------------------------------------
Allocated Allocated
Cost drivers annual cost monthly cost % of all
\a\ \b\
----------------------------------------------------------------------------------------------------------------
Human Resources................................................. $363,954 $30,329 3.6
Connectivity (external fees, cabling, switches, etc.)........... 112 9 0.4
Internet Services and External Market Data...................... 654 54 0.4
Data Center..................................................... 6,764 564 1.1
Hardware and Software Maintenance and Licenses.................. 2,185 182 0.4
Depreciation.................................................... 19,518 1,626 1.6
Allocated Shared Expenses....................................... 33,051 2,754 1.2
-----------------------------------------------
Total...................................................... 426,238 35,518 2.7
----------------------------------------------------------------------------------------------------------------
\a\ The Annual Cost includes figures rounded to the nearest dollar.
\b\ The Monthly Cost was determined by dividing the Annual Cost for each line item by twelve (12) months and
rounding up or down to the nearest dollar.
Below are additional details regarding each of the line-item costs
considered by the Exchange to be related to offering Purge Ports. While
some costs were attempted to be allocated as equally as possible among
the Exchange and its affiliated markets, the Exchange notes that some
of its cost allocation percentages for certain cost drivers differ when
compared to the same cost drivers for the Exchange's affiliated markets
in their similar proposed fee changes for Purge Ports. This is because
the Exchange's cost allocation methodology utilizes the actual
projected costs of the Exchange (which are specific to the Exchange and
are independent of the costs projected and utilized by the Exchange's
affiliated markets) to determine its actual costs, which may vary
across the Exchange and its affiliated markets based on factors that
are unique to each marketplace. The Exchange provides additional
explanation below (including the reason for the deviation) for the
significant differences.
Human Resources
The Exchange notes that it and its affiliated markets anticipate
that by year-end 2024, there will be 289 employees (excluding employees
at
[[Page 73141]]
non-options/equities exchange subsidiaries of Miami International
Holdings, Inc. (``MIH''), the holding company of the Exchange and its
affiliated markets), and each department leader has direct knowledge of
the time spent by each employee with respect to the various tasks
necessary to operate the Exchange. Specifically, twice a year, and as
needed with additional new hires and new project initiatives, in
consultation with employees as needed, managers and department heads
assign a percentage of time to every employee and then allocate that
time amongst the Exchange and its affiliated markets to determine each
market's individual Human Resources expense. Then, managers and
department heads assign a percentage of each employee's time allocated
to the Exchange into buckets including network connectivity, ports,
market data, and other exchange services. This process ensures that
every employee is 100% allocated, ensuring there is no double counting
between the Exchange and its affiliated markets.
For personnel costs (Human Resources), the Exchange calculated an
allocation of employee time for employees whose functions include
providing and maintaining Purge Ports and performance thereof
(primarily the Exchange's network infrastructure team, which spends
most of their time performing functions necessary to provide port and
connectivity services). As described more fully above, the Exchange's
parent company allocates costs to the Exchange and its affiliated
markets and then a portion of the Human Resources costs allocated to
the Exchange is then allocated to port services. From that portion
allocated to the Exchange that applied to ports, the Exchange then
allocated a weighted average of 4.8% of each employee's time from the
above group to Purge Ports.
The Exchange also allocated Human Resources costs to provide Purge
Ports to a limited subset of personnel with ancillary functions related
to establishing and maintaining such ports (such as information
security, sales, membership, and finance personnel). The Exchange
allocated cost on an employee-by-employee basis (i.e., only including
those personnel who support functions related to providing Purge Ports)
and then applied a smaller allocation to such employees' time to Purge
Ports (2.2%). This other group of personnel with a smaller allocation
of Human Resources costs also have a direct nexus to Purge Ports,
whether it is a sales person selling port services, finance personnel
billing for port services or providing budget analysis, or information
security ensuring that such ports are secure and adequately defended
from an outside intrusion.
The estimates of Human Resources cost were therefore determined by
consulting with such department leaders, determining which employees
are involved in tasks related to providing Purge Ports, and confirming
that the proposed allocations were reasonable based on an understanding
of the percentage of time such employees devote to those tasks. This
includes personnel from the Exchange departments that are predominately
involved in providing Purge Ports: Business Systems Development,
Trading Systems Development, Systems Operations and Network Monitoring,
Network and Data Center Operations, Listings, Trading Operations, and
Project Management. Again, the Exchange allocated 4.8% of each of their
employee's time assigned to the Exchange for Purge Ports, as stated
above. Employees from these departments perform numerous functions to
support Purge Ports, such as the installation, re-location,
configuration, and maintenance of Purge Ports and the hardware they
access. This hardware includes servers, routers, switches, firewalls,
and monitoring devices. These employees also perform software upgrades,
vulnerability assessments, remediation and patch installs, equipment
configuration and hardening, as well as performance and capacity
management. These employees also engage in research and development
analysis for equipment and software supporting Purge Ports and design,
and support the development and on-going maintenance of internally-
developed applications as well as data capture and analysis, and Member
and internal Exchange reports related to network and system
performance. The above list of employee functions is not exhaustive of
all the functions performed by Exchange employees to support Purge
Ports, but illustrates the breath of functions those employees perform
in support of the above cost and time allocations.
Lastly, the Exchange notes that senior level executives' time was
only allocated to the Purge Ports related Human Resources costs to the
extent that they are involved in overseeing tasks related to providing
Purge Ports. The Human Resources cost was calculated using a blended
rate of compensation reflecting salary, equity and bonus compensation,
benefits, payroll taxes, and 401(k) matching contributions.
Connectivity (External Fees, Cabling, Switches, etc.)
The Connectivity cost driver includes external fees paid to connect
to other exchanges and third parties, cabling and switches required to
operate the Exchange. The Connectivity cost driver is more narrowly
focused on technology used to complete connections to the Exchange and
to connect to external markets. The Exchange notes that its
connectivity to external markets vendors is required in order to
receive market data to run the Exchange's matching engine and basic
operations compliant with existing regulations, primarily Regulation
NMS.
The Exchange relies on various connectivity providers for
connectivity to the entire U.S. options industry, and infrastructure
services for critical components of the network that are necessary to
provide and maintain its System Networks and access to its System
Networks via 10Gb ULL connectivity. Specifically, the Exchange utilizes
connectivity providers to connect to other national securities
exchanges and the Options Price Reporting Authority (``OPRA''). The
Exchange understands that these service providers provide services to
most, if not all, of the other U.S. exchanges and other market
participants. Connectivity provided by these service providers is
critical to the Exchanges daily operations and performance of its
System Networks which includes Purge Ports. Without these services
providers, the Exchange would not be able to connect to other national
securities exchanges, market data providers or OPRA and, therefore,
would not be able to operate and support its System Networks, including
Purge Ports. In addition, the connectivity is necessary for the
Exchange to notify OPRA and other market participants that an order has
been cancelled, and that quotes may have been cancelled as a result of
a Market Maker purging quotes via their Purge Port. Also, like other
types of ports offered by the Exchange, Purge Ports leverage the
Exchange's existing 10Gb ULL connectivity, which also relies on
connectivity to other national securities exchanges and OPRA. The
Exchange does not employ a separate fee to cover its connectivity
provider expense and recoups that expense, in part, by charging for
Purge Ports.
Internet Services and External Market Data
The next cost driver consists of internet services and external
market data. Internet services includes third-party service providers
that provide the
[[Page 73142]]
internet, fiber and bandwidth connections between the Exchange's
networks, primary and secondary data centers, and office locations in
Princeton and Miami. For purposes of Purge Ports, the Exchange also
includes a portion of its costs related to external market data.
External market data includes fees paid to third parties, including
OPRA, to receive and consume market data from other markets. The
Exchange includes external market data costs towards Purge Ports
because such market data is necessary to offer certain services related
to such ports, such as checking for market conditions (e.g., halted
securities). External market data is also consumed at the Matching
Engine level for, among other things, as validating quotes on entry
against the national best bid or offer (``NBBO'').\27\ Purge Ports are
a component of the Matching Engine, and used by Market Makers to cancel
multiple resting quotes within the Matching Engine. While resting, the
Exchange uses external market data to manage those quotes, such as
preventing trade-throughs, and those quotes are also reported to OPRA
for inclusion in this consolidated data stream. The Exchange also must
notify OPRA and other market participants that an order has been
cancelled, and that quotes may have been cancelled as a result of a
Market Maker purging quotes via their Purge Port. Thus, since market
data from other exchanges is consumed by the Matching Engine to
validate quotes and check market conditions, the Exchange believes it
is reasonable to allocate a small amount of such costs to Purge Ports.
---------------------------------------------------------------------------
\27\ The term ``NBBO'' means the national best bid or offer as
calculated by the Exchange based on market information received by
the Exchange from OPRA. See Exchange Rule 100.
---------------------------------------------------------------------------
For the reasons set forth above, the Exchange believes it is
reasonable to allocate a small amount of such costs to Purge Ports
since market data from other exchanges is consumed at the Exchange's
Purge Port level to validate purge messages and the necessity to cancel
a resting quote via a purge message or via some other means.
Data Center
Data Center costs includes an allocation of the costs the Exchange
incurs to provide Purge Ports in the third-party data centers where it
maintains its equipment as well as related costs for market data to
then enter the Exchange's System. The Exchange does not own the Primary
Data Center or the Secondary Data Center, but instead, leases space in
data centers operated by third parties. The Exchange has allocated a
percentage of its Data Center cost (1.1%) to Purge Ports because the
third-party data centers and the Exchange's physical equipment
contained therein are necessary for providing Purge Ports. In other
words, for the Exchange to operate in a dedicated physical space with
direct connectivity by market participants to its trading platform, the
data centers are a critical component to the provision of Purge Ports.
If the Exchange did not maintain such a presence, then Purge Ports
would be of little value to market participants.
Hardware and Software Maintenance and Licenses
Hardware and Software Licenses includes hardware and software
licenses used to operate and monitor physical assets necessary to offer
Purge Ports for each Matching Engine of the Exchange. This hardware
includes servers, network switches, cables, optics, protocol data
units, and cabinets, to maintain a state-of-the-art technology
platform. Without hardware and software licenses, Purge Ports would not
be able to be offered to market participants because hardware and
software are necessary to operate the Exchange's Matching Engines,
which are necessary to enable the purging of quotes. The Exchange also
routinely works to improve the performance of the hardware and software
used to operate the Exchange's network and System. The costs associated
with maintaining and enhancing a state-of-the-art exchange network is a
significant expense for the Exchange, and thus the Exchange believes
that it is reasonable and appropriate to allocate a certain percentage
of its hardware and software expense to help offset those costs of
providing Purge Port connectivity to its Matching Engines.
Depreciation
The vast majority of the software the Exchange uses to provide
Ports has been developed in-house and the cost of such development,
which takes place over an extended period of time and includes not just
development work, but also quality assurance and testing to ensure the
software works as intended, is depreciated over time once the software
is activated in the production environment. Hardware used to provide
Purge Ports includes equipment used for testing and monitoring of order
entry infrastructure and other physical equipment the Exchange
purchased and is also depreciated over time.
All hardware and software, which also includes assets used for
testing and monitoring of order entry infrastructure, were valued at
cost, depreciated or leased over periods ranging from three to five
years. Thus, the depreciation cost primarily relates to servers
necessary to operate the Exchange, some of which is owned by the
Exchange and some of which is leased by the Exchange in order to allow
efficient periodic technology refreshes. The Exchange allocated 0.8%
[sic] of all depreciation costs to providing Purge Ports. The Exchange
allocated depreciation costs for depreciated software necessary to
operate the Exchange because such software is related to the provision
of Purge Ports. As with the other allocated costs in the Exchange's
updated Cost Analysis, the Depreciation cost driver was therefore
narrowly tailored to depreciation related to Purge Ports.
Allocated Shared Expenses
Finally, a portion of general shared expenses was allocated to
overall Purge Port costs as without these general shared costs the
Exchange would not be able to operate in the manner that it does and
provide Purge Ports. The costs included in general shared expenses
include general expenses of the Exchange, including office space and
office expenses (e.g., occupancy and overhead expenses), utilities,
recruiting and training, marketing and advertising costs, professional
fees for legal, tax and accounting services (including external and
internal audit expenses), and telecommunications costs. The Exchange
notes that the cost of paying directors to serve on its Board of
Directors is included in the calculation of Allocated Shared Expenses,
and thus a portion of such overall cost amounting to less than 2% of
the overall cost for directors was allocated to providing Purge Ports.
Approximate Cost for Purge Port per Month
Based on projected 2024 data, the total monthly cost allocated to
Purge Ports is $35,518. This total is divided by the total number of
Matching Engines (8) in which Market Makers may use Purge Ports for
each month, divided by the anticipated number of Market Makers results
in an approximate cost of $634 per Matching Engine per month for Purge
Port usage (when rounding to the nearest dollar). The Exchange notes
that the flat fee of $600 per month per Matching Engine entitles each
Market Maker to two Purge Ports per Matching Engine. The Exchange
anticipates that the majority of Market Makers will connect to all
eight of the Exchange's Matching Engines and utilize Purge Ports on
each Matching Engine. The
[[Page 73143]]
Exchange recognizes that costs are greater than anticipated revenues
but accepts this condition as a necessary cost to be incurred when
launching a new exchange.
Cost Analysis--Additional Discussion
In conducting its Cost Analysis, the Exchange did not allocate any
of its expenses in full to any core services (including Purge Ports)
and did not double-count any expenses. Instead, as described above, the
Exchange allocated applicable cost drivers across its core services and
used the same Cost Analysis to form the basis of this proposal. For
instance, in calculating the Human Resources expenses to be allocated
to Purge Ports based upon the above described methodology, the Exchange
has a team of employees dedicated to network infrastructure and with
respect to such employees the Exchange allocated network infrastructure
personnel with a higher percentage of the cost of such personnel
(21.7%) given their focus on functions necessary to provide Ports. The
salaries of those same personnel were allocated only 4.8% to Purge
Ports and the remaining 95.2% was allocated to connectivity, other port
services, transaction services, membership services and market data.
The Exchange did not allocate any other Human Resources expense for
providing Purge Ports to any other employee group, outside of a smaller
allocation of 2.2% for Purge Ports, of the cost associated with certain
specified personnel who work closely with and support network
infrastructure personnel. This is because a much wider range of
personnel are involved in functions necessary to offer, monitor and
maintain Purge Ports but the tasks necessary to do so are not a primary
or full-time function.
In total, the Exchange allocated 3.6% of its personnel costs to
providing Purge Ports. In turn, the Exchange allocated the remaining
96.4% of its Human Resources expense to membership services,
transaction services, connectivity services, other port services and
market data. Thus, again, the Exchange's allocations of cost across
core services were based on real costs of operating the Exchange and
were not double-counted across the core services or their associated
revenue streams.
As another example, the Exchange allocated depreciation expense to
all core services, including Purge Ports, but in different amounts. The
Exchange believes it is reasonable to allocate the identified portion
of such expense because such expense includes the actual cost of the
computer equipment, such as dedicated servers, computers, laptops,
monitors, information security appliances and storage, and network
switching infrastructure equipment, including switches and taps that
were purchased to operate and support the network. Without this
equipment, the Exchange would not be able to operate the network and
provide Purge Port services to its Market Makers. However, the Exchange
did not allocate all of the depreciation and amortization expense
toward the cost of providing Purge Port services, but instead allocated
approximately 0.8% [sic] of the Exchange's overall depreciation and
amortization expense to Purge Ports. The Exchange allocated the
remaining depreciation and amortization expense (approximately 99.2%
[sic]) toward the cost of providing transaction services, membership
services, connectivity services, other port services, and market data.
The Exchange notes that its revenue estimates are based on
projections across all potential revenue streams and will only be
realized to the extent such revenue streams actually produce the
revenue estimated. The Exchange does not yet know whether such
expectations will be realized. For instance, in order to generate the
revenue expected from Purge Ports, the Exchange will have to be
successful in retaining existing Market Makers that wish to maintain
Purge Ports or in obtaining new Market Makers that will purchase such
services. Similarly, the Exchange will have to be successful in
retaining a positive net capture on transaction fees in order to
realize the anticipated revenue from transaction pricing.
The Exchange notes that the Cost Analysis is based on the
Exchange's 2024 fiscal year of operations and projections. It is
possible, however, that actual costs may be higher or lower. To the
extent the Exchange sees growth in use of connectivity services it will
receive additional revenue to offset future cost increases. However, if
use of port services is static or decreases, the Exchange might not
realize the revenue that it anticipates or needs in order to cover
applicable costs. Accordingly, the Exchange is committing to conduct a
one-year review after implementation of these fees. The Exchange
expects that it may propose to adjust fees at that time, to increase
fees in the event that revenues fail to cover costs and a reasonable
mark-up of such costs. Similarly, the Exchange may propose to decrease
fees in the event that revenue materially exceeds our current
projections. In addition, the Exchange will periodically conduct a
review to inform its decision making on whether a fee change is
appropriate (e.g., to monitor for costs increasing/decreasing or
subscribers increasing/decreasing, etc. in ways that suggest the then-
current fees are becoming dislocated from the prior cost-based
analysis) and would propose to increase fees in the event that revenues
fail to cover its costs and a reasonable mark-up, or decrease fees in
the event that revenue or the mark-up materially exceeds our current
projections. In the event that the Exchange determines to propose a fee
change, the results of a timely review, including an updated cost
estimate, will be included in the rule filing proposing the fee change.
More generally, the Exchange believes that it is appropriate for an
exchange to refresh and update information about its relevant costs and
revenues in seeking any future changes to fees, and the Exchange
commits to do so.
Projected Revenue \28\
---------------------------------------------------------------------------
\28\ For purposes of calculating projected 2024 revenue for
Purge Ports, the Exchange is using estimated projections.
---------------------------------------------------------------------------
The proposed fees will allow the Exchange to cover certain costs
incurred by the Exchange associated with providing and maintaining
necessary hardware and other network infrastructure as well as network
monitoring and support services; without such hardware, infrastructure,
monitoring and support the Exchange would be unable to provide port
services. Much of the cost relates to monitoring and analysis of data
and performance of the network via the subscriber's connection(s). The
above cost, namely those associated with hardware, software, and human
capital, enable the Exchange to measure network performance with
nanosecond granularity. These same costs are also associated with time
and money spent seeking to continuously improve the network
performance, improving the subscriber's experience, based on monitoring
and analysis activity. The Exchange routinely works to improve the
performance of the network's hardware and software. The costs
associated with maintaining and enhancing a state-of-the-art exchange
network is a significant expense for the Exchange, and thus the
Exchange believes that it is reasonable and appropriate to help offset
those costs by amending fees for Purge Port services. Subscribers,
particularly those of Purge Ports, expect the Exchange to provide this
level of support so they continue to receive the performance they
expect. This differentiates the Exchange from its competitors. As
detailed above, the Exchange has five primary sources of
[[Page 73144]]
revenue that it can potentially use to fund its operations: transaction
fees, fees for connectivity services (connections and ports),
membership and regulatory fees, and market data fees. Accordingly, the
Exchange must cover its expenses from these five primary sources of
revenue.
The Exchange's Cost Analysis estimates the annual cost to provide
Purge Port services will equal $426,238. Based on projected Purge Port
services usage, the Exchange would generate annual revenue of
approximately $403,200. The Exchange estimates it will incur a 5.7%
loss when comparing revenues to the cost of providing Purge Port
services.
Based on the above discussion, the Exchange believes that even if
the Exchange earns the above revenue or incrementally more or less, the
proposed fees are fair and reasonable because they will not result in
pricing that deviates from that of other exchanges or a supra-
competitive profit, when comparing the total expense of the Exchange
associated with providing Purge Port services versus the total
projected revenue of the Exchange associated with network Purge Port
services.
The Proposed Fees Are Also Equitable, Reasonable, and Not Unfairly
Discriminatory
The Exchange believes that the proposed rule change would promote
just and equitable principles of trade and remove impediments to and
perfect the mechanism of a free and open market because offering Market
Makers optional Purge Port services with a flexible fee structure
promotes choice, flexibility, and efficiency. The Exchange believes
Purge Ports enhance Market Makers' ability to manage orders, which
would, in turn, improve their risk controls to the benefit of all
market participants. The Exchange believes that Purge Ports foster
cooperation and coordination with persons engaged in facilitating
transactions in securities because designating Purge Ports for purge
messages may encourage better use of such ports. This may, concurrent
with the ports that carry orders and other information necessary for
market making activities, enable more efficient, as well as fair and
reasonable, use of Market Makers' resources. The Exchange believes that
proper risk management, including the ability to efficiently cancel
multiple orders quickly when necessary is valuable to all firms,
including Market Makers that have heightened quoting obligations that
are not applicable to other market participants.
Purge Ports do not relieve Market Makers of their quoting
obligations or firm quote obligations under Regulation NMS Rule
602.\29\ Specifically, any interest that is executable against a
Member's or Market Maker's orders that is received by the Exchange
prior to the time of the removal of orders request will automatically
execute. Market Makers that purge their orders will not be relieved of
the obligation to provide continuous two-sided orders on a daily basis,
nor will it prohibit the Exchange from taking disciplinary action
against a Market Maker for failing to meet their continuous quoting
obligation each trading day.\30\
---------------------------------------------------------------------------
\29\ See Exchange Rule 604. See also generally Chapter VI of the
Exchange's Rules.
\30\ Id.
---------------------------------------------------------------------------
The Exchange also believes that offering Purge Ports at the
Matching Engine level promotes risk management across the industry, and
thereby facilitates investor protection. Some market participants, in
particular the larger firms, could and do build similar risk
functionality in their trading systems that permit the flexible
cancellation of orders entered on the Exchange at a high rate. Offering
Matching Engine level protections ensures that such functionality is
widely available to all firms, including smaller firms that may
otherwise not be willing to incur the costs and development work
necessary to support their own customized mass cancel functionality.
The Exchange also believes that moving to a per Matching Engine fee
for Purge Ports is reasonable due to the Exchange's architecture that
provides the Exchange the ability to provide two (2) Purge Ports per
Matching Engine.
The Exchange believes that the proposed Purge Port fees are
equitable because the proposed Purge Ports are completely voluntary as
they relate solely to optional risk management functionality.
The Exchange also believes that the proposed amendments to its Fee
Schedule are not unfairly discriminatory because they will apply
uniformly to all Market Makers that choose to use the optional Purge
Ports. Purge Ports are completely voluntary and, as they relate solely
to optional risk management functionality, no Market Maker is required
or under any regulatory obligation to utilize them. All Market Makers
that voluntarily select this service option will be charged the same
amount for the same services. Market Makers have the option to select
any port or connectivity option, and there is no differentiation among
Market Makers with regard to the fees charged for the services offered
by the Exchange.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. Purge Ports are completely
voluntary and are available to all Market Makers on an equal basis at
the same cost. While the Exchange believes that Purge Ports provide a
valuable service, Market Makers can choose to purchase, or not
purchase, these ports based on their own determination of the value and
their business needs. No Market Maker is required or under any
regulatory obligation to utilize Purge Ports. Accordingly, the Exchange
believes that Purge Ports offer appropriate risk management
functionality to firms that trade on the Exchange without imposing an
unnecessary or inappropriate burden on competition.
The Exchange also does not believe the proposal would cause any
unnecessary or inappropriate burden on intermarket competition as other
exchanges are free to introduce their own purge port functionality and
lower their prices to better compete with the Exchange's offering. The
Exchange does not believe the proposed rule change would cause any
unnecessary or inappropriate burden on intramarket competition.
Particularly, the proposal would apply uniformly to any market
participant, in that it does not differentiate between Market Makers.
The proposal would allow any interested Market Maker to purchase Purge
Port functionality based on their business needs.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
Written comments were neither solicited nor received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act,\31\ and Rule 19b-4(f)(2) \32\ thereunder.
At any time within 60 days of the filing of the proposed rule change,
the Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is
[[Page 73145]]
necessary or appropriate in the public interest, for the protection of
investors, or otherwise in furtherance of the purposes of the Act. If
the Commission takes such action, the Commission shall institute
proceedings to determine whether the proposed rule should be approved
or disapproved.
---------------------------------------------------------------------------
\31\ 15 U.S.C. 78s(b)(3)(A)(ii).
\32\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------
IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
file number SR-SAPPHIRE-2024-26 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to file number SR-SAPPHIRE-2024-26. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-SAPPHIRE-2024-26 and should
be submitted on or before September 30, 2024.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\33\
---------------------------------------------------------------------------
\33\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Vanessa A. Countryman,
Secretary.
[FR Doc. 2024-20172 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:24.466704 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20172.htm"
} |
FR | FR-2024-09-09/2024-20170 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73145-73148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20170]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-100897; File No. SR-NSCC-2024-007]
Self-Regulatory Organizations; National Securities Clearing
Corporation; Notice of Filing and Immediate Effectiveness of Proposed
Rule Change To Modify the NSCC Rules & Procedures To Accommodate
Fractional Share Trading Programs
September 3, 2024.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on August 21, 2024, National Securities Clearing Corporation (``NSCC'')
filed with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I, II and III below, which
Items have been prepared by the clearing agency. NSCC filed the
proposed rule change pursuant to Section 19(b)(3)(A) of the Act \3\ and
Rule 19b-4(f)(6) thereunder.\4\ The Commission is publishing this
notice to solicit comments on the proposed rule change from interested
persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A).
\4\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------
I. Clearing Agency's Statement of the Terms of Substance of the
Proposed Rule Change
The proposed rule change consists of modifications to the NSCC
Rules & Procedures (``Rules'') to accommodate the Member submission and
trade recording of certain trades executed in connection with
fractional share trading programs, as described in greater detail
below.\5\
---------------------------------------------------------------------------
\5\ Capitalized terms not defined herein shall have the meaning
assigned to such terms in the Rules, available at www.dtcc.com/legal/rules-and-procedures.
---------------------------------------------------------------------------
II. Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change
In its filing with the Commission, the clearing agency included
statements concerning the purpose of and basis for the proposed rule
change and discussed any comments it received on the proposed rule
change. The text of these statements may be examined at the places
specified in Item IV below. The clearing agency has prepared summaries,
set forth in sections A, B, and C below, of the most significant
aspects of such statements.
(A) Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change
1. Purpose
The purpose of this proposed rule change is to amend the real-time
trade submission requirements in NSCC Rule 7 and Procedure II to
accommodate the Member submission and trade recording of certain trades
representing transactions from fractional share trading programs. The
proposed rule change is discussed in detail below.
Background
NSCC Rule 7, Section 7 requires that trade data submitted to NSCC
for trade recording be submitted in ``Real-time,'' \6\ and on a trade-
by-trade basis, in the form executed without any form of ``pre-
netting'' of such trades prior to their submission (collectively, the
``Real-time Trade Submission Requirement''). Cleared contract
information is then reported out to submitting firms by NSCC's
Universal Trade Capture (``UTC'') system \7\ upon trade comparison and
validation. The receipt of trade data in real-time enables NSCC to
report to Members trade data as it is received, thereby promoting
intra-day reconciliation of transactions at the Member level, and also
facilitates efficient risk management for both NSCC and its Members.
---------------------------------------------------------------------------
\6\ NSCC Procedure XIII defines ``Real-time'' to mean the
``submission of trade data on a trade-by-trade basis promptly after
trade execution, in any format and by any communication method
acceptable to [NSCC].'' See NSCC Procedure XIII, supra note 5.
\7\ NSCC's UTC system validates and reports equity transactions
that are submitted to NSCC throughout the trading day by an exchange
or by a Qualified Special Representative that is an NSCC Member.
---------------------------------------------------------------------------
From an operational perspective, NSCC is only able to accept trades
for clearing in units of full shares. Moreover, stocks do not trade on
exchanges in units of less than one share, and trades may only be
reported to a trade reporting facility in multiples
[[Page 73146]]
of one share.\8\ Some broker-dealers, however, offer programs enabling
their customers to purchase and sell shares on a fractional basis
(i.e., less than one full share of a stock or other security).\9\ These
programs vary by broker-dealer and may involve the broker-dealer using
its own capital to purchase/sell a full share and giving its customer
the fraction or aggregating customer orders together to form full
shares.
---------------------------------------------------------------------------
\8\ See ``Trade Reporting Frequently Asked Questions #101.14,''
Financial Industry Regulatory Authority, available at www.finra.org/filing-reporting/market-transparency-reporting/trade-reporting-faq.
\9\ See ``Staff Report on Equity and Options Market Structure
Conditions in Early 2021,'' SEC, page 7, available at www.sec.gov/files/staff-report-equity-options-market-struction-conditions-early-2021.pdf.
---------------------------------------------------------------------------
Because NSCC cannot operationally process fractions of shares,
Members offering fractional share trading programs cannot submit
certain transactions from fractional share trading programs for
clearing. Trades in fractional shares may be reported to a trade
reporting facility in multiples of one share; however, for fractional
shares this must be done in accordance with certain rounding
conventions.\10\ NSCC believes that such trades could be similarly
aggregated into full shares for submission to NSCC as Correspondent
Clearing transactions.\11\ Section 2(b) of Rule 7 provides that a
Special Representative \12\ may submit to NSCC transaction data as to
the rights and obligations of Members which calls for the delivery of
Cleared Securities and is between Members. This includes Correspondent
Clearing transactions, which allow NSCC Members to move a position from
an executing broker (or Special Representative) account to a different
clearing broker (i.e., correspondent) account. NSCC allows exceptions
to the Real-time Trade Submission Requirement for Correspondent
Clearing transactions submitted under Section 2(b) of Rule 7 if the
trade data is submitted to facilitate a position movement between
affiliates or is between two unaffiliated clearing brokers on behalf of
a common client for custody purposes.\13\ NSCC believes a similar
exception would be appropriate for certain transactions from fractional
share trading programs.
---------------------------------------------------------------------------
\10\ See supra note 8.
\11\ The Correspondent Clearing service allows an NSCC Member
broker-dealer to use one broker-dealer for an execution and another
for clearance and settlement. See NSCC Procedure IV, Section C,
supra note 5.
\12\ A ``Special Representative'' is a Member or a Registered
Clearing Agency which applies to NSCC for such status and designates
those Members for which it will act. Special Representatives may
submit to NSCC for trade recording trade data on any transaction
calling for delivery of Cleared Securities between it and another
person. See NSCC Rule 7, Sections 1 and 2(a), supra note 5.
\13\ See NSCC Rule 7, Section 7, supra note 5. NSCC notes that
the Real-time Trade Submission Requirement in NSCC Rule 7, Section 7
also does not apply to transaction data for exchange-traded funds
submitted pursuant to Section 4(b) of Rule 7.
---------------------------------------------------------------------------
Proposed Changes
NSCC proposes to revise its Rules to allow an exception to the
Real-time Trade Submission Requirement for Correspondent Clearing
transactions representing aggregated transactions of fractional shares.
As described above, NSCC cannot currently process trades on a
fractional basis. However, NSCC may accept aggregated transactions from
fractional share trading programs for clearing if such transactions are
submitted in multiples of one share based on rounding conventions
similar to those used for reporting such transactions to trade
reporting facilities.
For example, a broker-deal (``Broker A'') may receive an order from
a customer to purchase 6.5 shares of ABC Corp. Broker A may route that
order to an executing broker (``Broker B'') to purchase 6.5 shares.
Broker B then executes an order to buy 7 shares of ABC Corp. on a
trading venue such as an exchange or alternative trading system, which
only offers trading in full shares. This transaction clears in real-
time at NSCC with Broker B as the buyer versus its contra party. Broker
B would then submit a Correspondent Clearing transaction \14\ to NSCC
for 6 shares of ABC Corp., with Broker B as the seller and Broker A as
the buyer. This transaction would also clear in real-time at NSCC. To
accommodate the fractional share, Broker A would set up a fail to
receive of 0.5 shares of ABC Corp. versus Broker B, and Broker B would
set up fail to deliver of 0.5 shares of ABC Corp. versus Broker A.
Broker B would take principal ownership of the remaining 0.5 shares of
ABC Corp. This position would be held in Broker B's omnibus account at
the broker-dealer until the account accumulates to at least one (1)
full share.
---------------------------------------------------------------------------
\14\ See supra note 11 and associated text.
---------------------------------------------------------------------------
The following day, Broker A may receive another order from a
customer to purchase 6.5 shares of ABC Corp. Broker A again routes the
order to executing Broker B to purchase 6.5 shares. This time, Broker B
executes an order to buy 6 shares of ABC Corp. on a trading venue. This
transaction clears in real-time at NSCC with Broker B as buyer versus
its contra party. Broker B then submits a Correspondent Clearing
transaction to NSCC for 6 shares of ABC Corp. with Broker B as seller
and Broker A as buyer. This transaction also clears in real-time at
NSCC. Broker B then ultimately submits an additional Correspondent
Clearing transaction to NSCC for 1 share of ABC Corp. with Broker B as
seller and Broker A as buyer. This transaction clears at NSCC, and
Broker A and Broker B close-out the fail to receive/deliver with one
another.
In the example above, the rounding, aggregation and submission of
transactions in fractional shares could be interpretated as not
satisfying the Real-time Trade Submission Requirement. For example, the
Correspondent Clearing transactions containing aggregated fractional
shares may not be submitted promptly after execution of the underlying
trades executed by the executing broker and the aggregated shares may
not be submitted in the form executed. The Real-time Trade Submission
Requirement was not designed, however, to prohibit the submission of
Correspondent Clearing transactions necessary to accommodate the
clearing of fractional shares. NSCC did not consider fractional share
trading programs or the clearing of fractional shares when it adopted
its Real-time Trade Submission Requirement rules and subsequently
amended those rules to address the Correspondent Clearing service.\15\
As a result, NSCC proposes to revise Section 7 of NSCC Rule 7 to allow
an additional exception from the Real-time Trade Submission Requirement
for Correspondent Clearing transactions that represent aggregated
transactions of fractional shares. In addition, NSCC would revise
Section 7 of NSCC Rule 7 to include a requirement that trade data
representing aggregated transactions of fractional shares must be
submitted to NSCC for trade recording in units of full shares and
should be submitted as promptly as reasonably practical. NSCC also
proposes to make conforming changes to Section A of Procedure II to
include trade data representing aggregated transactions of fractional
shares in the list of exceptions for the Real-time Trade Submission
Requirement.
---------------------------------------------------------------------------
\15\ See e.g., Securities Exchange Act Release Nos. 69890 (June
28, 2013), 78 FR 40538 (July 5, 2013) (File No. SR-NSCC-2013-05) and
76462 (Nov. 17, 2015), 80 FR 73029 (Nov. 23, 2015) (SR-NSCC-2015-
004).
---------------------------------------------------------------------------
The proposed rule change would not require NSCC to make any changes
to its current operational and risk management processes. As described
above, NSCC would continue to receive all transactions in units of full
shares, and from an operational perspective, transactions from
fractional share trading programs would be recorded and processed in
the same manner as
[[Page 73147]]
any other transaction submitted for clearing. NSCC also does not
believe that clearing transactions from fractional share trading
programs would require any changes to its risk management processes.
While the Correspondent Clearing portion of such transactions would not
be subject to the Real-time Trade Submission Requirement, these
transactions are not expected to constitute a significant volume of
trades relative to NSCC's total cleared transaction volumes.
Transactions from fractional share trading programs would be subject to
the same margining and risk management practices as other equity
transactions upon trade recording and validation by NSCC, and NSCC does
not currently plan to make any changes to its risk management processes
in relation to the clearing of the aggregated shares received from
fractional share trading programs. NSCC believes that the benefits of
bringing these transactions into central clearing (e.g., their
inclusion in Continuous Net Settlement (``CNS'') netting, NSCC risk
management and NSCC's trade guaranty) would justify the exception for
such transactions from the Real-time Trade Submission Requirement. As
noted above, NSCC currently permits other exceptions to the Real-time
Trade Submission Requirement for Correspondent Clearing transactions,
such as trade data submitted to facilitate a position movement between
affiliates or between two unaffiliated clearing brokers on behalf of a
common client for custody purposes and transaction data concerning
creation and redemption orders for exchange-traded funds.\16\
---------------------------------------------------------------------------
\16\ See supra note 13 and associated text.
---------------------------------------------------------------------------
2. Statutory Basis
NSCC believes the proposed rule change is consistent with the
requirements of the Act and the rules and regulations thereunder
applicable to a registered clearing agency. Section 17A(b)(3)(F) of the
Act \17\ requires that the rules of a clearing agency are designed to
promote the prompt and accurate clearance and settlement of securities
transactions, assure the safeguarding of securities and funds which are
in the custody or control of the clearing agency or for which it is
responsible, and remove impediments to and perfect the mechanism of a
national system for the prompt and accurate clearance and settlement of
securities transactions.
---------------------------------------------------------------------------
\17\ 15 U.S.C. 78q-1(b)(3)(F).
---------------------------------------------------------------------------
The proposed rule change would provide an additional exception from
the Real-time Trade Submission Requirement for Correspondent Clearing
transactions representing aggregated transactions of fractional shares,
thereby allowing broker-dealers offering or participating in fractional
share trading programs to submit these fractional shares, on a rounded
and aggregated basis, to NSCC for clearance and settlement. The
proposed rule change would not require NSCC to make any changes to its
current operational and risk management processes and would enable the
prompt and accurate clearance and settlement of such transactions. The
proposed rule change would require such transactions to be submitted
for trade recording in units of full shares and as promptly as
reasonably practical. Moreover, the proposed rule change would extend
the benefit of CNS netting, NSCC's risk management and margining
practices, and NSCC's trade guaranty to these fractional shares,
thereby safeguarding the securities and funds associated with such
transactions. For these reasons, NSCC believes the proposed rule change
would promote the prompt and accurate clearance and settlement of
securities transactions, assure the safeguarding of securities and
funds which are in the custody or control of the clearing agency or for
which it is responsible, and remove impediments to and perfect the
mechanism of a national system for the prompt and accurate clearance
and settlement of securities transactions in accordance with Section
17A(b)(3)(F) of the Act.\18\
---------------------------------------------------------------------------
\18\ Id.
---------------------------------------------------------------------------
(B) Clearing Agency's Statement on Burden on Competition
Section 17A(b)(3)(I) of the Act \19\ requires that the rules of the
clearing agency do not impose any burden on competition not necessary
or appropriate in furtherance of the Act. NSCC does not believe the
proposed rule change would have any impact or burden on competition.
The proposed rule change would provide an exception to the Real-time
Trade Submission Requirement for fractional shares and require that
such transactions be submitted to NSCC in aggregated units of full
shares as promptly as reasonably practical. The proposed rule change
would apply to all Members equally and would not otherwise impose any
requirements on the manner in which Members operate their fractional
shares programs. Moreover, NSCC would clear and risk manage these
aggregated shares in the same way as other trades submitted for trade
recording and clearing. The proposed rule change would not unfairly
inhibit access to NSCC's services by any Member or advantage or
disadvantage one Member in relationship to another. NSCC therefore
believes the proposed rule change would not have any impact or burden
on competition.
---------------------------------------------------------------------------
\19\ 15 U.S.C. 78q-1(b)(3)(I).
---------------------------------------------------------------------------
(C) Clearing Agency's Statement on Comments on the Proposed Rule Change
Received From Members, Participants, or Others
NSCC has not received or solicited any written comments relating to
this proposal. If any written comments are received by NSCC, they will
be publicly filed as an Exhibit 2 to this filing, as required by Form
19b-4 and the General Instructions thereto.
Persons submitting comments are cautioned that, according to
Section IV (Solicitation of Comments) of the Exhibit 1A in the General
Instructions to Form 19b-4, the Commission does not edit personal
identifying information from comment submissions. Commenters should
submit only information that they wish to make available publicly,
including their name, email address, and any other identifying
information.
All prospective commenters should follow the Commission's
instructions on how to submit comments, available at https://www.sec.gov/regulatory-actions/how-to-submit-comments. General
questions regarding the rule filing process or logistical questions
regarding this filing should be directed to the Main Office of the
Commission's Division of Trading and Markets at
[email protected] or 202-551-5777.
NSCC reserves the right not to respond to any comments received.
III. Date of Effectiveness of the Proposed Rule Change, and Timing for
Commission Action
Because the foregoing proposed rule change does not:
(i) significantly affect the protection of investors or the public
interest;
(ii) impose any significant burden on competition; and
(iii) become operative for 30 days from the date on which it was
filed, or such shorter time as the Commission may designate, it has
become effective pursuant to Section 19(b)(3)(A) of the Act and Rule
19b-4(f)(6) thereunder.
At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
[[Page 73148]]
IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
file number SR-NSCC-2024-007 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549.
All submissions should refer to file number SR-NSCC-2024-007. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549 on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of NSCC and on DTCC's
website (dtcc.com/legal/sec-rule-filings). Do not include personal
identifiable information in submissions; you should submit only
information that you wish to make available publicly. We may redact in
part or withhold entirely from publication submitted material that is
obscene or subject to copyright protection. All submissions should
refer to File Number SR-NSCC-2024-007 and should be submitted on or
before September 30, 2024.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\20\
---------------------------------------------------------------------------
\20\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Vanessa A. Countryman,
Secretary.
[FR Doc. 2024-20170 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:24.574768 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20170.htm"
} |
FR | FR-2024-09-09/2024-20171 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20171]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-100900; File No. SR-PEARL-2024-02]
Self-Regulatory Organizations; MIAX PEARL LLC; Notice of
Withdrawal of Proposed Rule Change To Establish Fees for Industry
Members Related to Certain Historical Costs of the National Market
System Plan Governing the Consolidated Audit Trail
September 3, 2024.
On January 2, 2024, MIAX PEARL LLC (the ``Exchange'') filed with
the Securities and Exchange Commission (the ``Commission''), pursuant
to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'')
\1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to establish
fees for industry members related to certain historical costs of the
National Market System plan governing the Consolidated Audit Trail. The
proposed rule change was immediately effective upon filing with the
Commission pursuant to Section 19(b)(3)(A) of the Act.\3\ On February
13, 2024, the proposed rule change was published in the Federal
Register and the Commission temporarily suspended and instituted
proceedings to determine whether to approve or disapprove the proposed
rule change.\4\ The Commission received six comments on the proposed
rule change and one response to those comments.\5\ On July 31, 2024,
pursuant to Section 19(b)(2) of the Act,\6\ the Commission designated a
longer period within which to approve the proposed rule change or
disapprove the proposed rule change.\7\ On August 23, 2024, the
Exchange withdrew the proposed rule change (SR-PEARL-2024-02).
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A). A proposed rule change may take
effect upon filing with the Commission if it is designated by the
exchange as ``establishing or changing a due, fee, or other charge
imposed by the self-regulatory organization on any person, whether
or not the person is a member of the self-regulatory organization.''
15 U.S.C. 78s(b)(3)(A)(ii).
\4\ Securities Exchange Act Release No. 99382 (January 17,
2024), 89 FR 10658 (February 13, 2024).
\5\ See letters from: Edward Weisbaum, Executing Broker CBOE
Floor, dated February 6, 2024; Howard Meyerson, Managing Director,
Financial Information Forum, to Vanessa Countryman, Secretary,
Commission, dated March 4, 2024; Thomas M. Merritt, Deputy General
Counsel, Virtu Financial, Inc., to Vanessa Countryman, Secretary,
Commission, dated March 5, 2024; Ellen Greene, Managing Director,
Equities & Options Market Structure, SIFMA; Joseph Corcoran,
Managing Director, Associate General Counsel, SIFMA, to Vanessa
Countryman, Secretary, Commission, dated March 5, 2024; Stephen John
Berger, Managing Director, Global Head of Government & Regulatory
Policy, Citadel Securities, to Vanessa Countryman, Secretary,
Commission, dated March 5, 2024; Joanna Mallers, Secretary, FIA
Principal Traders Group, to Vanessa Countryman, Secretary,
Commission, dated March 9, 2024; and Brandon Becker, CAT NMS Plan
Operating Committee Chair, to Vanessa Countryman, Secretary,
Commission, dated June 13, 2024.
\6\ 15 U.S.C. 78s(b)(2).
\7\ See Securities Exchange Act Release No. 100628 (Jul. 31,
2024), 89 FR 64010 (Aug. 6, 2024). The Commission designated October
10, 2024 as the date by it should approve or disapprove the proposed
rule change.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\8\
---------------------------------------------------------------------------
\8\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-20171 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:24.651159 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20171.htm"
} |
FR | FR-2024-09-09/2024-20166 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73148-73149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20166]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-100893; File No. SR-Emerald-2024-01]
Self-Regulatory Organizations; MIAX Emerald, LLC; Notice of
Withdrawal of Proposed Rule Change To Establish Fees for Industry
Members Related to Certain Historical Costs of the National Market
System Plan Governing the Consolidated Audit Trail
September 3, 2024.
On January 2, 2024, MIAX Emerald, LLC (the ``Exchange'') filed with
the Securities and Exchange Commission (the ``Commission''), pursuant
to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'')
\1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to establish
fees for industry members related to certain historical costs of the
National Market System plan governing the Consolidated Audit Trail. The
proposed rule change was immediately effective upon filing with the
Commission pursuant to Section 19(b)(3)(A) of the Act.\3\ On February
13, 2024, the proposed rule change was
[[Page 73149]]
published in the Federal Register and the Commission temporarily
suspended and instituted proceedings to determine whether to approve or
disapprove the proposed rule change.\4\ The Commission received six
comments on the proposed rule change and one response to those
comments.\5\ On July 31, 2024, pursuant to Section 19(b)(2) of the
Act,\6\ the Commission designated a longer period within which to
approve the proposed rule change or disapprove the proposed rule
change.\7\ On August 23, 2024, the Exchange withdrew the proposed rule
change (SR-Emerald-2024-01).
---------------------------------------------------------------------------
\1\ 15 U.S.C.78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A). A proposed rule change may take
effect upon filing with the Commission if it is designated by the
exchange as ``establishing or changing a due, fee, or other charge
imposed by the self-regulatory organization on any person, whether
or not the person is a member of the self-regulatory organization.''
15 U.S.C. 78s(b)(3)(A)(ii).
\4\ Securities Exchange Act Release No. 99373 (January 17,
2024), 89 FR 11001 (February 13, 2024).
\5\ See letters from: Edward Weisbaum, Executing Broker CBOE
Floor, dated February 6, 2024; Howard Meyerson, Managing Director,
Financial Information Forum, to Vanessa Countryman, Secretary,
Commission, dated March 4, 2024; Thomas M. Merritt, Deputy General
Counsel, Virtu Financial, Inc., to Vanessa Countryman, Secretary,
Commission, dated March 5, 2024; Ellen Greene, Managing Director,
Equities & Options Market Structure, SIFMA; Joseph Corcoran,
Managing Director, Associate General Counsel, SIFMA, to Vanessa
Countryman, Secretary, Commission, dated March 5, 2024; Stephen John
Berger, Managing Director, Global Head of Government & Regulatory
Policy, Citadel Securities, to Vanessa Countryman, Secretary,
Commission, dated March 5, 2024; Joanna Mallers, Secretary, FIA
Principal Traders Group, to Vanessa Countryman, Secretary,
Commission, dated March 9, 2024; and Brandon Becker, CAT NMS Plan
Operating Committee Chair, to Vanessa Countryman, Secretary,
Commission, dated June 13, 2024.
\6\ 15 U.S.C. 78s(b)(2).
\7\ See Securities Exchange Act Release No. 100628 (Jul. 31,
2024), 89 FR 64010 (Aug. 6, 2024). The Commission designated October
10, 2024 as the date by it should approve or disapprove the proposed
rule change.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\8\
---------------------------------------------------------------------------
\8\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-20166 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:24.735944 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20166.htm"
} |
FR | FR-2024-09-09/2024-20167 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20167]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-100894; File No. SR-MIAX-2024-02]
Self-Regulatory Organizations; Miami International Securities
Exchange, LLC; Notice of Withdrawal of Proposed Rule Change To
Establish Fees for Industry Members Related to Certain Historical Costs
of the National Market System Plan Governing the Consolidated Audit
Trail
September 3, 2024.
On January 2, 2024, Miami International Securities Exchange, LLC
(the ``Exchange'') filed with the Securities and Exchange Commission
(the ``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to establish fees for industry members related to
certain historical costs of the National Market System plan governing
the Consolidated Audit Trail. The proposed rule change was immediately
effective upon filing with the Commission pursuant to Section
19(b)(3)(A) of the Act.\3\ On February 13, 2024, the proposed rule
change was published in the Federal Register and the Commission
temporarily suspended and instituted proceedings to determine whether
to approve or disapprove the proposed rule change.\4\ The Commission
received six comments on the proposed rule change and one response to
those comments.\5\ On July 31, 2024, pursuant to Section 19(b)(2) of
the Act,\6\ the Commission designated a longer period within which to
approve the proposed rule change or disapprove the proposed rule
change.\7\ On August 23, 2024, the Exchange withdrew the proposed rule
change (SR-MIAX-2024-02).
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A). A proposed rule change may take
effect upon filing with the Commission if it is designated by the
exchange as ``establishing or changing a due, fee, or other charge
imposed by the self-regulatory organization on any person, whether
or not the person is a member of the self-regulatory organization.''
15 U.S.C. 78s(b)(3)(A)(ii).
\4\ Securities Exchange Act Release No. 99367 (January 17,
2024), 89 FR 10925 (February 13, 2024).
\5\ See letters from: Edward Weisbaum, Executing Broker CBOE
Floor, dated February 6, 2024; Howard Meyerson, Managing Director,
Financial Information Forum, to Vanessa Countryman, Secretary,
Commission, dated March 4, 2024; Thomas M. Merritt, Deputy General
Counsel, Virtu Financial, Inc., to Vanessa Countryman, Secretary,
Commission, dated March 5, 2024; Ellen Greene, Managing Director,
Equities & Options Market Structure, SIFMA; Joseph Corcoran,
Managing Director, Associate General Counsel, SIFMA, to Vanessa
Countryman, Secretary, Commission, dated March 5, 2024; Stephen John
Berger, Managing Director, Global Head of Government & Regulatory
Policy, Citadel Securities, to Vanessa Countryman, Secretary,
Commission, dated March 5, 2024; Joanna Mallers, Secretary, FIA
Principal Traders Group, to Vanessa Countryman, Secretary,
Commission, dated March 9, 2024; and Brandon Becker, CAT NMS Plan
Operating Committee Chair, to Vanessa Countryman, Secretary,
Commission, dated June 13, 2024.
\6\ 15 U.S.C. 78s(b)(2).
\7\ See Securities Exchange Act Release No. 100628 (Jul. 31,
2024), 89 FR 64010 (Aug. 6, 2024). The Commission designated October
10, 2024 as the date by it should approve or disapprove the proposed
rule change.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\8\
---------------------------------------------------------------------------
\8\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-20167 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:24.851586 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20167.htm"
} |
FR | FR-2024-09-09/2024-20373 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73149-73150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20373]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Sunshine Act Meetings
TIME AND DATE: 2:00 p.m. on Thursday, September 12, 2024.
PLACE: The meeting will be held via remote means and/or at the
Commission's headquarters, 100 F Street NE, Washington, DC 20549.
STATUS: This meeting will be closed to the public.
MATTERS TO BE CONSIDERED: Commissioners, Counsel to the Commissioners,
the Secretary to the Commission, and recording secretaries will attend
the closed meeting. Certain staff members who have an interest in the
matters also may be present.
In the event that the time, date, or location of this meeting
changes, an announcement of the change, along with the new time, date,
and/or place of the meeting will be posted on the Commission's website
at https://www.sec.gov.
The General Counsel of the Commission, or her designee, has
certified that, in her opinion, one or more of the exemptions set forth
in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR
200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10),
permit consideration of the scheduled matters at the closed meeting.
The subject matter of the closed meeting will consist of the
following topics:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to examinations and enforcement
proceedings.
At times, changes in Commission priorities require alterations in
the scheduling of meeting agenda items that may consist of
adjudicatory, examination, litigation, or regulatory matters.
CONTACT PERSON FOR MORE INFORMATION: For further information, please
contact Vanessa A. Countryman from the Office of the Secretary at (202)
551-5400.
Authority: 5 U.S.C. 552b.
[[Page 73150]]
Dated: September 5, 2024.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2024-20373 Filed 9-5-24; 11:15 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:24.878923 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20373.htm"
} |
FR | FR-2024-09-09/2024-20200 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20200]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[SEC File No. 270-392, OMB Control No. 3235-0447]
Proposed Collection; Comment Request; Extension: Rule 17f-6
Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of FOIA Services, 100 F Street NE, Washington, DC
20549-2736
Notice is hereby given that, pursuant to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange
Commission (the ``Commission'') is soliciting comments on the
collection of information summarized below. The Commission plans to
submit this existing collection of information to the Office of
Management and Budget for extension and approval.
Rule 17f-6 (17 CFR 270.17f-6) under the Investment Company Act of
1940 (15 U.S.C. 80a) permits registered investment companies
(``funds'') to maintain assets (i.e., margin) with futures commission
merchants (``FCMs'') in connection with commodity transactions effected
on both domestic and foreign exchanges. Before the rule was adopted,
funds generally were required to maintain these assets in special
accounts with a custodian bank.
The rule requires a written contract that contains certain
provisions designed to ensure important safeguards and other benefits
relating to the custody of fund assets by FCMs. To protect fund assets,
the contract must require that FCMs comply with the segregation or
secured amount requirements of the Commodity Exchange Act (``CEA'') and
the rules under that statute. The contract also must contain a
requirement that FCMs obtain an acknowledgment from any clearing
organization that the fund's assets are held on behalf of the FCM's
customers according to CEA provisions.
Because rule 17f-6 does not impose any ongoing obligations on funds
or FCMs, Commission staff estimates there are only costs related to new
contracts between funds and FCMs. This estimate does not include the
time required by an FCM to comply with the rule's contract requirements
because, to the extent that complying with the contract provisions
could be considered ``collections of information,'' the burden hours
for compliance are already included in other PRA submissions.\1\
Commission staff estimates that approximately 1,164 series of 151 funds
report that futures commission merchants and commodity clearing
organizations provide custodial services to the fund.\2\ Based on these
estimates, the total annual burden hours associated with rule 17f-6 is
27 hours. The estimated total annual burden hours associated with rule
17f-6 have decreased 1 hour, from 28 to 27 hours and external costs
increased from $11,900 to $15,534. These changes in burden hours and
external costs reflect changes in the number of affected entities and
in the external cost associated with the information collection
requirements. These changes reflect revised estimates.
---------------------------------------------------------------------------
\1\ The rule requires a contract with the FCM to contain two
provisions requiring the FCM to comply with existing requirements
under the CEA and rules adopted thereunder; thus, to the extent
these provisions could be considered collections of information, the
hours required for compliance would be included in the collection of
information burden hours submitted by the CFTC for its rules.
\2\ This estimate is based on the average number of funds that
reported on Form N-CEN from April 2021-March 2024, in response to
sub-items C.12.6. and D.14.6; money market funds are excluded from
this estimate because exchange-traded futures contracts or commodity
options are not eligible securities for money market funds; the
number of series and funds that reported on Form N-CEN in response
these sub-items were: 1,112 series of 150 funds for the period April
2021-March 2022; 1,180 series of 152 funds for the period April
2022-March 2023; and 1,210 series of 151 funds for the period April
2023-March 2024 (for filings received through June 30, 2024).
---------------------------------------------------------------------------
These estimates are made solely for the purposes of the Paperwork
Reduction Act, and are not derived from a comprehensive or even a
representative survey or study of the costs of Commission rules and
forms.
Compliance with the collection of information requirements of the
rule is necessary to obtain the benefit of relying on the rule. 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 control number.
Written comments are invited on: (a) whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
estimate of the burden of the collection of information; (c) ways to
enhance the quality, utility, and clarity of the information collected;
and (d) ways to minimize the burden of the collection of information on
respondents, including through the use of automated collection
techniques or other forms of information technology. Consideration will
be given to comments and suggestions submitted by November 8, 2024.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information under the PRA unless it
displays a currently valid OMB control number.
Please direct your written comments to: Austin Gerig, Director/
Chief Data Officer, Securities and Exchange Commission, c/o Oluwaseun
Ajayi, 100 F Street NE, Washington, DC 20549 or send an email to:
[email protected].
Dated: September 3, 2024.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2024-20200 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:24.939536 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20200.htm"
} |
FR | FR-2024-09-09/2024-20165 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73150-73173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20165]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-100892; File No. SR-LTSE-2024-04]
Self-Regulatory Organizations: Long-Term Stock Exchange, Inc.;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Establish Fees for Industry Members Related to Reasonably Budgeted
Costs of the National Market System Plan Governing the Consolidated
Audit Trail for the Period From July 16, 2024 Through December 31, 2024
September 3, 2024.
Pursuant to Section 19(b)(1) under the Securities Exchange Act of
1934 (the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby
given that on August 28, 2024, Long-Term Stock Exchange, Inc. (``LTSE''
or the ``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange is filing with the Commission a proposed rule change
to amend the Fee Schedule to establish fees for Industry Members \3\
related to
[[Page 73151]]
reasonably budgeted CAT costs of the National Market System Plan
Governing the Consolidated Audit Trail (the ``CAT NMS Plan'' or
``Plan'') for the period from July 16, 2024, through December 31, 2024.
The text of the proposed rule change is available at the Exchange's
website at https://longtermstockexchange.com/, at the principal office
of the Exchange, and at the Commission's Public Reference Room.
---------------------------------------------------------------------------
\3\ An ``Industry Member'' is defined as ``a member of a
national securities exchange or a member of a national securities
association.'' See LTSE Rule 11.610 (Consolidated Audit Trail--
Definitions). See also Section 1.1 of the CAT NMS Plan. Unless
otherwise specified, capitalized terms used in this rule filing are
defined as set forth in the CAT NMS Plan and/or the CAT Compliance
Rule. See LTSE Rule Series 11.600 (Consolidated Audit Trail
Compliance Rule).
---------------------------------------------------------------------------
II. Self-Regulatory Organization's Statement on the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The self-regulatory organization has prepared summaries,
set forth in Sections A, B, and C below, of the most significant
aspects of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
On July 11, 2012, the Commission adopted Rule 613 of Regulation
NMS, which required the self-regulatory organizations (``SROs'') to
submit a national market system (``NMS'') plan to create, implement and
maintain a consolidated audit trail that would capture customer and
order event information for orders in NMS securities across all
markets, from the time of order inception through routing,
cancellation, modification or execution.\4\ On November 15, 2016, the
Commission approved the CAT NMS Plan.\5\ Under the CAT NMS Plan, the
Operating Committee has the discretion to establish funding for CAT LLC
to operate the CAT, including establishing fees for Industry Members to
be assessed by CAT LLC that would be implemented on behalf of CAT LLC
by the Participants.\6\ The Operating Committee adopted a revised
funding model to fund the CAT (``CAT Funding Model''). On September 6,
2023, the Commission approved the CAT Funding Model after concluding
that the model was reasonable and that it satisfied the requirements of
Section 11A of the Exchange Act and Rule 608 thereunder.\7\
---------------------------------------------------------------------------
\4\ Securities Exchange Act Rel. No. 67457 (July 18, 2012), 77
FR 45722 (Aug. 1, 2012).
\5\ Securities Exchange Act Rel. No. 79318 (Nov. 15, 2016), 81
FR 84696 (Nov. 23, 2016) (``CAT NMS Plan Approval Order'').
\6\ Section 11.1(b) of the CAT NMS Plan.
\7\ Securities Exchange Act Rel. No. 98290 (Sept. 6, 2023), 88
FR 62628 (Sept. 12, 2023) (``CAT Funding Model Approval Order'').
---------------------------------------------------------------------------
The CAT Funding Model provides a framework for the recovery of the
costs to create, develop and maintain the CAT, including providing a
method for allocating costs to fund the CAT among Participants and
Industry Members. The CAT Funding Model establishes two categories of
fees: (1) CAT fees assessed by CAT LLC and payable by certain Industry
Members to recover a portion of historical CAT costs previously paid by
the Participants (``Historical CAT Assessment'' fees); and (2) CAT fees
assessed by CAT LLC and payable by Participants and Industry Members to
fund prospective CAT costs (``CAT Fees'').\8\
---------------------------------------------------------------------------
\8\ Under the CAT Funding Model, the Operating Committee may
establish CAT Fees related to CAT costs going forward. Section
11.3(a) of the CAT NMS Plan. This filing only establishes CAT Fee
2024-1 related to reasonably budgeted CAT costs for the period from
July 16, 2024 through December 31, 2024 as described herein; it does
not address any other potential CAT Fees related to CAT costs. Any
such other CAT Fee will be subject to a separate fee filing. In
addition, under the CAT Funding Model, the Operating Committee may
establish one or more Historical CAT Assessments. Section 11.3(b) of
the CAT NMS Plan. This filing does not address any Historical CAT
Assessments.
---------------------------------------------------------------------------
Under the CAT Funding Model, Participants, CEBBs and CEBSs are
subject to fees designed to cover the ongoing budgeted costs of the
CAT, as determined by the Operating Committee. ``The Operating
Committee will establish fees (`CAT Fees') to be payable by
Participants and Industry Members with regard to CAT costs not
previously paid by the Participants (`Prospective CAT Costs').'' \9\ In
establishing a CAT Fee, the Operating Committee will calculate a ``Fee
Rate'' for the relevant period. Then, for each month in which a CAT Fee
is in effect, each CEBB and CEBS would be required to pay the fee for
each transaction in Eligible Securities executed by the CEBB or CEBS
from the prior month as set forth in CAT Data, where the fee for each
transaction will be calculated by multiplying the number of executed
equivalent shares in the transaction by one-third and by the Fee
Rate.\10\
---------------------------------------------------------------------------
\9\ Section 11.3(a) of the CAT NMS Plan.
\10\ In approving the CAT Funding Model, the Commission stated
that, ``[t]he proposed recovery of Prospective CAT Costs is
appropriate.'' CAT Funding Model Approval Order at 62651.
---------------------------------------------------------------------------
The CAT Fees to be paid by CEBBs and CEBSs are designed to
contribute toward the recovery of two-thirds of the budgeted CAT costs
for the relevant period.\11\ The CAT Funding Model is designed to
require that the Participants contribute to the recovery of the
remaining one-third of the budgeted CAT costs.\12\ Participants would
be subject to the same Fee Rate as CEBBs and CEBSs.\13\ While CAT Fees
charged to Industry Members become effective in accordance with the
requirements of Section 19(b) of the Exchange Act,\14\ CAT fees charged
to Participants are implemented via an approval of the CAT fees by the
Operating Committee in accordance with the requirements of the CAT NMS
Plan.\15\ Accordingly, this filing does not address Participant CAT
fees as they are described in the CAT NMS Plan.\16\
---------------------------------------------------------------------------
\11\ Section 11.3(a)(iii)(A) of the CAT NMS Plan.
\12\ Section 11.3(a)(ii)(A) of the CAT NMS Plan.
\13\ Section 11.3(a)(ii) of the CAT NMS Plan.
\14\ Section 11.3(a)(i)(A)(I) of the CAT NMS Plan.
\15\ CAT Funding Model Approval Order at 62659.
\16\ See Section 11.3(a)(ii) and Appendix B of the CAT NMS Plan.
---------------------------------------------------------------------------
CAT LLC proposes to charge CEBBs and CEBSs (as described in more
detail below) CAT Fee 2024-1 to recover the reasonably budgeted CAT
costs for July 16, 2024 through December 31, 2024, in accordance with
the CAT Funding Model. To implement this fee on behalf of CAT LLC, the
CAT NMS Plan requires the Participants to ``file with the SEC under
Section 19(b) of the Exchange Act any such fees on Industry Members
that the Operating Committee approves, and such fees shall be labeled
as `Consolidated Audit Trail Funding Fees.' '' \17\ The Plan further
states that ``[o]nce the Operating Committee has approved such Fee
Rate, the Participants shall be required to file with the SEC pursuant
to Section 19(b) of the Exchange Act CAT Fees to be charged to Industry
Members calculated using such Fee Rate.'' \18\ Accordingly, the purpose
of this filing is to implement a CAT Fee on behalf of CAT LLC for
Industry Members, referred to as CAT Fee 2024-1, in accordance with the
CAT NMS Plan.
---------------------------------------------------------------------------
\17\ Section 11.1(b) of the CAT NMS Plan.
\18\ Section 11.3(a)(i)(A)(I) of the CAT NMS Plan.
---------------------------------------------------------------------------
(1) CAT Executing Brokers
CAT Fee 2024-1 will be charged to each CEBB and CEBS for each
applicable transaction in Eligible Securities.\19\ The CAT NMS Plan
defines a ``CAT Executing Broker'' to mean:
---------------------------------------------------------------------------
\19\ In its approval of the CAT Funding Model, the Commission
determined that charging CAT fees to CAT Executing Brokers was
reasonable. In reaching this conclusion, the Commission noted that
the use of CAT Executing Brokers is appropriate because the CAT
Funding Model is based upon the calculation of executed equivalent
shares, and, therefore, charging CAT Executing Brokers would reflect
their executing role in each transaction. Furthermore, the
Commission noted that, because CAT Executing Brokers are already
identified in transaction reports from the exchanges and FINRA's
equity trade reporting facilities recorded in CAT Data, charging CAT
Executing Brokers could streamline the billing process. CAT Funding
Model Approval Order at 62629.
[[Page 73152]]
---------------------------------------------------------------------------
(a) with respect to a transaction in an Eligible Security that
is executed on an exchange, the Industry Member identified as the
Industry Member responsible for the order on the buy-side of the
transaction and the Industry Member responsible for the sell-side of
the transaction in the equity order trade event and option trade
event in the CAT Data submitted to the CAT by the relevant exchange
pursuant to the Participant Technical Specifications; and (b) with
respect to a transaction in an Eligible Security that is executed
otherwise than on an exchange and required to be reported to an
equity trade reporting facility of a registered national securities
association, the Industry Member identified as the executing broker
and the Industry Member identified as the contra-side executing
broker in the TRF/ORF/ADF transaction data event in the CAT Data
submitted to the CAT by FINRA pursuant to the Participant Technical
Specifications; provided, however, in those circumstances where
there is a non-Industry Member identified as the contra-side
executing broker in the TRF/ORF/ADF transaction data event or no
contra-side executing broker is identified in the TRF/ORF/ADF
transaction data event, then the Industry Member identified as the
executing broker in the TRF/ORF/ADF transaction data event would be
treated as CAT Executing Broker for the Buyer and for the
Seller.\20\
---------------------------------------------------------------------------
\20\ Section 1.1 of the CAT NMS Plan. Note that CEBBs and CEBSs
may, but are not required to, pass-through their CAT Fees to their
clients, who may, in turn, pass their fees to their clients until
they are imposed ultimately on the account that executed the
transaction. See CAT Funding Model Approval Order at 62649.
---------------------------------------------------------------------------
The following fields of the Participant Technical Specifications
indicate the CAT Executing Brokers for the transactions executed on an
exchange:
---------------------------------------------------------------------------
\21\ See Table 23, Section 4.7 (Order Trade Event) of the CAT
Reporting Technical Specifications for Plan Participants, Version
4.1.0-r21 (Apr. 15, 2024), https://www.catnmsplan.com/sites/default/files/2024-04/04.15.2024-CAT_Reporting_Technical_Specifications_for_Participants_4.1.0-r21.pdf (``CAT Reporting Technical Specifications for Plan
Participants'').
\22\ See Table 51, Section 5.2.5.1 (Simple Option Trade Event)
of the CAT Reporting Technical Specifications for Plan Participants.
Equity Order Trade (EOT) \21\
----------------------------------------------------------------------------------------------------------------
No. Field name Data type Description Include key
----------------------------------------------------------------------------------------------------------------
12.n.8/13.n.8......... member............................ Member Alias........ The identifier C.
for the member
firm that is
responsible for
the order on
this side of the
trade. Not
required if
there is no
order for the
side as
indicated by the
NOBUYID/NOSELLID
instruction.
This must be
provided if
orderID is
provided..
----------------------------------------------------------------------------------------------------------------
Option Trade (OT) \22\
----------------------------------------------------------------------------------------------------------------
No. Field name Data type Description Include key
----------------------------------------------------------------------------------------------------------------
16.n.13/17.n.13....... member............................ Member Alias........ The identifier R.
for the member
firm that is
responsible for
the order.
----------------------------------------------------------------------------------------------------------------
In addition, the following fields of the Participant Technical
Specifications would indicate the CAT Executing Brokers for the
transactions executed otherwise than on an exchange:
---------------------------------------------------------------------------
\23\ See Table 61, Section 6.1 (TRF/ORF/ADF Transaction Data
Event) of the CAT Reporting Technical Specifications for Plan
Participants.
TRF/ORF/ADF Transaction Data Event (TRF) \23\
----------------------------------------------------------------------------------------------------------------
No. Field name Data type Description Include key
----------------------------------------------------------------------------------------------------------------
26.................... reportingExecutingMpid............ Member Alias........ MPID of the R.
executing party.
28.................... contraExecutingMpid............... Member Alias........ MPID of the C.
contra-side
executing party.
----------------------------------------------------------------------------------------------------------------
(2) Calculation of Fee Rate 2024-1
The Operating Committee determined the Fee Rate to be used in
calculating CAT Fee 2024-1 (``Fee Rate 2024-1'') by dividing the
reasonably budgeted CAT costs (``Budgeted CAT Costs 2024-1'') for the
period from July 16, 2024 through December 31, 2024 (``CAT Fee 2024-1
Period'') by the reasonably projected total executed share volume of
all transactions in Eligible Securities for the four-month recovery
period, as discussed in detail below.\24\ Based on this calculation,
the Operating Committee has determined that Fee Rate 2024-1 would be
$0.0001043598251997246 per executed equivalent share. This rate is then
divided by three and rounded to determine the fee rate of $0.000035 per
executed equivalent share that will be assessed to CEBBs and CEBSs, as
also discussed in detail below.
---------------------------------------------------------------------------
\24\ Section 11.3(a)(i) of the CAT NMS Plan.
---------------------------------------------------------------------------
(A) CAT Fee 2024-1 Period
CAT LLC proposes to implement CAT Fee 2024-1 as the first CAT Fee
related to Prospective CAT Costs. CAT LLC proposes to commence CAT Fee
2024-1 during the year, rather than at the beginning of the year.
Accordingly, CAT Fee 2024-1 ``would be calculated as described in
paragraph II'' of Section 11.3(a)(i)(A) of the CAT NMS Plan, which
states that ``[d]uring each year, the Operating Committee will
calculate a new Fee Rate by dividing the reasonably budgeted CAT costs
for the remainder of the year by the reasonably projected total
executed equivalent share volume of all transactions in Eligible
Securities for the remainder of
[[Page 73153]]
the year.'' \25\ For CAT Fee 2024-1, the reasonably budgeted CAT costs
for ``the remainder of the year'' are the reasonably budgeted CAT costs
from July 16, 2024 through December 31, 2024. This period is referred
to as the CAT Fee 2024-1 Period. Such costs would be recovered over a
four-month period, where the first invoices are sent in October 2024
based on transactions in September 2024.
---------------------------------------------------------------------------
\25\ Section 11.3(a)(i)(A)(II) of the CAT NMS Plan.
---------------------------------------------------------------------------
(B) Executed Equivalent Shares for Transactions in Eligible Securities
Under the CAT NMS Plan, for purposes of calculating CAT Fees,
executed equivalent shares in a transaction in Eligible Securities will
be reasonably counted as follows: (1) each executed share for a
transaction in NMS Stocks will be counted as one executed equivalent
share; (2) each executed contract for a transaction in Listed Options
will be counted based on the multiplier applicable to the specific
Listed Options (i.e., 100 executed equivalent shares or such other
applicable multiplier); and (3) each executed share for a transaction
in OTC Equity Securities will be counted as 0.01 executed equivalent
share.\26\
---------------------------------------------------------------------------
\26\ Section 11.3(a)(i)(B) of the CAT NMS Plan. In approving the
CAT Funding Model, the Commission concluded that ``the use of
executed equivalent share volume as the basis of the proposed cost
allocation methodology is reasonable and consistent with the
approach taken by the funding principles of the CAT NMS Plan.'' CAT
Funding Model Approval Order at 62640.
---------------------------------------------------------------------------
(C) Budgeted CAT Costs 2024-1
The CAT NMS Plan states that ``[t]he budgeted CAT costs for the
year shall be comprised of all reasonable fees, costs and expenses
reasonably budgeted to be incurred by or for the Company in connection
with the development, implementation and operation of the CAT as set
forth in the annual operating budget approved by the Operating
Committee pursuant to Section 11.1(a) of the CAT NMS Plan, or as
adjusted during the year by the Operating Committee.'' \27\ Section
11.1(a) of the CAT NMS Plan describes the requirement for the Operating
Committee to approve an operating budget for CAT LLC on an annual
basis. It requires the budget to ``include the projected costs of the
Company, including the costs of developing and operating the CAT for
the upcoming year, and the sources of all revenues to cover such costs,
as well as the funding of any reserve that the Operating Committee
reasonably deems appropriate for the prudent operation of the
Company.'' Section 11.1(a)(i) of the CAT NMS Plan further states that:
---------------------------------------------------------------------------
\27\ Section 11.3(a)(i)(C) of the CAT NMS Plan.
[w]ithout limiting the foregoing, the reasonably budgeted CAT costs
shall include technology (including cloud hosting services,
operating fees, CAIS operating fees, change request fees and
capitalized developed technology costs), legal, consulting,
insurance, professional and administration, and public relations
costs, a reserve and such other cost categories as reasonably
---------------------------------------------------------------------------
determined by the Operating Committee to be included in the budget.
In accordance with the requirements under the CAT NMS Plan, the
Operating Committee approved an annual budget for 2024 for CAT LLC in
December 2023 (``Original 2024 Budget'').\28\ In August 2024, the
Operating Committee approved an updated budget for 2024 (``Updated 2024
Budget'').\29\ The Updated 2024 Budget includes actual costs for each
category for the months of January through July 2024, with estimated
costs for the remaining months of 2024. The Operating Committee also
approved the budgeted CAT costs for the CAT Fee 2024-1 Period (i.e.,
Budgeted CAT Costs 2024-1), which are a subset of the costs set forth
in the Updated 2024 Budget.
---------------------------------------------------------------------------
\28\ The Original 2024 Budget is available on the CAT website
(https://www.catnmsplan.com/sites/default/files/2024-07/07.09.2024-CAT%20LLC-2024-Financial-and-Operating-Budget.pdf).
\29\ The Updated 2024 Budget is available on the CAT website
(https://www.catnmsplan.com/sites/default/files/2024-08/07.31.24-CAT-LLC-2024-Financial_and_Operating-Budget.pdf).
---------------------------------------------------------------------------
As described in detail below, the Budgeted CAT Costs 2024-1 would
be $138,476,925. CEBBs collectively will be responsible for one-third
of the Budged [sic] CAT Costs 2024-1 (which is $46,158,975), and CEBSs
collectively will be responsible for one-third of Budgeted CAT Costs
2024-1 (which is $46,158,975).
The following describes in detail Budgeted CAT Costs 2024-1 for the
CAT Fee 2024-1 Period. The following cost details are provided in
accordance with the requirement in the CAT NMS Plan to provide in the
fee filing the following:
the budget for the upcoming year (or remainder of the year, as
applicable), including a brief description of each line item in the
budget, including (1) technology line items of cloud hosting
services, operating fees, CAIS operating fees, change request fees
and capitalized developed technology costs, (2) legal, (3)
consulting, (4) insurance, (5) professional and administration and
(6) public relations costs, a reserve and/or such other categories
as reasonably determined by the Operating Committee to be included
in the budget, and the reason for changes in each such line item
from the prior CAT fee filing.\30\
---------------------------------------------------------------------------
\30\ Section 11.3(a)(iii)(B) of the CAT NMS Plan.
Each of the costs described below are reasonable, appropriate and
necessary for the creation, implementation and maintenance of CAT.
The following table breaks down Budgeted CAT Costs 2024-1 into the
categories set forth in Section 11.3(a)(iii)(B) of the CAT NMS
Plan.\31\
---------------------------------------------------------------------------
\31\ Note that costs and related cost calculations provided in
this filing may reflect minor variations from the budgeted costs due
to rounding.
------------------------------------------------------------------------
Budget category Budgeted CAT costs 2024-1 *
------------------------------------------------------------------------
Capitalized Developed Technology Costs **. $4,101,990
Technology Costs:......................... 99,728,258
Cloud Hosting Services................ 76,278,426
Operating Fees........................ 14,008,947.50
CAIS Operating Fees................... 9,278,384.50
Change Request Fees................... 162,500
Legal..................................... 4,484,554.50
Consulting................................ 652,623
Insurance................................. 1,342,345
Professional and administration........... 428,544.50
Public relations.......................... 43,225
-----------------------------
Subtotal.............................. 110,781,540
Reserve................................... 27,695,385
-----------------------------
[[Page 73154]]
Total Budgeted CAT Costs 2024-1... 138,476,925
------------------------------------------------------------------------
* Budgeted CAT Costs 2024-1 described in this table of costs were
determined based an analysis of a variety of factors, including
historical costs/invoices, estimated costs from respective vendors/
service providers, contractual terms with vendors/service providers,
anticipated service levels and needs, and discussions with vendors and
Participants.
** The non-cash amortization of these capitalized developed technology
costs to be incurred during the CAT Fee 2024-1 Period have been
appropriately excluded from the above table.\32\
To the extent that CAT LLC enters into notes with Participants or
others to pay costs incurred during the period from July 16, 2024
through December 31, 2024, CAT LLC will use the proceeds from the CAT
Fee 2024-1 and the related Participant CAT fees to repay such notes.
---------------------------------------------------------------------------
\32\ With respect to certain costs that were ``appropriately
excluded,'' such excluded costs relate to the amortization of
capitalized technology costs, which are amortized over the life of
the Plan Processor Agreement. As such costs have already been
otherwise reflected in the filing, their inclusion would double
count the capitalized technology costs. In addition, amortization is
a non-cash expense.
---------------------------------------------------------------------------
(i) Technology Costs--Cloud Hosting Services
(a) Description of Cloud Hosting Services Costs
Section 11.3(a)(iii)(B)(B)(1) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to provide a brief description of the
cloud hosting services costs set forth in the budget. The Operating
Committee approved an operating budget for the CAT pursuant to Section
11.1(a) of the CAT NMS Plan that included $76,278,426 in technology
costs for cloud hosting services for the CAT Fee 2024-1 Period. The
technology costs for cloud hosting services represent costs reasonably
budgeted to be incurred for services provided by the cloud services
provider for the CAT, Amazon Web Services, Inc. (``AWS''), during the
CAT Fee 2024-1 Period.
In the agreement between CAT LLC and the Plan Processor for the CAT
(``Plan Processor Agreement''), FINRA CAT, LLC (``FCAT''), AWS was
named as the subcontractor to provide cloud hosting services. Under the
Plan Processor Agreement, CAT LLC is required to pay FCAT the fees
incurred by the Plan Processor for cloud hosting services provided by
AWS as FCAT's subcontrator [sic] on a monthly basis for the cloud
hosting services, and FCAT, in turn, pays such fees to AWS. The fees
for cloud hosting services were negotiated by FCAT on an arm's length
basis with the goals of managing costs and receiving services required
to comply with the CAT NMS Plan and Rule 613, taking into consideration
a variety of factors, including the expected volume of data, the
breadth of services provided and market rates for similar services. It
is anticipated that AWS will provide a broad array of cloud hosting
services for the CAT, including data ingestion, data management, and
analytic tools during the CAT Fee 2024-1 Period. Services provided by
AWS include storage services, databases, compute services and other
services (such as networking, management tools and DevOps tools), as
well as various environments for CAT, such as development, performance
testing, test, and production environments. AWS will perform cloud
hosting services for both the CAT transaction database as well as the
CAT Customer and Account Information System (``CAIS'') during the CAT
Fee 2024-1 Period.
The cost for AWS cloud services for the CAT is a function of the
volume of CAT Data. The greater the amount of CAT Data, the greater the
cost of AWS services to CAT LLC. During the CAT 2024-1 Period, it is
expected that AWS will provide cloud hosting services for volumes of
CAT Data far in excess of the volume predictions set forth in the CAT
NMS Plan. The CAT NMS Plan states, when all CAT Reporters are
submitting their data to the CAT, it ``must be sized to receive[,]
process and load more than 58 billion records per day,'' \33\ and that
``[i]t is expected that the Central Repository will grow to more than
29 petabytes of raw, uncompressed data.'' \34\ In contrast with those
estimates, the Q1 2024 data volumes, which averaged 577 billion events
per day, were up 45% compared to Q1 2023, which averaged 399 billion
events per day, with peak volumes recorded on April 19, 2024 of 746
billion events. Even higher peak volumes were recorded in July and
August 2024.
---------------------------------------------------------------------------
\33\ Appendix D-4 of the CAT NMS Plan at n.262.
\34\ Appendix D-5 of the CAT NMS Plan.
---------------------------------------------------------------------------
CAT LLC estimates that the budget for cloud hosting services costs
during the CAT Fee 2024-1 Period will be approximately $76,278,426. The
budget for cloud hosting services costs during the CAT Fee 2024-1
Period is calculated based on the Updated 2024 Budget. Specifically,
this estimate was calculated by adding the budgeted amounts for cloud
hosting services costs for the third and fourth quarter of 2024 as set
forth in the Updated 2024 Budget and subtracting one half of the cloud
hosting services costs incurred in July 2024 (as CAT Fee 2024-1 Period
began half way through July, on July 16, 2024).\35\
---------------------------------------------------------------------------
\35\ This calculation is ($38,132,441 + $43,919,730)-$5,773,745
= $76,278,426.
---------------------------------------------------------------------------
CAT LLC estimated the budget for the cost for cloud hosting
services for the CAT Fee 2024-1 Period based on an assumption of 30%
annual year-over-year volume growth for the transaction database and an
assumption of 5% annual year-over-year volume growth for CAIS. CAT LLC
determined these growth assumptions in coordination with FCAT based on
an analysis of a variety of existing data and alternative growth
scenarios. In addition, the budget for cloud hosting services for the
CAT Fee 2024-1 Period includes a budget for the cost of re-processing
data as approved by the CAT Operating Committee.\36\ The budget for re-
processing data was based on expenditures for re-processing in prior
years. This process for estimating the budget for cloud hosting
services costs for the CAT Fee 2024-1 Period is the same process by
which CAT LLC estimated the cloud hosting services costs for the
Original 2024 Budget. The Original 2024 Budget estimated a budget for
cloud hosting services of $71,384,109 for the first two quarters of
2024.\37\ The actual costs for cloud hosting services for the first two
quarters of 2024, which are set forth in the Updated 2024 Budget, were
$66,737,810.\38\ There is only an approximate 7% difference between the
estimate and actuals for cloud hosting services costs. Accordingly, CAT
LLC believes that the process for estimating the budgeted cloud hosting
services
[[Page 73155]]
costs for the CAT Fee 2024-1 Period is reasonable.
---------------------------------------------------------------------------
\36\ Appendix D-19 of the CAT NMS Plan states that ``[i]f
corrections are received after T+5, Participants' regulatory staff
and the SEC must be notified and informed as to how re-processing
will be completed. The Operating Committee will be involved with
decisions on how to re-process the data; however, this does not
relieve the Plan Processor of notifying the Participants' regulatory
staff and the SEC.''
\37\ This calculation is $33,217,468 + $38,166,641 =
$71,384,109.
\38\ This calculation is $30,343,917 + $36,393,893 =
$66,737,810.
---------------------------------------------------------------------------
(b) Changes From Prior Fee Filing
Section 11.3(a)(iii)(B)(B) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to describe the reason for changes in
the line item for cloud hosting services costs from the prior CAT Fee
filing. CAT LLC's proposed annual budget for cloud hosting services
costs for 2024 decreased about 3.5% from the Original 2024 Budget to
the Updated 2024 Budget, from $154,624,108 to $148,789,981. Although
there were expected cost increases related to data volume growth and
the associated compute and storage of the increased data levels, as
well as from additional capacity for OTQT systems that were added to
meet the performance standards set forth in the requirements of the
recent SEC exemptive order from November 2023,\39\ these cost increases
were offset by a variety of cost reduction efforts related to compute
efficiencies, the implementation of single pass linker related to
options quotes, and the implementation of compute and other
efficiencies related to CAIS. Without such cost management efforts, the
budgeted costs for cloud hosting services would have increased by
approximately 15%, rather than decreased. Correspondingly, the proposed
budget for cloud hosting services costs for the third and fourth
quarters of 2024 did not change in a material way from the Original
2024 Budget to the Updated 2024 Budget. There was only an approximate
1% decrease from $83,239,999 in the Original 2024 Budget \40\ to
$82,052,171 in the Updated 2024 Budget for the third and fourth
quarters of 2024.\41\
---------------------------------------------------------------------------
\39\ Securities Exchange Act Rel. No. 98848 (Nov. 2, 2023), 88
FR 77128 (Nov. 8, 2023).
\40\ This calculation is $39,961,511 + $43,278,488 =
$83,239,999.
\41\ This calculation is $38,132,441 + $43,919,730 =
$82,052,171.
---------------------------------------------------------------------------
(ii) Technology Costs--Operating Fees
(a) Description of Operating Fees
Section 11.3(a)(iii)(B)(B)(1) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to provide a brief description of the
operating fees set forth in the budget. The Operating Committee
approved an operating budget for the CAT pursuant to Section 11.1(a) of
the CAT NMS Plan that included $14,008,947.50 in technology costs for
operating fees for the CAT Fee 2024-1 Period. Operating fees are those
fees paid by CAT LLC to FCAT as the Plan Processor to operate and
maintain the CAT and to perform business operations related to the
system, including compliance, security, testing, training,
communications with the industry (e.g., management of the FINRA CAT
Helpdesk, FAQs, website and webinars) and program management as
required by the CAT NMS Plan. Operating fees also include market data
provider costs, as discussed below.
Plan Processor: FCAT. Under the Plan Processor Agreement with FCAT,
CAT LLC is required to pay FCAT a negotiated monthly fixed price for
the operation of the CAT. This fixed price contract was negotiated on
an arm's length basis with the goals of managing costs and receiving
services required to comply with the CAT NMS Plan and Rule 613, taking
into consideration a variety of factors, including the breadth of
services provided and market rates for similar types of activity. It is
anticipated that FCAT will provide a variety of services to the CAT
during the CAT Fee 2024-1 Period, including the following:
Provide the CAT-related functions and services as the Plan
Processor as required by SEC Rule 613 and the CAT NMS Plan in
connection with the operation and maintenance of the CAT;
Address compliance items, including drafting CAT policies
and procedures, and addressing Regulation SCI requirements;
Provide support to the Operating Committee, the Compliance
Subcommittee and CAT working groups;
Assist with interpretive efforts and exemptive requests
regarding the CAT NMS Plan;
Oversee the security of the CAT;
Monitor the operation of the CAT, including with regard to
Participant and Industry Member reporting;
Provide support to subcontractors under the Plan Processor
Agreement;
Provide support in discussions with the Participants and
the SEC and its staff;
Operate the FINRA CAT Helpdesk;
Facilitate communications with the industry, including via
FAQs, CAT Alerts, meetings, presentations and webinars;
Administer the CAT website and all of its content;
Maintain cyber security insurance related to the CAT; and
Provide technical support and assistance with
connectivity, data access, and user support, including the use of CAT
Data and query tools, for Participants and the SEC staff.
CAT LLC calcuated [sic] the budget for the FCAT technology costs
for operating fees for the CAT Fee 2024-1 Period based on the recurring
monthly operating fees under the Plan Processor Agreement.
Market Data Provider: Exegy. It is anticipated that the operating
fees costs for the CAT Fee 2024-1 Period will include costs related to
the receipt of certain market data for the CAT pursuant to an agreement
between FCAT and Exegy Incorporated (``Exegy''). CAT LLC determined
that Exegy would provide market data that included all data elements
required by the CAT NMS Plan,\42\ and that the fees were reasonable and
in line with market rates for the market data received. All costs under
the contract would be treated as a direct pass through cost to CAT LLC.
CAT LLC estimated the budget for the costs for Exegy for the CAT Fee
2024-1 Period based on the monthly rate set forth in the agreement
between Exegy and FCAT.
---------------------------------------------------------------------------
\42\ See Section 6.5(a)(ii) of the CAT NMS Plan.
---------------------------------------------------------------------------
Operating Fee Estimates. CAT LLC estimates that the budget for
operating fees during the CAT Fee 2024-1 Period will be approximately
$14,008,947.50. The budget for operating fees during the CAT Fee 2024-1
Period is calculated based on the Updated 2024 Budget. Specifically,
this estimate was calculated by adding the budgeted amounts for
operating fees for the third and fourth quarter of 2024 as set forth in
the Updated 2024 Budget and subtracting one half of the actual
operating fees incurred in July 2024 (as CAT Fee 2024-1 Period began
half way through July, on July 16, 2024).\43\
---------------------------------------------------------------------------
\43\ This calculation is ($6,907,383 + $904,664) + ($6,907,383 +
$440,748) - $1,151,230.50 = $14,008,947.5.
---------------------------------------------------------------------------
As discussed above, CAT LLC estimated the budget for the operating
fees during the CAT Fee 2024-1 Period based on monthly rates set forth
in the Plan Processor Agreement and the agreement with Exegy. CAT LLC
also recognized that the operating fees are generally consistent
throughout the year. This process for estimating the budget for the
operating fees for the CAT Fee 2024-1 Period is the same process by
which CAT LLC estimated the operating fees for the Original 2024
Budget. The Original 2024 Budget estimated a budget for operating fees
of $13,558,875 for the first two quarters of 2024.\44\ The actual costs
for operating fees for the first two quarters of 2024, which are set
forth in the Updated 2024 Budget, were $12,608,540.\45\ There was
[[Page 73156]]
an approximate 7% decrease from estimates to actuals for the first two
quarters. Accordingly, CAT LLC believes that the process for estimating
the budgeted operating fees for the CAT Fee 2024-1 Period is
reasonable.
---------------------------------------------------------------------------
\44\ This calculation is $6,726,747 + $6,832,128 = $13,558,875.
\45\ This calculation is $6,702,506 + $5,906,034 = $12,608,540.
---------------------------------------------------------------------------
(b) Changes From Prior Fee Filing
Section 11.3(a)(iii)(B)(B) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to describe the reason for changes in
the line item for operating fees from the prior CAT Fee filing. As this
is the first Prospective CAT Fee Filing, this filing describes the
changes in the operating fees from the Original 2024 Budget. CAT LLC's
proposed annual budget for operating fees for 2024 increased from
$27,223,132 to $27,768,718 \46\ from the Original 2024 Budget to the
Updated 2024 Budget, and the proposed budget for operating fees for the
third and fourth quarters of 2024 increased from $13,664,256 in the
Original 2024 Budget \47\ to $15,160,178 in the Updated 2024
Budget.\48\ This increase is due to a cyber insurance adjustment.
---------------------------------------------------------------------------
\46\ This calculation is $26,423,306 + $1,345,412 = $27,768,718.
\47\ This calculation is $6,832,128 + $6,832,128 = $13,664,256.
\48\ This calculation is ($6,907,383 + $904,664) + ($6,907,383 +
$440,748) = $15,160,178.
---------------------------------------------------------------------------
(iii) Technology Costs--CAIS Operating Fees
(a) Description of CAIS Operating Fees
Section 11.3(a)(iii)(B)(B)(1) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to provide a brief description of the
CAIS operating fees set forth in the budget. The Operating Committee
approved an operating budget for the CAT pursuant to Section 11.1(a) of
the CAT NMS Plan that included $9,278,384.50 in technology costs for
CAIS operating fees for the CAT Fee 2024-1 Period. CAIS operating fees
represent the fees paid to FCAT for services provided with regard to
the operation and maintenance of CAIS, and to perform the business
operations related to the system, including compliance, security,
testing, training, communications with the industry (e.g., management
of the FINRA CAT Helpdesk, FAQs, website and webinars) and program
management. The CAT is required under the CAT NMS Plan to capture and
store Customer Identifying Information and Customer Account Information
in a database separate from the transactional database and to create a
CAT-Customer-ID for each Customer. As of May 31, 2024, the
implementation of CAIS was completed.\49\
---------------------------------------------------------------------------
\49\ For a discussion of the implementation timeline for CAIS,
see CAT Alert 2023-01.
---------------------------------------------------------------------------
During the CAT Fee 2024-1 Period, it is anticipated that FCAT will
provide CAIS-related services. Under the Plan Processor Agreement with
FCAT, CAT LLC is required to pay FCAT for CAIS-related services
provided by FCAT on a monthly basis. CAT LLC negotiated the fees for
FCAT's CAIS-related services on an arm's length basis with the goals of
managing costs and receiving services required to comply with the CAT
NMS Plan, taking into consideration a variety of factors, including the
services to be provided and market rates for similar types of activity.
During the CAT Fee 2024-1 Period, it is anticipated that FCAT will
continue to provide services relating to the ongoing operation,
maintenance and support of CAIS.
CAT LLC estimates that the budget for CAIS operating fees during
the CAT Fee 2024-1 Period will be approximately $9,278,384.50. The
budget for CAIS operating fees during the CAT Fee 2024-1 Period is
calculated based on the Updated 2024 Budget. Specifically, this
estimate was calculated by adding the budgeted amounts for CAIS
operating fees for the third and fourth quarter of 2024 as set forth in
the Updated 2024 Budget and subtracting one half of the actual CAIS
operating fees costs incurred in July 2024 (as CAT Fee 2024-1 Period
began half way through July, on July 16, 2024).\50\
---------------------------------------------------------------------------
\50\ This calculation is ($5,060,937 + $5,060,937) - $843,489.50
= $9,278,384.50.
---------------------------------------------------------------------------
CAT LLC calculated the budget for FCAT's CAIS-related services for
the CAT Fee 2024-1 Period based on the recurring monthly CAIS operating
fees under the Plan Processor Agreement. This process for estimating
the budget for the CAIS operating fees for the CAT Fee 2024-1 Period is
the same process by which CAT LLC estimated the CAIS operating fees for
the Original 2024 Budget. The Original 2024 Budget estimated a budget
for CAIS operating fees of $10,418,666 for the the [sic] first two
quarters of 2024.\51\ The actual costs for CAIS operating fees for the
first two quarters of 2024, which are set forth in the Updated 2024
Budget, were $10,078,045.\52\ There is only an approximate 3%
difference between the estimate and actuals. Accordingly, CAT LLC
believes that the process for estimating the budgeted CAIS operating
fees for the CAT Fee 2024-1 Period is reasonable.
---------------------------------------------------------------------------
\51\ This calculation is $5,282,128 + $5,136,538 = $10,418,666.
\52\ This calculation is $5,017,108 + $5,060,937 = $10,078,045.
---------------------------------------------------------------------------
(b) Changes From Prior Fee Filing
Section 11.3(a)(iii)(B)(B) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to describe the reason for changes in
the line item for CAIS operating fees from the prior CAT Fee filing. As
this is the first Prospective CAT Fee Filing, this filing describes the
changes in the CAIS operating fees from the Original 2024 Budget. CAT
LLC's proposed annual budget for CAIS operating fees for 2024 had a
small 2% percent decrease of $491,821 from the Original 2024 Budget to
the Updated 2024 Budget, from $20,691,740 to $20,199,919.
Correspondingly, the proposed budget for CAIS operating fees for the
third and fourth quarters of 2024 had a small 1% percentage decrease of
$151,202, from $10,273,076 in the Original 2024 Budget \53\ to
$10,121,874 in the Updated 2024 Budget.\54\
---------------------------------------------------------------------------
\53\ This calculation is $5,136,538 + $5,136,538 = $10,273,076.
\54\ This calculation is $5,060,937 + $5,060,937 = $10,121,874.
---------------------------------------------------------------------------
(iv) Technology Costs--Change Request Fees
(a) Description of Change Request Fees
Section 11.3(a)(iii)(B)(B)(1) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to provide a brief description of the
change request fees set forth in the budget. The Operating Committee
approved an operating budget for the CAT pursuant to Section 11.1(a) of
the CAT NMS Plan that included $162,500 in technology costs for change
request fees for the CAT Fee 2024-1 Period. The technology costs
related to change request fees include costs related to certain
modifications, upgrades or other changes to the CAT.
Change requests are standard practice and necessary to reflect
operational changes, including changes related to new market
developments, such as new market participants. In general, if CAT LLC
determines that a modification, upgrade or other changes to the
functionality or service is necessary and appropriate, CAT LLC will
submit a request for such a change to the Plan Processor. The Plan
Processor will then respond to the request with a proposal for
implementing the change, including the cost (if any) of such a change.
CAT LLC then determines whether to approve the proposed change.
During the CAT Fee 2024-1 Period, it is anticipated that CAT LLC
will engage FCAT to pursue certain change requests in accordance with
the Plan Processor Agreement. The budget for change requests for the
CAT Fee 2024-1 Period includes a placeholder of $162,500 for potential
change request fees that may be necessary in accordance with the Plan
Processor Agreement. The placeholder amount was determined
[[Page 73157]]
based on prior experience with change requests related to the CAT.
CAT LLC estimates that the budget for change requests during the
CAT Fee 2024-1 Period will be approximately $162,500. The budget for
change requests during the CAT Fee 2024-1 Period is calculated based on
the Updated 2024 Budget. Specifically, this estimate was calculated by
adding the budgeted amounts for the change requests for the third and
fourth quarter of 2024 as set forth in the Updated 2024 Budget and
subtracting one half of the actual change request costs incurred in
July 2024 (as CAT Fee 2024-1 Period began half way through July, on
July 16, 2024).\55\
---------------------------------------------------------------------------
\55\ This calculation is ($0 + $162,500) - $0 = $162,500.
---------------------------------------------------------------------------
CAT LLC estimated the budget for the potential change requests for
the CAT Fee 2024-1 Period based on, among other things, a review of
past change requests and potential future change request needs, as well
as discussions with FCAT. This process for estimating the budget for
the change requests for the CAT Fee 2024-1 Period is the same process
by which CAT LLC estimated the change requests cost for the Original
2024 Budget. The Original 2024 Budget estimated a change request budget
of $81,250 for the the [sic] first two quarters of 2024.\56\ The actual
costs for change requests for the first two quarters of 2024, which are
set forth in the Updated 2024 Budget, were $0. Although the budget
exceeded the actual costs of change requests during the first two
quarters of 2024, CAT LLC believes that the process for estimating a
placeholder amount for potential change requests is reasonable given
the evolving technology needs of the CAT.
---------------------------------------------------------------------------
\56\ This calculation is $0 + $81,250 = $81,250.
---------------------------------------------------------------------------
(b) Changes From Prior Fee Filing
Section 11.3(a)(iii)(B)(B) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to describe the reason for changes in
the line item for change request fees from the prior CAT Fee filing. As
this is the first Prospective CAT Fee Filing, this filing describes the
changes in the change request fees from the Original 2024 Budget. CAT
LLC's proposed annual budget for change requests for 2024 decreased by
$81,250 from the Original 2024 Budget to the Updated 2024 Budget, from
$243,750 to $162,500. CAT LLC has reduced the annual budget for a
placeholder for change request fees for 2024 by one-third, as time has
passed without additional change requests anticipated by this
placeholder amount. Correspondingly, the proposed budget for change
requests for the third and fourth quarters remained the same at
$162,500 for the Original 2024 Budget \57\ and the Updated 2024
Budget.\58\
---------------------------------------------------------------------------
\57\ This calculation is $81,250 + $81,250 = $162,500.
\58\ This calculation is $0 + $162,500 = $162,500.
---------------------------------------------------------------------------
(v) Technology Costs--Capitalized Developed Technology Costs
(a) Description of Capitalized Developed Technology Costs
Section 11.3(a)(iii)(B)(B)(1) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to provide a brief description of the
capitalized developed technology costs set forth in the budget. The
Operating Committee approved an operating budget for the CAT pursuant
to Section 11.1(a) of the CAT NMS Plan that includes $4,101,990 in
technology costs for capitalized developed technology costs for the CAT
Fee 2024-1 Period. This category of costs includes the budget for
capitalizable application development costs incurred in the development
of the CAT. It is anticipated that such costs will include certain
costs related to the software license fee for CAIS in accordance with
the Plan Processor Agreement with FCAT, as well as costs related to a
set of technology changes to be implemented by FCAT.
CAT LLC estimates that the budget for capitalized developed
technology costs during the CAT Fee 2024-1 Period will be approximately
$4,101,990. The budget for capitalized developed technology costs
during the CAT Fee 2024-1 Period is calculated based on the Updated
2024 Budget. Specifically, this estimate was calculated by adding the
budgeted amounts for capitalized developed technology costs for the
third and fourth quarter of 2024 as set forth in the Updated 2024
Budget and subtracting one half of the actual capitalized developed
technology costs incurred in July 2024 (as CAT Fee 2024-1 Period began
halfway through July, on July 16, 2024).\59\
---------------------------------------------------------------------------
\59\ This calculation is ($3,810,990 + $291,000) - $0 =
$4,101,990.
---------------------------------------------------------------------------
CAT LLC estimated the budget for capitalized developed technology
costs for the CAT Fee 2024-1 Period based on an analysis of a variety
of factors, including information related to potential technology costs
and related contractual and Plan requirements, and discussions with
FCAT regarding such potential technology costs. The Original 2024
Budget estimated a budget for capitalized developed technology costs of
$2,300,000 for the first two quarters of 2024.\60\ The actual costs for
capitalized developed technology costs for the first two quarters of
2024, which are set forth in the Updated 2024 Budget, were
$3,659,490.\61\ The increase was due to a software license fee for
CAIS. Accordingly, CAT LLC believes that the process for estimating the
budgeted capitalized developed technology costs for the CAT Fee 2024-1
Period is reasonable.
---------------------------------------------------------------------------
\60\ This calculation is $2,300,000 + $0 = $2,300,000.
\61\ This calculation is $2,300,000 + $1,359,490 = $3,659,490.
---------------------------------------------------------------------------
(b) Changes From Prior Fee Filing
Section 11.3(a)(iii)(B)(B) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to describe the reason for changes in
the line item for capitalized developed technology costs from the prior
CAT Fee filing. As this is the first Prospective CAT Fee Filing, this
filing describes the changes in capitalized developed technology costs
from the Original 2024 Budget. CAT LLC's proposed budget for
capitalized developed technology costs for 2024 increased from the
Original 2024 Budget to the Updated 2024 Budget. The annual budget for
capitalized developed technology costs for 2024 increased by $5,461,480
from the Original 2024 Budget of $2,300,000 to the Updated 2024 Budget
of $7,761,480.\62\ Correspondingly, the budget for capitalized
developed technology costs for the third and fourth quarters of 2024
increased from $0 \63\ in the Original 2024 Budget to $4,101,990 in the
Updated 2024 Budget.\64\ This increase in the capitalized developed
technology costs budget in the Updated 2024 Budget over the Original
2024 Budget was the result of costs related to the software license fee
for CAIS in accordance with the Plan Processor Agreement with FCAT, as
well as costs related to a set of technology changes to be implemented
by FCAT.
---------------------------------------------------------------------------
\62\ This calculation is $2,591,000 + $5,170,480 = $7,761,480.
\63\ This calculation is $0 + $0 = $0.
\64\ This calculation is $3,810,990 + $291,000 = $4,101,990.
---------------------------------------------------------------------------
(vi) Legal Costs
(a) Description of Legal Costs
Section 11.3(a)(iii)(B)(B)(2) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to provide a brief description of the
legal costs set forth in the budget. The Operating Committee approved
an operating budget for the CAT pursuant to Section 11.1(a) of the CAT
NMS Plan that includes $4,484,554.50 in legal costs for the CAT Fee
2024-1 Period. This category of
[[Page 73158]]
costs represents budgeted costs for legal services for this period. CAT
LLC anticipates that it will receive legal services from two law firms,
Wilmer Cutler Pickering Hale and Dorr LLP (``WilmerHale'') and Jenner &
Block LLP (``Jenner''), during the CAT Fee 2024-1 Period.
Law Firm: WilmerHale. It is anticipated that legal costs during the
CAT Fee 2024-1 Period will include costs related to the legal services
performed by WilmerHale. CAT LLC anticipates that it will continue to
employ WilmerHale during the CAT Fee 2024-1 Period based on, among
other things, their expertise, long history with the project and
recognition that the hourly fee rates for this law firm are anticipated
to be in line with market rates for specialized legal expertise.
WilmerHale's billing rates are negotiated on an annual basis and are
determined with reference to the rates charged by other leading law
firms for similar work. The Participants assess WilmerHale's
performance and review prospective budgets and staffing plans submitted
by WilmerHale on an annual basis. The legal fees will be paid by CAT
LLC to WilmerHale.
During the CAT Fee 2024-1 Period, it is anticipated that WilmerHale
will provide legal services related to the following:
Assist with CAT fee filings and related funding issues;
Draft exemptive requests from CAT NMS Plan requirements
and/or proposed amendments to the CAT NMS Plan;
Provide legal interpretations of CAT NMS Plan
requirements;
Provide legal support for the Operating Committee,
Compliance Subcommittee, working groups and Leadership Team;
Draft SRO rule filings related to the CAT Compliance Rule;
Manage corporate governance matters, including supporting
Operating Committee meetings and preparing resolutions and consents;
Assist with communications with the industry, including
CAT Alerts and presentations;
Provide guidance regarding the confidentiality of CAT
Data;
Assist with cost management analyses and proposals;
Assist with commercial contract-related matters, including
change orders, Plan Processor Agreement items, and subcontract matters;
Provide support with regard to discussions with the SEC
and its staff, including with respect to addressing interpretive and
implementation issues;
Assist with CAT budget and FCAT costs;
Assist other counsel for CAT on litigation-related
matters; and
Assist with legal responses related to third-party data
requests.
CAT LLC estimated the budget for the legal costs for WilmerHale for the
CAT Fee 2024-1 Period through an analysis of a variety of factors,
including WilmerHale fee rates, historical legal fees, information
related to pending legal issues and potential future legal issues, and
discussions with WilmerHale.
Law Firm: Jenner. It is anticipated that legal costs during the CAT
Fee 2024-1 Period will include costs related to the legal services
performed by Jenner. CAT LLC anticipates that it will continue to
employ Jenner during the CAT Fee 2024-1 Period based on among other
things, their expertise, history with the project and recognition that
their hourly fee rates are in line with market rates for specialized
legal expertise. The legal fees will be paid by CAT LLC to Jenner.
During the CAT Fee 2024-1 Period, it is anticipated that Jenner
will continue to provide legal assistance to CAT LLC regarding certain
litigation matters, including: (1) CAT LLC's defense against a lawsuit
filed in the Western District of Texas against Chair Gensler, the SEC
and CAT LLC challenging the validity of the Rule 613 and the CAT and
alleging various constitutional, statutory, and common law claims
(``Texas Litigation''); \65\ (2) CAT LLC's intervention in a lawsuit in
the Eleventh Circuit filed by various parties against the SEC
challenging the SEC's approval of the CAT Funding Model; \66\ and (3) a
lawsuit in the Eleventh Circuit filed by Citadel Securities LLC seeking
review of the SEC's May 20, 2024 order \67\ granting the Participants
temporary conditional exemptive relief related to the reporting of bids
and/or offers made in response to a request for quote or other form of
solicitation response provided in standard electronic format that is
not immediately actionable.\68\ Litigation involving CAT LLC is an
expense of operating the CAT, and, therefore, is appropriately an
obligation of both Participants and Industry Members under the CAT
Funding Model.
---------------------------------------------------------------------------
\65\ American Securities Ass'n v. Securities and Exchange
Commission, Case No. 23-13396 (11th Cir.).
\66\ Davidson v. Gensler, Case No. 6:24-cv-197 (W.D. Tex.).
\67\ Securities Exchange Act Rel. No. 100181 (May 20, 2024), 89
FR 45715 (May 23, 2024).
\68\ Citadel Securities LLC v. United States Securities and
Exchange Commission, Case No. 24-12300 (11th Cir.).
---------------------------------------------------------------------------
CAT LLC estimated the budget for the legal costs for Jenner for the
CAT Fee 2024-1 Period through an analysis of a variety of factors,
including Jenner fee rates, historical legal fees, and information
related to pending legal issues and potential future legal issues, and
discussions with Jenner.
Legal Cost Estimates. CAT LLC estimates that the budget for legal
services during the CAT Fee 2024-1 Period will be approximately
$4,484,554.50. The budget for legal services during the CAT Fee 2024-1
Period is calculated based on the Updated 2024 Budget. Specifically,
this estimate was calculated by adding the budgeted amounts for the
legal services for the third and fourth quarter of 2024 as set forth in
the Updated 2024 Budget and subtracting one half of the actual legal
costs incurred in July 2024 (as the CAT Fee 2024-1 Period began halfway
through July, on July 16, 2024).\69\
---------------------------------------------------------------------------
\69\ This calculation is ($2,647,277 + $2,342,562) - $505,284.50
= $4,484,554.50.
---------------------------------------------------------------------------
CAT LLC estimated the budget for the legal services for the CAT Fee
2024-1 Period based on an analysis of a variety of factors, including
law firm fee rates, historical legal fees, and information related to
pending legal issues and potential future legal issues, and discussions
with the law firms. This process for estimating the budget for the
legal services for the CAT Fee 2024-1 Period is the same process by
which CAT LLC estimated the legal cost for the Original 2024 Budget.
The Original 2024 Budget estimated a budget for legal costs of
$2,440,000 for the first two quarters of 2024.\70\ The actual costs for
legal services for the first two quarters of 2024, which are set forth
in the Updated 2024 Budget, were $3,156,762.\71\ Although there is an
increase from the budgeted legal costs to the actual legal costs for
the first two quarters of 2024, such increase was due to unanticipated
issues that required additional legal efforts on behalf of CAT LLC that
developed after the budget was created. Such additional costs including
costs related to (1) the legal defense related to the Texas Litigation;
and (2) additional regulatory and corporate legal issues, including (a)
additional work for commercial contract-related matters, including
change orders, Plan Processor Agreement items, and subcontract matters;
(b) assistance regarding budget and FCAT costs; (c) assistance to other
counsel for CAT on litigation-related matters; and (d) assistance
related to CAT fee filings and CAT NMS Plan amendments. Accordingly,
CAT LLC believes that the process for estimating
[[Page 73159]]
the budgeted legal costs for the CAT Fee 2024-1 Period is reasonable.
---------------------------------------------------------------------------
\70\ This calculation is $1,220,000 + $1,220,000 = $ 2,440,000.
\71\ This calculation is $791,912 + $2,364,850 = $3,156,762.
---------------------------------------------------------------------------
(b) Changes From Prior Fee Filing
Section 11.3(a)(iii)(B)(B) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to describe the reason for changes in
the line item for legal costs from the prior CAT Fee filing. As this is
the first Prospective CAT Fee Filing, this filing describes the changes
in the legal costs from the Original 2024 Budget. CAT LLC's proposed
budget for legal costs for 2024 increased from the Original 2024 Budget
to the Updated 2024 Budget. The annual budget for legal costs for 2024
increased from the Original 2024 Budget to the Updated 2024 Budget,
from $4,460,000 to $8,146,599. Correspondingly, the proposed budget for
legal costs for the third and fourth quarters increased from $2,020,000
\72\ in the Original 2024 Budget to $4,989,837 in the Updated 2024
Budget.\73\ This increase in the legal budget in the Updated 2024
Budget from the Original 2024 Budget was primarily due to unanticipated
legal costs, including costs related to (1) the legal defense related
to the Texas Litigation; and (2) additional regulatory and corporate
legal issues, including (a) additional work for commercial contract-
related matters, including change orders, Plan Processor Agreement
items, and subcontract matters; (b) assistance regarding budget and
FCAT costs; (c) assistance to other counsel for CAT on litigation-
related matters; and (d) assistance related to CAT fee filings and CAT
NMS Plan amendments. In addition, CAT LLC no longer anticipates
incurring legal costs related to the law firms of Pillsbury Winthrop
Shaw Pittman LLP and Covington & Burling LLP during the CAT Fee 2024-1
Period due to the conclusion of the relevant prior legal matters.
---------------------------------------------------------------------------
\72\ This calculation is $1,047,500 + $972,500 = $2,020,000.
\73\ This calculation is $2,647,277 + $2,342,560 = $4,989,837.
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(vii) Consulting Costs
(a) Description of Consulting Costs
Section 11.3(a)(iii)(B)(B)(3) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to provide a brief description of the
consulting costs set forth in the budget. The Operating Committee
approved an operating budget for the CAT pursuant to Section 11.1(a) of
the CAT NMS Plan that included $652,623 in consulting costs for the CAT
Fee 2024-1 Period. The consulting costs represent the fees estimated to
be paid to the consulting firm Deloitte & Touche LLP (``Deloitte'') as
project manager during the CAT Fee 2024-1 Period. These consulting
costs include costs for advisory services related to the operation of
the CAT, and meeting facilitation and communications coordination,
vendor support and financial analyses.
It is anticipated that the costs for CAT during CAT Fee 2024-1
Period will include costs related to consulting services performed by
Deloitte. CAT LLC anticipates that it will continue to employ Deloitte
during the CAT Fee 2024-1 Period based on, among other things, their
expertise, long history with the project, and the recognition that it
is anticipated that the consulting fees will remain in line with market
rates for this type of specialized consulting work. Deloitte's fee
rates are negotiated on an annual basis. CAT LLC assesses Deloitte's
performance and reviews prospective budgets and staffing plans
submitted by Deloitte on an annual basis. The consulting fees will be
paid by CAT LLC to Deloitte.
It is anticipated that Deloitte will provide a variety of
consulting services to the CAT during the CAT Fee 2024-1 Period,
including the following:
Implement program operations for the CAT project;
Provide support to the Operating Committee, the Chair of
the Operating Committee and the Leadership Team, including project
management support, coordination and planning for meetings and
communications, and interfacing with law firms and the SEC;
Assist with cost and funding matters for the CAT,
including assistance with loans and the CAT bank account for CAT
funding;
Provide support for updating the SEC on the progress of
the development of the CAT; and
Provide support for third party vendors for the CAT,
including FCAT, Anchin and the law firms engaged by CAT LLC.
In addition, the consulting costs include the compensation for the
Chair of the CAT Operating Committee.
CAT LLC estimates that the budet [sic] for consulting costs during
the CAT Fee 2024-1 Period will be approximately $652,623. The budget
for consulting costs during the CAT Fee 2024-1 Period is calculated
based on the Updated 2024 Budget. Specifically, this estimate was
calculated by adding the budgeted amounts for consulting services for
the third and fourth quarter of 2024 as set forth in the Updated 2024
Budget and subtracting one half of the actual consulting costs incurred
in July 2024 (as the CAT Fee 2024-1 Period begain [sic] halfway through
July, on July 16, 2024).\74\
---------------------------------------------------------------------------
\74\ This calculation is ($359,926 + $354,495) - $61,798 =
$652,623.
---------------------------------------------------------------------------
CAT LLC estimates the budget for the consulting costs for Deloitte
for the CAT Fee 2024-1 Period based on the current statement of work
with Deloitte, which took into consideration past consulting costs,
potential future consulting needs, the proposed rates and other
contractual issues, as well as discussions with Deloitte. The Original
2024 Budget estimated a budget for consulting cost of $800,000 for the
first two quarters of 2024.\75\ The actual costs for consulting
services for the first two quarters of 2024, which are set forth in the
Updated 2024 Budget, were $885,580.\76\ There is only an approximate
10% difference between the estimate and actuals. Accordingly, CAT LLC
believes that the process for estimating the budgeted consulting costs
for the CAT Fee 2024-1 Period is reasonable.
---------------------------------------------------------------------------
\75\ This calculation is $400,000 + $400,000 = $800,000.
\76\ This calculation is $264,101 + $621,479 = $885,580.
---------------------------------------------------------------------------
(b) Changes From Prior Fee Filing
Section 11.3(a)(iii)(B)(B) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to describe the reason for changes in
the line item for consulting costs from the prior CAT Fee filing. As
this is the first Prospective CAT Fee Filing, this filing describes the
changes in the consulting costs from the Original 2024 Budget. CAT
LLC's proposed annual budget for consulting costs for 2024 has not
changed from the Original 2024 Budget to the Updated 2024 Budget; it
remains $1,600,000. Correspondingly, the proposed budget for consulting
costs for the third and fourth quarters of 2024 decreased by $85,580
(which is approximately 11%), from $800,000 in the Original 2024 Budget
\77\ to $714,420 in the Updated 2024 Budget.\78\
---------------------------------------------------------------------------
\77\ This calculation is $400,000 + $400,000 = $800,000.
\78\ This calculation is $359,925 + $354,495 = $714,420.
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(viii) Insurance Costs
(a) Description of Insurance Costs
Section 11.3(a)(iii)(B)(B)(4) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to provide a brief description of the
insurance costs set forth in the budget. The Operating Committee
approved an operating budget for the CAT pursuant to Section 11.1(a) of
the CAT NMS Plan that included $1,342,345 in insurance costs for the
CAT Fee 2024-1 Period. The insurance costs represent the costs to be
[[Page 73160]]
incurred for insurance for CAT during the CAT Fee 2024-1 Period.
It is anticipated that the insurance costs for CAT during the CAT
Fee 2024-1 Period will include costs related to cyber security
liability insurance, directors' and officers' liability insurance, and
errors and omissions liability insurance brokered by USI Insurance
Services LLC (``USI''). Such policies are standard for corporate
entities, and cyber security liability insurance is important for the
CAT System. CAT LLC anticipates that it will continue to maintain this
insurance during CAT Fee 2024-1 Period, and notes that the annual
premiums for these policies were competitive for the coverage provided.
CAT LLC estimated the budget for the insurance costs for the CAT Fee
2024-1 Period based on the actual insurance quote from USI for 2024.
The annual premiums would be paid by CAT LLC to USI.\79\
---------------------------------------------------------------------------
\79\ Note that CAT LLC generally pays its USI insurance premiums
once per year, and such payment is scheduled to occur during the
third quarter of 2024.
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(b) Changes From Prior Fee Filing
Section 11.3(a)(iii)(B)(B) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to describe the reason for changes in
the line item for insurance costs from the prior CAT Fee filing. As
this is the first Prospective CAT Fee Filing, this filing describes the
changes in the insurance costs from the Original 2024 Budget. CAT LLC's
proposed annual budget for insurance costs for 2024 decreased by
$525,680 from the Original 2024 Budget, from $1,868,025 to $1,342,345.
For the Original 2024 Budget, CAT LLC estimated the budget for the
insurance costs for the CAT Fee 2024-1 Period based on the 2023
insurance premiums plus a 15% year-over-year increase. However, the
budgeted insurance costs as set forth in the Updated 2024 Budget were
based on the actual insurance quote from USI for 2024.
(ix) Professional and Administration Costs
(a) Description of Professional and Administration Costs
Section 11.3(a)(iii)(B)(B)(5) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to provide a brief description of the
professional and administration costs set forth in the budget. The
Operating Committee approved an operating budget for the CAT pursuant
to Section 11.1(a) of the CAT NMS Plan that included $428,544.50 in
professional and administration costs for the CAT Fee 2024-1 Period. In
adopting the CAT NMS Plan, the Commission amended the Plan to add a
requirement that CAT LLC's financial statements be prepared in
compliance with GAAP, audited by an independent public accounting firm,
and made publicly available.\80\ The professional and administration
costs would include costs related to accounting and accounting advisory
services to support the operating and financial functions of CAT,
financial statement audit services by an independent accounting firm,
preparation of tax returns, and various cash management and treasury
functions. The professional and administration costs represent the fees
to be paid to Anchin Block & Anchin (``Anchin'') and Grant Thornton LLP
(``Grant Thornton'') for financial services during CAT Fee 2024-1
Period.
---------------------------------------------------------------------------
\80\ Section 9.2 of the CAT NMS Plan.
---------------------------------------------------------------------------
Financial Advisory Firm: Anchin. It is anticipated that the
professional and administration costs for the CAT Fee 2024-1 Period
will include costs related to financial advisory services performed by
Anchin. CAT LLC anticipates that it will continue to employ Anchin
during CAT Fee 2024-1 Period based on, among other things, the firm's
relevant expertise and fees, which are anticipated to remain in line
with market rates for these financial advisory services. The fees for
these services will be paid by CAT LLC to Anchin.
It is anticipated that Anchin will provide a variety of services to
the CAT during the CAT Fee 2024-1 Period, including the following:
Update and maintain internal controls;
Provide cash management and treasury functions;
Faciliate [sic] bill payments;
Provide monthly bookkeeping;
Review vendor invoices and documentation in support of
cash disbursements;
Provide accounting research and consultations on various
accounting, financial reporting and tax matters;
Address not-for-profit tax and accounting considerations;
Prepare tax returns;
Address various accounting, financial reporting and
operating inquiries From Participants;
Develop and maintain annual operating and financial
budgets, including budget to actual fluctuation analyses;
Support compliance with the CAT NMS Plan;
Work with and provide support to the Operating Committee
and various CAT working groups;
Prepare monthly, quarterly and annual financial
statements;
Support the annual financial statement audits by an
independent auditor;
Review historical costs from inception;
Provide accounting and financial information in support of
SEC filings; and
Perform additional ad hoc accounting and financial
advisory services, as requested by CAT LLC.
CAT LLC estimated the annual budget for the costs for Anchin based
on historical costs adjusted for cost of living rate increases, and
projected incremental advisory and support services. The budgeted costs
for the CAT Fee 2024-1 Period are based on the estimated annual costs,
minus actual costs through June and estimated costs for July.
Accounting Firm: Grant Thornton. It is anticipated that the
professional and administration costs for the CAT Fee 2024-1 Period
will include costs related to accounting services performed by Grant
Thornton. CAT LLC anticipates that it will continue to employ Grant
Thornton during CAT Fee 2024-1 Period based on, among other things, the
firm's relevant expertise and fees, which are anticipated to remain in
line with market rates for these financial advisory services. It is
anticipated that Grant Thornton will continue to be engaged as an
independent accounting firm to complete the audit of CAT LLC's
financial statements, in accordance with the requirements of the CAT
NMS Plan. The fees for these services will be paid by CAT LLC to Grant
Thornton. CAT LLC estimated the budget for the accounting costs for
Grant Thornton for the CAT Fee 2024-1 Period based on the anticipated
hourly rates and the anticipated services plus an administrative fee.
Professional and Administration Cost Estimates. CAT LLC estimates
that the budget for professional and administration services during the
CAT Fee 2024-1 Period will be approximately $428,544.50. The budget for
professional and administration services during the CAT Fee 2024-1
Period is calculated based on the Updated 2024 Budget. Specifically,
this estimate was calculated by adding the budgeted amounts for the
professional and administration services for the third and fourth
quarter of 2024 as set forth in the Updated 2024 Budget and subtracting
one half of the actual professional and administration costs
[[Page 73161]]
incurred in July 2024 (as CAT Fee 2024-1 Period began half way through
July, on July 16, 2024).\81\
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\81\ This calculation is ($157,269 + $293,682) - $22,406.50 =
$428,544.50.
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CAT LLC estimated the budget for the professional and
administration costs for the CAT Fee 2024-1 Period based on a review of
past professional and administration costs, potential future
professional and administration needs, the proposed rates and other
contractual issues, as well as discussions with Anchin and Grant
Thornton. This process for estimating the budget for the professional
and administration costs for the CAT Fee 2024-1 Period is the same
process by which CAT LLC estimated the professional and administration
costs for the Original 2024 Budget. The Original 2024 Budget estimated
a budget for professional and administration costs of $395,930 for the
first two quarters of 2024.\82\ The actual costs for professional and
administration services for the first two quarters of 2024, which are
set forth in the Updated 2024 Budget, were $372,977.\83\ There is only
an approximate 6% difference between the estimate and actuals.
Accordingly, CAT LLC believes that the process for estimating the
budgeted professional and administration costs for the CAT Fee 2024-1
Period is reasonable.
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\82\ This calculation is $213,600 + $182,330 = $395,930.
\83\ This calculation is $110,542 + $262,435 = $372,977.
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(b) Changes From Prior Fee Filing
Section 11.3(a)(iii)(B)(B) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to describe the reason for changes in
the line item for professional and administration costs from the prior
CAT Fee filing. As this is the first Prospective CAT Fee Filing, this
filing describes the changes in the professional and administration
costs from the Original 2024 Budget. CAT LLC's proposed annual budget
for professional and administration costs for 2024 had a very minor
increase of $2,666 from the Original 2024 Budget, from $821,264 to
$823,930. CAT LLC's proposed annual budget for professional and
administration costs for 2024 has not changed in a material way for
Anchin and Grant Thornton costs. Correspondingly, the proposed budget
for professional and administration costs for the third and fourth
quarters of 2024 increased by $25,617 (which is approximately 6%), from
$425,334 in the Original 2024 Budget \84\ to $450,951 in the Updated
2024 Budget.\85\
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\84\ This calculation is $150,000 + $275,334 = $425,334.
\85\ This calculation is $157,269 + $293,682 = $450,951.
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(x) Public Relations Costs
(a) Desription [sic] of Public Relations Costs
Section 11.3(a)(iii)(B)(B)(6) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to provide a brief description of the
public relations costs set forth in the budget. The Operating Committee
approved an operating budget for the CAT pursuant to Section 11.1(a) of
the CAT NMS Plan that included $43,225 in public relations costs for
the CAT Fee 2024-1 Period. The public relations costs represent the
fees paid to a public relations firm for professional communications
services to CAT, including media relations consulting, strategy and
execution. By engaging a public relations firm, CAT LLC will be better
positioned to understand and address CAT matters to the benefit of all
market participants.
It is anticipated that the public relations costs for the CAT Fee
2024-1 Period will include costs related to the public relations
services performed by RF[verbar]Binder Partners Inc.
(``RFF[verbar]Binder''). CAT LLC anticipates that it will continue to
employ RFF[verbar]Binder during the CAT Fee 2024-1 Period based on,
among other things, the firm's relevant expertise, history with the
project, and fees, which are anticipated to remain in line with market
rates for these public relations services. It is anticipated that,
during the CAT Fee 2024-1 Period, RF[verbar]Binder will provide
services related to communications with the public regarding the CAT,
including monitoring developments related to the CAT (e.g.,
congressional efforts, public comments and reaction to proposals, press
coverage of the CAT), reporting such developments to CAT LLC, and
drafting and disseminating communications to the public regarding such
developments as well as reporting on developments related to the CAT
(e.g., amendments to the CAT NMS Plan). Public relations services are
important for various reasons, including monitoring comments made by
market participants about the CAT and understanding issues related to
the CAT discussed on the public record.
CAT LLC estimates that the budget for public relations services
during the CAT Fee 2024-1 Period will be approximately $43,225. The
budget for public relations services during the CAT Fee 2024-1 Period
is calculated based on the Updated 2024 Budget. Specifically, this
estimate was calculated by adding the budgeted amounts for the public
relations for the third and fourth quarter of 2024 as set forth in the
Updated 2024 Budget and subtracting one half of the actual public
relations costs incurred in July 2024 (as CAT Fee 2024-1 Period began
half way through July, on July 16, 2024).\86\ The fees for these
services will be paid by CAT LLC to RF[verbar]Binder.
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\86\ This calculation is ($23,450 + $23,625) - $3,850 = $43,225.
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CAT LLC estimated the budget for the public relations costs for the
CAT Fee 2024-1 Period based on a review of past public relations costs,
potential future public relations needs, the proposed rates and other
contractual issues, as well as discussions with RF[verbar]Binder. CAT
LLC also recognized that public relations costs are generally
consistent throughout the year. This process for estimating the budget
for the public relations costs for the CAT Fee 2024-1 Period is the
same process by which CAT LLC estimated the public relations costs for
the Original 2024 Budget. The Original 2024 Budget estimated a budget
for public relations costs of $46,200 for the the [sic] first two
quarters of 2024.\87\ The actual costs for public relations for the
first two quarters of 2024, which are set forth in the Updated 2024
Budget, were $46,200.\88\ They are the same. Accordingly, CAT LLC
believes that the process for estimating the budgeted public relations
costs for the CAT Fee 2024-1 Period is reasonable.
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\87\ This calculation is $23,100 + $23,100 = $46,200.
\88\ This calculation is $23,100 + $23,100 = $46,200.
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(b) Changes From Prior Fee Filing
Section 11.3(a)(iii)(B)(B) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to describe the reason for changes in
the line item for public relations costs from the prior CAT Fee filing.
As this is the first Prospective CAT Fee Filing, this filing describes
the changes in the public relations costs from the Original 2024
Budget. CAT LLC's proposed annual budget for public relations costs for
2024 had a very minor increase of $875 from the Original 2024 Budget to
the Updated 2024 Budget, from $92,400 to $93,275. Correspondingly, the
proposed budget for public relations costs for the third and fourth
quarters of 2024 increased by $875, from $46,200 in the Original 2024
Budget \89\ to $47,075 in
[[Page 73162]]
the Updated 2024 Budget.\90\ The minor change was made to reflect
updated contractual terms.
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\89\ This calculation is $23,100 + $23,100 = $46,200.
\90\ This calculation is $23,450 + $23,625 = $47,075.
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(xi) Reserve
(a) Description of Reserve
Section 11.3(a)(iii)(B)(B) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to provide a brief description of the
reserve costs set forth in the budget. The Operating Committee approved
an operating budget for the CAT pursuant to Section 11.1(a) of the CAT
NMS Plan that includes $27,695,385 for a reserve for the CAT Fee 2024-1
Period. Section 11.1(a)(i) of the CAT NMS Plan states that the budget
shall include a reserve. Section 11.1(a)(ii) of the CAT NMS Plan
further describes the reserve as follows:
For the reserve referenced in paragraph (a)(i) of this Section,
the budget will include an amount reasonably necessary to allow the
Company to maintain a reserve of not more than 25% of the annual
budget. To the extent collected CAT fees exceed CAT costs, including
the reserve of 25% of the annual budget, such surplus shall be used
to offset future fees. For the avoidance of doubt, the Company will
only include an amount for the reserve in the annual budget if the
Company does not have a sufficient reserve (which shall be up to but
not more than 25% of the annual budget). For the avoidance of doubt,
the calculation of the amount of the reserve would exclude the
amount of the reserve from the budget.
In light of the fact that CAT LLC currently does not maintain any
reserve, CAT LLC determined to include a reserve in the amount of 25%
of Budgeted CAT Costs 2024-1 other than the reserve. Accordingly, the
reserve for the CAT Fee 2024-1 Period was calculated by multiplying the
Budgeted CAT Costs 2024-1 other than the reserve amount, which is
$110,781,540, by 25%.
(b) Changes From Prior Fee Filing
Section 11.3(a)(iii)(B)(B) of the CAT NMS Plan requires the fee
filing for a Prospective CAT Fee to describe the reason for changes in
the line item for a reserve from the prior CAT Fee filing. Prior to
July 16, 2024, all CAT costs were paid by the Participants via notes.
Accordingly, to date, CAT LLC has not maintained any reserve. With the
commencement of CAT Fees, CAT LLC proposes to include costs for a
reserve of $27,695,385 in Budgeted CAT Costs 2024-1.
(D) Projected Total Executed Equivalent Share Volume
The calculation of Fee Rate 2024-1 also requires the determination
of the projected total executed equivalent share volume of transactions
in Eligible Securities for the CAT Fee 2024-1 Period. Under the CAT NMS
Plan, the Operating Committee is required to ``reasonably determine the
projected total executed equivalent share volume of all transactions in
Eligible Securities for each relevant period based on the executed
equivalent share volume of all transactions in Eligible Securities for
the prior twelve months.'' \91\ The Operating Committee is required to
base its projection on the prior twelve months, but it may use its
discretion to analyze the likely volume for the upcoming year. Such
discretion would allow the Operating Committee to use its judgment when
estimating projected total executed equivalent share volume if the
volume over the prior twelve months was unusual or otherwise unfit to
serve as the basis of a future volume estimate.\92\
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\91\ Section 11.3(a)(i)(D) of the CAT NMS Plan.
\92\ CAT Funding Model Approval Order at 62651.
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The total executed equivalent share volume of transactions in
Eligible Securities for the 12-month period from June 2023 through May
2024 was 3,980,753,840,905.21 executed equivalent shares. The Operating
Committee has determined to calculate the projected total executed
equivalent share volume for a four-month recovery period for CAT Fee
2024-1 by multiplying by 4/12ths the executed equivalent share volume
for the prior 12 months. The Operating Committee determined that such
an approach was reasonable as the CAT's annual executed equivalent
share volume has remained relatively constant. For example, the
executed equivalent share volume for 2021 was 3,963,697,612,395, the
executed equivalent share volume for 2022 was 4,039,821,841,560.31, and
the executed equivalent share volume for 2023 was 3,868,940,345,680.6.
Accordingly, the projected total executed equivalent share volume for
the four-month period for CAT Fee 2024-1 is projected to be
1,326,917,946,968.403 executed equivalent shares.\93\
---------------------------------------------------------------------------
\93\ This projection was calculated by multiplying
3,980,753,840,905.21 executed equivalent shares by 4/12ths.
---------------------------------------------------------------------------
The projected total executed equivalent share volume of all
transactions in Eligible Securities for the four-month recovery period
for CAT Fee 2024-1 and a description of the calculation of the
projection is provided in this filing in accordance with the
requirement in the CAT NMS Plan to provide such information in a fee
filing for a CAT Fee.\94\
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\94\ Section 11.3(a)(iii)(B) of the CAT NMS Plan.
---------------------------------------------------------------------------
(E) Fee Rate 2024-1
Fee Rate 2024-1 would be calculated by dividing Budgeted CAT Costs
2024-1 by the reasonably projected total executed equivalent share
volume of all transactions in Eligible Securities for the four-month
recovery period for CAT Fee 2024-1, as described in detail above.\95\
Specifically, Fee Rate 2024-1 would be calculated by dividing
$138,476,925 by 1,326,917,946,968.403 executed equivalent shares. As a
result, Fee Rate 2024-1 would be $0.0001043598251997246 per executed
equivalent share. Fee Rate 2024-1 is provided in this filing in
accordance with the requirement in the CAT NMS Plan to provide the Fee
Rate in a fee filing for a CAT Fee.\96\
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\95\ In approving the CAT Funding Model, the Commission stated
that ``[t]he manner in which the Fee Rate for Prospective CAT Costs
will be calculated (i.e., by dividing the CAT costs reasonably
budgeted for the upcoming year by the reasonably projected total
executed equivalent share volume of all transactions in Eligible
Securities for the year) is reasonable.'' CAT Funding Model Approval
Order at 62651.
\96\ Section 11.3(a)(iii)(B) of the CAT NMS Plan.
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(3) Monthly Fees
CEBBs and CEBSs would be required to pay fees for CAT Fee 2024-1 on
a monthly basis for four months, from November 2024 until February
2025.\97\ A CEBB's or CEBS's fee for each month would be calculated
based on the transactions in Eligible Securities executed by the CEBB
or CEBS from the prior month.\98\ Proposed paragraph (a)(3)(A) of the
fee schedule would state that each CAT Executing Broker would receive
its first invoice for CAT Fee 2024-1 in October 2024, and would receive
an invoice for CAT Fee 2024-1 each month thereafter until January 2025.
Proposed paragraph (a)(3)(B) of the fee schedule would state that
``Consolidated Audited Trail, LLC shall provide each CAT Executing
Broker with an invoice for CAT Fee 2024-1 on a monthly basis.'' In
addition, paragraph (b)(1) of the fee schedule states that each CEBB
and CEBS is required to pay its CAT fees ``each month.''
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\97\ See Section 11.3(a)(iii)(A) of the CAT NMS Plan.
\98\ See proposed paragraph (a)(3)(B) of the fee schedule.
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(4) Consolidated Audit Trail Funding Fees
To implement CAT Fee 2024-1, the Exchange proposes to add a new
[[Page 73163]]
paragraph to ``Consolidated Audit Trail Funding Fees'' section of the
Exchange's fee schedule, to include the proposed paragraphs described
below.
(A) Fee Schedule for CAT Fee 2024-1
The CAT NMS Plan states that:
Each Industry Member that is the CAT Executing Broker for the
buyer in a transaction in Eligible Securities (``CAT Executing
Broker for the Buyer'' or ``CEBB'') and each Industry Member that is
the CAT Executing Broker for the seller in a transaction in Eligible
Securities (``CAT Executing Broker for the Seller'' or ``CEBS'')
will be required to pay a CAT Fee for each such transaction in in
Eligible Securities in the prior month based on CAT Data. The CEBB's
CAT Fee or CEBS's CAT Fee (as applicable) for each transaction in
Eligible Securities will be calculated by multiplying the number of
executed equivalent shares in the transaction by one-third and by
the Fee Rate reasonably determined pursuant to paragraph (a)(i) of
this Section 11.3.\99\
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\99\ Section 11.3(a)(iii)(A) of the CAT NMS Plan.
Accordingly, based on the factors discussed above, the Exchange
proposes to add paragraph (a)(3) to the Consolidated Audit Trail
Funding Fees section of its fee schedule. Proposed paragraph (a)(3)
---------------------------------------------------------------------------
would state the following:
(A) Each CAT Executing Broker shall receive its first invoice
for CAT Fee 2024-1 in October 2024, which shall set forth the CAT
Fee 2024-1 fees calculated based on transactions in September 2024,
and shall receive an invoice for CAT Fee 2024-1 for each month
thereafter until January 2025.
(B) Consolidated Audit Trail, LLC shall provide each CAT
Executing Broker with an invoice for CAT Fee 2024-1 on a monthly
basis. Each month, such invoices shall set forth a fee for each
transaction in Eligible Securities executed by the CAT Executing
Broker in its capacity as a CAT Executing Broker for the Buyer
(``CEBB'') and/or the CAT Executing Broker for the Seller (``CEBS'')
(as applicable) from the prior month as set forth in CAT Data. The
fee for each such transaction will be calculated by multiplying the
number of executed equivalent shares in the transaction by the fee
rate of $0.000035 per executed equivalent share.
(C) Notwithstanding the last invoice date of January 2025 for
CAT Fee-2024-1 in paragraph 3(A), CAT Fee 2024-1 shall continue in
effect after January 2025, with each CAT Executing Broker receiving
an invoice for CAT Fee 2024-1 each month, until a new subsequent CAT
Fee is in effect with regard to Industry Members in accordance with
Section 19(b) of the Exchange Act. Consolidated Audit Trail, LLC
will provide notice when CAT Fee 2024-1 will no longer be in effect.
(D) Each CAT Executing Broker shall be required to pay each
invoice for CAT Fee 2024-1 in accordance with paragraph (b).
As noted in the Plan amendment for the CAT Funding Model, ``[a]s a
practical matter, the fee filing would provide the exact fee per
executed equivalent share to be paid for the CAT Fees, by multiplying
the Fee Rate by one-third and describing the relevant number of decimal
places for the fee.'' \100\ Accordingly, proposed paragraph (a)(3)(B)
of the fee schedule would set forth a fee rate of $0.000035 per
executed equivalent share. This fee rate is calculated by multiplying
Fee Rate 2024-1 of $0.0001043598251997246 by one-third, and rounding
the result to six decimal places.\101\ The Operating Committee
determined to use six decimal places to balance the accuracy of the
calculation with the potential systems and other impracticalities of
using additional decimal places in the calculation.
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\100\ CAT Funding Model Approval Order at 62658, n.658.
\101\ Dividing $0.0001043598251997246 by three equals
$0.00003478660839990821. Rounding $0.00003478660839990821 to six
decimal places equals $0.000035.
---------------------------------------------------------------------------
The proposed language in paragraph (a)(3)(A) of the fee schedule
would describe when CAT Executing Brokers would receive their first
monthly invoice for CAT Fee 2024-1. Specifically, CAT Executing Brokers
would receive their first monthly invoice for CAT Fee 2024-1 in October
2024 and the fees set forth in that invoice would be calculated based
on transactions executed in September 2024. The payment for the first
invoice would be required within 30 days after the receipt of the first
invoice (unless a longer period is indicated), as described in
paragraph (b)(2) of the fee schedule.
Proposed paragraph (a)(3)(A) of the fee schedule also would
describe the monthly cadence of the invoices for CAT Fee 2024-1.
Specifically, after the first invoices are provided to CAT Executing
Brokers in October 2024, invoices will be sent to CAT Executing Brokers
each month thereafter until January 2025.
Proposed paragraph (a)(3)(B) of the fee schedule would describe the
invoices for CAT Fee 2024-1. Proposed paragraph (a)(3)(B) of the fee
schedule would state that ``Consolidated Audit Trail, LLC shall provide
each CAT Executing Broker with an invoice for CAT Fee 2024-1 on a
monthly basis.'' Proposed paragraph (a)(3)(B) of the fee schedule also
would describe the fees to be set forth in the invoices for CAT Fee
2024-1. Specifically, it would state that ``[e]ach month, such invoices
shall set forth a fee for each transaction in Eligible Securities
executed by the CAT Executing Broker in its capacity as a CAT Executing
Broker for the Buyer (`CEBB') and/or the CAT Executing Broker for the
Seller (`CEBS') (as applicable) from the prior month as set forth in
CAT Data. The fee for each such transaction will be calculated by
multiplying the number of executed equivalent shares in the transaction
by the fee rate of $0.000035 per executed equivalent share.''
Since CAT Fee 2024-1 is a monthly fee based on actual transaction
volume from the prior month, CAT Fee 2024-1 may collect more or less
than two-thirds of Budgeted CAT Costs 2024-1. To the extent that CAT
Fee 2024-1 collects more than two-thirds of Budgeted CAT Costs 2024-1,
any excess money collected will be used to offset future fees and/or to
fund the reserve for the CAT. To the extent that CAT Fee 2024-1
collects less than two-thirds of Budgeted CAT Costs 2024-1, the budget
for the CAT in the ensuing months will reflect such shortfall.
Furthermore, proposed paragraph (a)(3)(C) of the fee schedule would
describe how long CAT Fee 2024-1 would remain in effect. It would state
that ``[n]otwithstanding the last invoice date of January 2025 for CAT
Fee 2024-1 in paragraph 3(A), CAT Fee 2024-1 shall continue in effect
after January 2025, with each CAT Executing Broker receiving an invoice
for CAT Fee 2024-1 each month, until a new subsequent CAT Fee is in
effect with regard to Industry Members in accordance with Section 19(b)
of the Exchange Act. Consolidated Audit Trail, LLC will provide notice
when CAT Fee 2024-1 will no longer be in effect.''
Finally, proposed paragraph (a)(3)(D) of the fee schedule would set
forth the requirement for the CAT Executing Brokers to pay the invoices
for CAT Fee 2024-1. It would state that ``[e]ach CAT Executing Broker
shall be required to pay each invoice for CAT Fee 2024-1 in accordance
with paragraph (b).''
(B) Manner of Payment
The Exchange proposes to add paragraph (b)(1) to the ``Consolidated
Audit Trail Funding Fees'' section of its fee schedule to describe the
manner of payment of Industry Member CAT fees. The CAT NMS Plan
requires the Operating Committee to establish a system for the
collection of CAT fees.\102\ The Plan Processor has established a
billing system for CAT fees.\103\
[[Page 73164]]
Therefore, the Exchange proposes to require CAT Executing Brokers to
pay CAT Fee 2024-1 in accordance with such system. Accordingly,
proposed paragraph (b)(1) would state that ``[e]ach CAT Executing
Broker shall pay its CAT fees as required pursuant to paragraph (a)
each month to the Consolidated Audit Trail, LLC in the manner
prescribed by the Consolidated Audit Trail, LLC.''
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\102\ Section 11.4 of the CAT NMS Plan.
\103\ The billing process and system are described in CAT Alert
2023-02 as well as the CAT FAQs related to the billing of CAT fees,
the Industry Member CAT Reporter Portal User Guide, the FCAT
Industry Member Onboarding Guide, the FCAT Connectivity Supplement
for Industry Members and the CAT Billing Webinars (dated Sept. 28,
2023 and Nov. 7, 2023), each available on the CAT website.
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(C) Failure to Pay CAT Fees
The CAT NMS Plan further states that:
Participants shall require each Industry Member to pay all
applicable fees authorized under this Article XI within thirty (30)
days after receipt of an invoice or other notice indicating payment
is due (unless a longer payment period is otherwise indicated). If
an Industry Member fails to pay any such fee when due (as determined
in accordance with the preceding sentence), such Industry Member
shall pay interest on the outstanding balance from such due date
until such fee is paid at a per annum rate equal to the lesser of:
(a) the Prime Rate plus 300 basis points; or (b) the maximum rate
permitted by applicable law.\104\
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\104\ Section 11.4 of the CAT NMS Plan.
Accordingly, the Exchange proposes to add this requirement to the
Exchange's fee schedule. Proposed paragraph (b)(2) of the fee schedule
---------------------------------------------------------------------------
would state:
Each CAT Executing Broker shall pay the CAT fees required
pursuant to paragraph (a) within thirty days after receipt of an
invoice or other notice indicating payment is due (unless a longer
payment period is otherwise indicated). If a CAT Executing Broker
fails to pay any such CAT fee when due, such CAT Executing Broker
shall pay interest on the outstanding balance from such due date
until such fee is paid at a per annum rate equal to the lesser of
(i) the Prime Rate plus 300 basis points, or (ii) the maximum rate
permitted by applicable law.
The requirements of paragraph (b)(2) would apply to CAT Fee 2024-1.
(5) CAT Fee Details
The CAT NMS Plan states that:
Details regarding the calculation of a Participant or CAT
Executing Broker's CAT Fees will be provided upon request to such
Participant or CAT Executing Broker. At a minimum, such details
would include each Participant or CAT Executing Broker's executed
equivalent share volume and corresponding fee by (1) Listed Options,
NMS Stocks and OTC Equity Securities, (2) by transactions executed
on each exchange and transactions executed otherwise than on an
exchange, and (3) by buy-side transactions and sell-side
transactions.\105\
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\105\ Section 11.3(a)(iv)(A) of the CAT NMS Plan.
Such information would provide CEBBs and CEBSs with the ability to
understand the details regarding the calculation of their CAT Fee.\106\
CAT LLC will provide CAT Executing Brokers with these details regarding
the calculation of their CAT Fees on their monthly invoice for the CAT
Fees.
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\106\ In approving the CAT Funding Model, the Commission stated
that, ``[i]n the Commission's view, providing CAT Execut[ing]
Brokers information regarding the calculation of their CAT Fees will
aid in transparency and permit CAT Execut[ing] Brokers to confirm
the accuracy of their invoices for CAT Fees.'' CAT Funding Model
Approval Order at 62667.
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In addition, CAT LLC will make certain aggregate statistics
regarding CAT Fees publicly available. Specifically, the CAT NMS Plan
states that, ``[f]or each CAT Fee, at a minimum, CAT LLC will make
publicly available the aggregate executed equivalent share volume and
corresponding aggregate fee by (1) Listed Options, NMS Stocks and OTC
Equity Securities, (2) by transactions executed on each exchange and
transactions executed otherwise than on an exchange, and (3) by buy-
side transactions and sell-side transactions.'' \107\ Such aggregate
statistics will be available on the CAT website.
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\107\ Section 11.3(a)(iv)(B) of the CAT NMS Plan. In approving
the CAT Funding Model, the Commission stated that ``[t]he
publication of the aggregate executed equivalent share volume and
aggregate fee is appropriate because it would allow Participants and
CAT Executing Brokers a high-level validation of executed volume and
fees.'' CAT Funding Model Approval Order at 62667.
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Furthermore, CAT LLC will make publicly available on the CAT
website the total amount invoiced each month that CAT Fee 2024-1 is in
effect as well as the total amount invoiced for CAT Fee 2024-1 for all
months since its commencement. CAT LLC also will make publicly
available on the CAT website the total costs to be collected from
Industry Members for CAT Fee 2024-1.
(6) Financial Accountability Milestones
The CAT NMS Plan states that ``[n]o Participant will make a filing
with the SEC pursuant to Section 19(b) of the Exchange Act regarding
any CAT Fee related to Prospective CAT Costs until the Financial
Accountability Milestone related to Period 4 described in Section 11.6
has been satisfied.'' \108\ The substantive requirements of the
Financial Accountability Milestones related to Period 4 have been
satisfied, as the CAT has completed the requirements for the ``Full
Implementation of CAT NMS Plan Requirements.'' Section 1.1 of the CAT
NMS Plan defines ``Full Implementation of CAT NMS Plan Requirements''
as:
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\108\ Section 11.3(a)(iii)(C) of the CAT NMS Plan.
the point at which the Participants have satisfied all of their
obligations to build and implement the CAT, such that all CAT system
functionality required by Rule 613 and the CAT NMS Plan has been
developed, successfully tested, and fully implemented at the initial
Error Rates specified by Section 6.5(d)(i) or less, including
functionality that efficiently permits the Participants and the
Commission to access all CAT Data required to be stored in the
Central Repository pursuant to Section 6.5(a), including Customer
Account Information, Customer-ID, Customer Identifying Information,
and Allocation Reports, and to analyze the full lifecycle of an
order across the national market system, from order origination
through order execution or order cancellation, including any related
allocation information provided in an Allocation Report. This
Financial Accountability Milestone shall be considered complete as
of the date identified in a Quarterly Progress Report meeting the
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requirements of Section 6.6(c).
Under Section 1.1 of the CAT NMS Plan, this Financial
Accountability Milestone is considered complete as of the date
identified in the Participants' Quarterly Progress Reports. As
indicated by the Participants' Quarterly Progress Report for the second
and third quarter of 2024,\109\ Full Implementation of CAT NMS Plan
Requirements was completed on July 15, 2024.
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\109\ Q2 & Q3 2024 Quarterly Progress Report (July 29, 2024).
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(A) Transaction Reporting and Regulatory Access
The CAT system functionality required by Rule 613 and the CAT NMS
Plan related to order and transaction data has been developed,
successfully tested, and fully implemented, including the requirements
related to regulatory access. The implementation of CAT requirements
related to order and transaction data occurred over four phases: Phases
2a, 2b, 2c and 2d.\110\ As described in the Quarterly Progress Reports
and summarized below, each of these phases has been fully
implemented.\111\
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\110\ The SEC granted exemptive relief from certain provisions
of the CAT NMS Plan to allow for the phased implementation of
Industry Member reporting via five phases addressing the reporting
requirements for Phase 2a Industry Member Data, Phase 2b Industry
Member Data, Phase 2c Industry Member Data, Phase 2d Industry Member
Data and Phase 2e Industry Member Data. Securities Exchange Rel. No.
88702 (Apr. 20, 2020), 85 FR 23075 (Apr. 24, 2020) (``Phased
Reporting Exemptive Relief Order'').
\111\ See, e.g., Q1 2024 Quarterly Progress Report (Apr. 30,
2024).
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(i) Phase 2a
The Quarterly Progress Reports state that ``Phase 2a was fully
implemented
[[Page 73165]]
as of October 26, 2020.'' \112\ The Phase 2a Industry Member Data is
described in detail in the SEC's Phased Reporting Exemptive Relief
Order, and includes the following data related to Eligible Securities
that are equities:
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\112\ See, e.g., Q1 2024 Quarterly Progress Report (Apr. 30,
2024).
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All events and scenarios covered by OATS, which includes
information related to the receipt or origination of orders, order
transmittal, and order modifications, cancellations and executions;
Reportable Events for: (1) proprietary orders, including
market maker orders, for Eligible Securities that are equities; (2)
electronic quotes in listed equity Eligible Securities (i.e., NMS
stocks) sent to a national securities exchange or FINRA's Alternative
Display Facility (``ADF''); (3) electronic quotes in unlisted Eligible
Securities (i.e., OTC Equity Securities) received by an Industry Member
operating an interdealer quotation system (``IDQS''); and (4)
electronic quotes in unlisted Eligible Securities sent to an IDQS or
other quotation system not operated by a Participant or Industry
Member;
Firm Designated IDs (``FDIDs''), which Industry Members
must report to the CAT as required by Sections 6.3(d)(i)(A) and
6.4(d)(ii)(C) of the CAT NMS Plan;
Industry Members would be required to report all street
side representative orders, including both agency and proprietary
orders and mark such orders as representative orders, except in certain
limited exceptions as described in the Industry Member Technical
Specifications;
The link between the street side representative order and
the order being represented when: (1) the representative order was
originated specifically to represent a single order received either
from a customer or another broker-dealer; and (2) there is (a) an
existing direct electronic link in the Industry Member's system between
the order being represented and the representative order and (b) any
resulting executions are immediately and automatically applied to the
represented order in the Industry Member's system;
Manual and Electronic Capture Time for Manual Order
Events;
Special handling instructions for the original receipt or
origination of an order during Phase 2a; and
When routing an order, whether the order was routed as an
intermarket sweep order (``ISO'').
In Phase 2a, Industry Members were not required to report
modifications of a previously routed order in certain limited
instances, nor were they required to report a cancellation of an order
received from a Customer after the order has been executed.\113\
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\113\ Phased Reporting Exemptive Relief Order at 23076-78.
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(ii) Phase 2b
The Quarterly Progress Reports state that ``Phase 2b was fully
implemented as of January 4, 2021.'' \114\ The Phase 2b Industry Member
Data is described in detail in the SEC's Phased Reporting Exemptive
Relief Order, and includes the Industry Member Data related to Eligible
Securities that are options and related to simple electronic option
orders, excluding electronic paired option orders. A simple electronic
option order is an order to buy or sell a single option that is not
related to or dependent on any other transaction for pricing and timing
of execution that is either received or routed electronically by an
Industry Member. Electronic receipt of an order is defined as the
initial receipt of an order by an Industry Member in electronic form in
standard format directly into an order handling or execution system.
Electronic routing of an order is the routing of an order via
electronic medium in standard format from one Industry Member's order
handling or execution system to an exchange or another Industry Member.
An electronic paired option order is an electronic option order that
contains both the buy and sell side that is routed to another Industry
Member or exchange for crossing and/or price improvement as a single
transaction on an exchange. Responses to auctions of simple orders and
paired simple orders would be reportable in Phase 2b. Furthermore,
combined orders in options would be treated in Phase 2b in the same way
as equity representative orders are treated in Phase 2a. A combined
order would mean, as permitted by SRO rules, a single, simple order in
Listed Options created by combining individual, simple orders in Listed
Options from a customer with the same exchange origin code before
routing to an exchange. During Phase 2b, the single combined order sent
to an exchange must be reported and marked as a combined order, but the
linkage to the underlying orders is not required to be reported until
Phase 2d.\115\
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\114\ See, e.g., Q1 2024 Quarterly Progress Report (Apr. 30,
2024).
\115\ Phased Reporting Exemptive Relief Order at 23078.
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(iii) Phase 2c
The Quarterly Progress Reports state that ``Phase 2c was
implemented as of April 26, 2021.'' \116\ The Phase 2c Industry Member
Data is described in detail in the SEC's Phased Reporting Exemptive
Relief Order. That Order states that ``Phase 2c Industry Member Data''
is Industry Member Data related to Eligible Securities that are
equities other than Phase 2a Industry Member Data, Phase 2d Industry
Member Data, or Phase 2e Industry Member Data. Specifically, the Phase
2c Industry Member Data includes Industry Member Data that is related
to Eligible Securities that are equities and that is related to: (1)
Allocation Reports as required to be recorded and reported to the
Central Repository pursuant to Section 6.4(d)(ii)(A)(1) of the CAT NMS
Plan; (2) quotes in unlisted Eligible Securities sent to an IDQS
operated by a CAT Reporter (reportable by the Industry Member sending
the quotes) (except for quotes reportable in Phase 2d, as discussed
below); (3) electronic quotes in listed equity Eligible Securities
(i.e., NMS stocks) that are not sent to a national securities exchange
or FINRA's Alternative Display Facility; (4) reporting changes to
client instructions regarding modifications to algorithms; (5) marking
as a representative order any order originated to work a customer order
in price guarantee scenarios, such as a guaranteed VWAP; (6) flagging
rejected external routes to indicate a route was not accepted by the
receiving destination; (7) linkage of duplicate electronic messages
related to a Manual Order Event between the electronic event and the
original manual route; (8) special handling instructions on order route
reports (other than the ISO, which is required to be reported in Phase
2a); (9) quote identifier on trade events; (10) reporting of LTIDs (if
applicable) for accounts with Reportable Events that are reportable to
CAT as of and including Phase 2c; (11) reporting of date account opened
or Account Effective Date (as applicable) for accounts and reporting of
a flag indicating the Firm Designated ID type as account or
relationship; (12) order effective time for orders that are received by
an Industry Member and do not become effective until a later time; (13)
the modification or cancellation of an internal route of an order; and
(14) linkages to the customer order(s) being represented for
representative order scenarios, including agency average price trades,
net trades, aggregated orders, and disconnected Order Management System
(``OMS'')--Execution Management System (``EMS'')
[[Page 73166]]
scenarios, as required in the Industry Member Technical
Specifications.\117\
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\116\ See, e.g., Q1 2024 Quarterly Progress Report (Apr. 30,
2024).
\117\ Phase Reporting Exemptive Relief Order at 23078-79.
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Phase 2c Industry Member Data also includes electronic quotes that
are provided by or received in a CAT Reporter's order/quote handling or
execution systems in Eligible Securities that are equities and are
provided by an Industry Member to other market participants off a
national securities exchange under the following conditions: (1) an
equity bid or offer is displayed publicly or has been communicated (a)
for listed securities to the ADF operated by FINRA; or (b) for unlisted
equity securities to an ``interdealer quotation system,'' as defined in
FINRA Rule 6420(c); or (2) an equity bid or offer which is accessible
electronically by customers or other market participants and is
immediately actionable for execution or routing; i.e., no further
manual or electronic action is required by the responder providing the
quote in order to execute or cause a trade to be executed). With
respect to OTC Equity Securities, OTC Equity Securities quotes sent by
an Industry Member to an IDQS operated by an Industry Member CAT
Reporter (other than such an IDQS that does not match and execute
orders) are reportable by the Industry Member sending them in Phase 2c.
Accordingly, any response to a request for quote or other form of
solicitation response provided in a standard electronic format (e.g.,
FIX) that meets this quote definition (i.e., an equity bid or offer
which is accessible electronically by customers or other market
participants and is immediately actionable for execution or routing)
would be reportable in Phase 2c.\118\
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\118\ Id. at 23079.
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(iv) Phase 2d
The Quarterly Progress Reports state that ``Phase 2d was fully
implemented as of December 13, 2021.'' \119\ The Phase 2d Industry
Member Data is described in detail in the SEC's Phased Reporting
Exemptive Relief Order. ``Phase 2d Industry Member Data'' is Industry
Member Data that is related to Eligible Securities that are options
other than Phase 2b Industry Member Data, Industry Member Data that is
related to Eligible Securities that are equities other than Phase 2a
Industry Member Data or Phase 2c Industry Member Data, and Industry
Member Data other than Phase 2e Industry Member Data. Phase 2d Industry
Member Data includes with respect to the Eligible Securities that are
options: (1) simple manual orders; (2) electronic and manual paired
orders; (3) all complex orders with linkages to all CAT-reportable
legs; (4) LTIDs (if applicable) for accounts with Reportable Events for
Phase 2d; (5) date account opened or Account Effective Date (as
applicable) for accounts with an LTID and flag indicating the Firm
Designated ID type as account or relationship for such accounts; (6)
Allocation Reports as required to be recorded and reported to the
Central Repository pursuant to Section 6.4(d)(ii)(A)(1) of the CAT NMS
Plan; (7) the modification or cancellation of an internal route of an
order; and (8) linkage between a combined order and the original
customer orders. Phase 2d Industry Member Data also would include
electronic quotes that are provided by or received in a CAT Reporter's
order/quote handling or execution systems in Eligible Securities that
are options and are provided by an Industry Member to other market
participants off a national securities exchange under the following
conditions: a listed option bid or offer which is accessible
electronically by customers or other market participants and is
immediately actionable (i.e., no further action is required by the
responder providing the quote in order to execute or cause a trade to
be executed). Accordingly, any response to a request for quote or other
form of solicitation response provided in standard electronic format
(e.g., FIX) that meets this definition is reportable in Phase 2d for
options.\120\
---------------------------------------------------------------------------
\119\ See, e.g., Q1 2024 Quarterly Progress Report (Apr. 30,
2024).
\120\ Phase Reporting Exemptive Relief Order at 23079.
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Phase 2d Industry Member Data also includes with respect to
Eligible Securities that are options or equities (1) receipt time of
cancellation and modification instructions through Order Cancel Request
and Order Modification Request events; (2) modifications of previously
routed orders in certain instances; and (3) OTC Equity Securities
quotes sent by an Industry Member to an IDQS operated by an Industry
Member CAT Reporter that does not match and execute orders. In
addition, subject to any exemptive or other relief, Phase 2d Industry
Member Data includes verbal or manual quotes on an exchange floor or in
the over-the-counter market, where verbal quotes and manual quotes are
defined as bids or offers in Eligible Securities provided verbally or
that are provided or received other than via a CAT Reporter's order
handling and execution system (e.g., quotations provided via email or
instant messaging).\121\
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\121\ Id. at 23079-80.
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(v) Regulatory Access To Order and Transaction Data
The Financial Accountability Milestone related to Period 4 requires
that CAT provide functionality that permits the Participants and the
Commission to access Phase 2a, 2b, 2c and 2d data and to analyze the
full lifecycle of an order across the national market system, from
order origination through order execution or order cancellation,
including any related allocation information provided in an Allocation
Report. As CAT LLC reported on its Quarterly Progress Reports, the
query tool functionality incorporating the data from Phases 2a, 2b, 2c
and 2d was available to the Participants and to the Commission as of
December 31, 2021.\122\
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\122\ See, e.g., Q1 2024 Quarterly Progress Report (Apr. 30,
2024).
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(B) CAIS Reporting and Regulatory Access
The CAT System functionality required by Rule 613 and the CAT NMS
Plan related to Customer information has been developed, successfully
tested, and fully implemented, including the requirements related to
regulatory access. The implementation of CAT requirements related to
Customer information occurred during Phase 2e. As described in the
Quarterly Progress Reports and summarized below, Phase 2e has been
fully implemented as of May 31, 2024.\123\ Furthermore, because a month
of customer and account information data is necessary to create report
cards with regard to such data, the publication of monthly report cards
with respect to customer and account information commenced on July 15,
2024.\124\ Accordingly, the Financial Accountability Milestone related
to Period 4 was completed on July 15, 2024.
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\123\ Id.
\124\ Q2 & Q3 2024 Quarterly Progress Report (July 29, 2024).
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(i) Phase 2e
The Q2 & Q3 2024 Quarterly Progress Report indicates that Phase 2e
was fully implemented as of May 31, 2024.\125\ Phase 2e Industry Member
Data is described in detail in the SEC's Phased Reporting Exemptive
Relief Order. ``Phase 2e Industry Member Data'' includes ``Customer
Account Information and Customer Identifying Information, other than
LTIDs, date account opened/Account Effective Date and Firm Designated
ID type flag previously reported to the CAT.'' \126\
[[Page 73167]]
LTIDs and Account Effective Date are both provided in Phases 2c and 2d
in certain circumstances, as discussed above. Section 1.1 of the CAT
NMS Plan defines the term ``Customer Account Information'' to
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\125\ Id.
\126\ Phase Reporting Exemptive Relief Order at 23080.
include, but not be limited to, account number, account type,
customer type, date account opened, and large trader identifier (if
applicable); except, however, that (a) in those circumstances in
which an Industry Member has established a trading relationship with
an institution but has not established an account with that
institution, the Industry Member will (i) provide the Account
Effective Date in lieu of the ``date account opened''; (ii) provide
the relationship identifier in lieu of the ``account number''; and
(iii) identify the ``account type'' as a ``relationship''; (b) in
those circumstances in which the relevant account was established
prior to the implementation date of the CAT NMS Plan applicable to
the relevant CAT Reporter (as set forth in Rule 613(a)(3)(v) and
(vi)), and no ``date account opened'' is available for the account,
the Industry Member will provide the Account Effective Date in the
following circumstances: (i) where an Industry Member changes back
office providers or clearing firms and the date account opened is
changed to the date the account was opened on the new back office/
clearing firm system; (ii) where an Industry Member acquires another
Industry Member and the date account opened is changed to the date
the account was opened on the post-merger back office/clearing firm
system; (iii) where there are multiple dates associated with an
account in an Industry Member's system, and the parameters of each
date are determined by the individual Industry Member; and (iv)
where the relevant account is an Industry Member proprietary
---------------------------------------------------------------------------
account.
The term ``Customer Identifying Information'' is defined in Section
1.1 of the CAT NMS Plan to mean
information of sufficient detail to identify a Customer, including,
but not limited to, (a) with respect to individuals: name, address,
date of birth, individual tax payer identification number
(``ITIN'')/social security number (``SSN''), individual's role in
the account (e.g., primary holder, joint holder, guardian, trustee,
person with the power of attorney); and (b) with respect to legal
entities: name, address, Employer Identification Number (``EIN'')/
Legal Entity Identifier (``LEI'') or other comparable common entity
identifier, if applicable; provided, however, that an Industry
Member that has an LEI for a Customer must submit the Customer's LEI
in addition to other information of sufficient detail to identify a
Customer.
(ii) Regulatory Access to Customer Information
The Financial Accountability Milestone related to Period 4 requires
that CAT provide functionality that permits the Participants and the
Commission to access Phase 2e Industry Member Data (in addition to the
Phase 2a, 2b, 2c and 2d Industry Member Data, as discussed above). As
CAT LLC reported on its Q2 & Q3 Quarterly Progress Report, regulators
had efficient access to Phase 2e Industry Member Data via the query
tool functionality required under the CAT NMS Plan by July 15,
2024.\127\
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\127\ Q2 & Q3 2024 Quarterly Progress Report (July 29, 2024).
---------------------------------------------------------------------------
(C) Error Rate
The Financial Accountability Milestones related to Period 4 require
the implementation of the CAT System ``at the initial Error Rates
specified by Section 6.5(d)(i) or less.'' The average overall error
rate as of July 15, 2024, was less than 5%, which is the initial Error
Rate specified by Section 6.5(d)(i) of the CAT NMS Plan. The average
overall error rate was calculated by dividing the compliance errors by
processed records.
(7) Participant Invoices
While CAT Fees charged to Industry Members become effective in
accordance with the requirements of Section 19(b) of the Exchange
Act,\128\ CAT fees charged to Participants are implemented via an
approval of the CAT fees by the Operating Committee in accordance with
the requirements of the CAT NMS Plan.\129\ On July 31, 2024, the
Operating Committee approved the Participant fee related to CAT Fee
2024-1. Specifically, pursuant to the requirements of CAT NMS
Plan,\130\ each Participant would be required to pay a CAT fee
calculated using the fee rate of $0.000035, which is the same fee rate
that applies to CEBBs and CEBSs. Like CEBBs and CEBSs, each Participant
would be required to pay such CAT fees on a monthly basis for four
months, from November 2024 until February 2025, and each Participant's
fee for each month would be calculated based on the transactions in
Eligible Securities executed on the applicable exchange (for the
Participant exchanges) or otherwise than on the exchange (for FINRA) in
the prior month. Accordingly, each Participant will receive its first
invoice in October 2024, and would receive an invoice each month
thereafter until January 2025. Like with the CAT Fee 2024-1 applicable
to CEBBs and CEBSs as described in proposed paragraph (a)(3)(C) of the
fee schedule, notwithstanding the last invoice date of January 2025,
Participants will continue to receive invoices for this fee each month
until a new subsequent CAT Fee is in effect with regard to Industry
Members. Furthermore, Section 11.4 of the CAT NMS Plan states that each
Participant is required to pay such invoices as required by Section
3.7(b) of the CAT NMS Plan. Section 3.7(b) states, in part, that
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\128\ Section 11.3(a)(i)(A)(I) of the CAT NMS Plan.
\129\ CAT Funding Model Approval Order at 62659.
\130\ See Section 11.3(a)(ii) and Appendix B of the CAT NMS
Plan.
[e]ach Participant shall pay all fees or other amounts required to
be paid under this Agreement within thirty (30) days after receipt
of an invoice or other notice indicating payment is due (unless a
longer payment period is otherwise indicated) (the ``Payment
Date''). The Participant shall pay interest on the outstanding
balance from the Payment Date until such fee or amount is paid at a
per annum rate equal to the lesser of: (i) Prime Rate plus 300 basis
---------------------------------------------------------------------------
points; or (ii) the maximum rate permitted by applicable law.
(b) Statutory Basis
The Exchange believes the proposed rule change is consistent with
the requirements of the Exchange Act. The Exchange believes that the
proposed rule change is consistent with Section 6(b)(5) of the
Act,\131\ which requires, among other things, that the Exchange's rules
must be designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, and, in
general, to protect investors and the public interest, and not designed
to permit unfair discrimination between customers, issuers, brokers and
dealers. The Exchange also believes that the proposed rule change is
consistent with the provisions of Section 6(b)(4) of the Act,\132\
because it provides for the equitable allocation of reasonable dues,
fees and other charges among members and issuers and other persons
using its facilities and does not unfairly discriminate between
customers, issuers, brokers or dealers. The Exchange further believes
that the proposed rule change is consistent with Section 6(b)(8) of the
Act,\133\ which requires that the Exchange's rules not impose any
burden on competition that is not necessary or appropriate in
furtherance of the purpose of the Exchange Act. These provisions also
require that the Exchange be ``so organized and [have] the capacity to
be able to carry out the purposes'' of the Act and ``to comply, and . .
. to enforce compliance by its members and persons associated with its
members,'' with the provisions of the Exchange Act.\134\ Accordingly, a
reasonable reading of the Act indicates that it intended that
regulatory funding be sufficient to
[[Page 73168]]
permit an exchange to fulfill its statutory responsibility under the
Act, and contemplated that such funding would be achieved through
equitable assessments on the members, issuers, and other users of an
exchange's facilities.
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\131\ 15 U.S.C. 78f(b)(6).
\132\ 15 U.S.C. 78f(b)(4).
\133\ 15 U.S.C. 78f(b)(8).
\134\ See Section 6(b)(1) of the Exchange Act.
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The Exchange believes that this proposal is consistent with the Act
because it implements provisions of the Plan and is designed to assist
the Exchange in meeting regulatory obligations pursuant to the Plan. In
approving the Plan, the SEC noted that the Plan ``is necessary and
appropriate in the public interest, for the protection of investors and
the maintenance of fair and orderly markets, to remove impediments to,
and perfect the mechanism of a national market system, or is otherwise
in furtherance of the purposes of the Act.'' \135\ To the extent that
this proposal implements the Plan and applies specific requirements to
Industry Members, the Exchange believes that this proposal furthers the
objectives of the Plan, as identified by the SEC, and is therefore
consistent with the Act.
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\135\ CAT NMS Plan Approval Order at 84697.
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The Exchange believes that the proposed fees to be paid by the
CEBBs and CEBSs are reasonable, equitably allocated and not unfairly
discriminatory. First, the CAT Fee 2024-1 fees to be collected are
directly associated with the budgeted costs of establishing and
maintaining the CAT, where such costs include Plan Processor costs and
costs related to technology, legal, consulting, insurance, professional
and administration, and public relations costs.
The proposed CAT Fee 2024-1 fees would be charged to Industry
Members in support of the maintenance of a consolidated audit trail for
regulatory purposes. The proposed fees, therefore, are consistent with
the Commission's view that regulatory fees be used for regulatory
purposes and not to support the Exchange's business operations. The
proposed fees would not cover Exchange services unrelated to the CAT.
In addition, any surplus would be used as a reserve to offset future
fees. Given the direct relationship between CAT fees and CAT costs, the
Exchange believes that the proposed fees are reasonable, equitable and
not unfairly discriminatory.
As further discussed below, the SEC approved the CAT Funding Model,
finding it was reasonable and that it equitably allocates fees among
Participants and Industry Members. The Exchange believes that the
proposed fees adopted pursuant to the CAT Funding Model approved by the
SEC are reasonable, equitably allocated and not unfairly
discriminatory.
(1) Implementation of CAT Funding Model in CAT NMS Plan
Section 11.1(b) of the CAT NMS Plan states that ``[t]he
Participants shall file with the SEC under Section 19(b) of the
Exchange Act any such fees on Industry Members that the Operating
Committee approves.'' Per Section 11.1(b) of the CAT NMS Plan, the
Exchange has filed this fee filing to implement the Industry Member CAT
fees included in the CAT Funding Model. The Exchange believes that this
proposal is consistent with the Exchange Act because it is consistent
with, and implements, the CAT Funding Model in the CAT NMS Plan, and is
designed to assist the Exchange and its Industry Members in meeting
regulatory obligations pursuant to the CAT NMS Plan. In approving the
CAT NMS Plan, the SEC noted that the Plan ``is necessary and
appropriate in the public interest, for the protection of investors and
the maintenance of fair and orderly markets, to remove impediments to,
and perfect the mechanism of a national market system, or is otherwise
in furtherance of the purposes of the Act.'' \136\ Similarly, in
approving the CAT Funding Model, the SEC concluded that the CAT Funding
Model met this standard.\137\ As this proposal implements the Plan and
the CAT Funding Model described therein, and applies specific
requirements to Industry Members in compliance with the Plan, the
Exchange believes that this proposal furthers the objectives of the
Plan, as identified by the SEC, and is therefore consistent with the
Exchange Act.
---------------------------------------------------------------------------
\136\ Id. at 84696.
\137\ CAT Funding Model Approval Order at 62686.
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(2) Calculation of Fee Rate for CAT Fee 2024-1 Is Reasonable
The SEC has determined that the CAT Funding Model is reasonable and
satisfies the requirements of the Exchange Act. Specifically, the SEC
has concluded that the method for determining CAT Fees as set forth in
Section 11.3 of the CAT NMS Plan, including the formula for calculating
the Fee Rate, the identification of the parties responsible for payment
and the transactions subject to the fee rate for CAT Fees, is
reasonable and satisfies the Exchange Act.\138\ In each respect, as
discussed above, CAT Fee 2024-1 is calculated, and would be applied, in
accordance with the requirements applicable to CAT Fees as set forth in
the CAT NMS Plan. Furthermore, as discussed below, the Exchange
believes that each of the figures for the variables in the SEC-approved
formula for calculating the fee rate for CAT Fee 2024-1 is reasonable
and consistent with the Exchange Act. Calculation of Fee Rate 2024-1
for CAT Fee 2024-1 requires the figures for Budgeted CAT Costs 2024-1,
the executed equivalent share volume for the prior twelve months, the
determination of CAT Fee 2024-1 Period, and the projection of the
executed equivalent share volume for CAT Fee 2024-1 Period. Each of
these variables is reasonable and satisfies the Exchange Act, as
discussed throughout this filing.
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\138\ Id. at 62662-63.
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(A) Budgeted CAT Costs 2024-1
The formula for calculating a Fee Rate requires the amount of
Budgeted CAT Costs to be recovered. Specifically, Section
11.3(a)(iii)(B) of the CAT NMS Plan requires a fee filing to provide:
The budget for the upcoming year (or remainder of the year, as
applicable), including a brief description of each line item in the
budget, including (1) the technology line items of cloud hosting
services, operating fees, CAIS operating fees, change request fees,
and capitalized developed technology costs, (2) legal, (3)
consulting, (4) insurance, (5) professional and administration and
(6) public relations costs, a reserve and/or such other categories
as reasonably determined by the Operating Committee to be included
in the budget, and the reason for changes in each such line item
from the prior CAT fee filing.
In accordance with this requirement, the Exchange has set forth the
amount and type of Budgeted CAT Costs 2024-1 for each of these
categories above.
Section 11.3(a)(iii)(B) of the CAT NMS Plan also requires that the
fee filing provide ``sufficient detail to demonstrate that the budget
for the upcoming year, or part of year, as applicable, is reasonable
and appropriate.'' As discussed below, the Exchange believes that the
budget for the CAT Fee 2024-1 Period is ``reasonable and appropriate.''
Each of the costs included in CAT Fee 2024-1 are reasonable and
appropriate because the costs are consistent with standard industry
practice, based on the need to comply with the requirements of the CAT
NMS Plan, incurred subject to negotiations performed on an arm's length
basis, and/or are consistent with the needs of any legal entity,
particularly one with no employees.
(i) Technology: Cloud Hosting Services
In approving the CAT Funding Model, the Commission recognized that
it is appropriate to recover budgeted costs related to cloud hosting
services as a
[[Page 73169]]
part of CAT Fees.\139\ CAT LLC determined that the budgeted costs
related to cloud hosting services described in this filing are
reasonable and should be included as a part of Budgeted CAT Costs 2024-
1. As described above, the cloud hosting services costs reflect, among
other things, the breadth of the CAT cloud activities, data volumes far
in excess of the original volume estimates, the need for specialized
cloud services given the volume and unique nature of the CAT, the
processing time requirements of the Plan, and regular efforts to seek
to minimize costs where permissible under the Plan. CAT LLC determined
that use of cloud hosting services is necessary for implementation of
the CAT, particularly given the substantial data volumes associated
with the CAT, and that the fees for cloud hosting services negotiated
by FCAT were reasonable, taking into consideration a variety of
factors, including the expected volume of data and the breadth of
services provided and market rates for similar services.\140\ Indeed,
the actual costs of the CAT are far in excess of the original estimated
costs of the CAT due to various factors, including the higher volumes
and greater complexity of the CAT than anticipated when Rule 613 was
originally adopted.
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\139\ Section 11.3(a)(iii)(B)(B)(1) of the CAT NMS Plan.
\140\ For a discussion of the amount and type of cloud hosting
services fees, see Section 3(a)(2)(C)(i) above.
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To comply with the requirements of the Plan, the breadth of the
cloud activities related to the CAT is substantial. The cloud services
not only include the production environment for the CAT, but they also
include two industry testing environments, support environments for
quality assurance and stress testing and disaster recovery
capabilities. Moreover, the cloud storage costs are driven by the
requirements of the Plan, which requires the storage of multiple
versions of the data, from the original submitted version of the data
through various processing steps, to the final version of the data.
Data volume is a significant driver of costs for cloud hosting
services. When the Commission adopted the CAT NMS Plan in 2016, it
estimated that the CAT would need to receive 58 billion records per day
\141\ and that annual operating costs for the CAT would range from
$36.5 million to $55 million.\142\ Through 2023, the actual data
volumes have been five times that original estimate. The data volumes
to date for 2024 have continued this trend.
---------------------------------------------------------------------------
\141\ Appendix D-4 of the CAT NMS Plan at n.262.
\142\ CAT NMS Plan Approval Order at 84801.
---------------------------------------------------------------------------
In addition to the effect of the data volume on the cloud hosting
costs, the processing timelines set forth in the Plan contribute to the
cloud hosting costs. Although CAT LLC has proactively sought to manage
cloud hosting costs while complying with the Plan, including through
requests to the Commission for exemptive relief and amendments to the
CAT NMS Plan, stringent CAT NMS Plan requirements do not allow for any
material flexibility in cloud architecture design choices, processing
timelines (e.g., the use of non-peak processing windows), or lower-cost
storage tiers. As a result, the required CAT processing timelines
contribute to the cloud hosting costs of the CAT.
The costs for cloud hosting services also reflect the need for
specialized cloud hosting services given the data volume and unique
processing needs of the CAT. The data volume as well as the data
processing needs of the CAT necessitate the use of cloud hosting
services. The equipment, power and services required for an on-premises
data model, the alternative to cloud hosting services, would be cost
prohibitive. Moreover, as CAT was being developed, there were limited
cloud hosting providers that could satisfy all the necessary CAT
requirements, including the operational and security criteria. Over
time, more providers offering cloud hosting services that would satisfy
these criteria have entered the market. CAT LLC will continue to
evaluate alternative cloud hosting services, recognizing that the time
and cost to move to an alternative cloud provider would be substantial.
The reasonableness of the cloud hosting services costs is further
supported by key cost discipline mechanisms for the CAT--a cost-based
funding structure, cost transparency, cost management efforts
(including regular efforts to lower compute and storage costs where
permitted by the Plan) and oversight. Together, these mechanisms help
ensure the ongoing reasonableness of the CAT's costs and the level of
fees assessed to support those costs.\143\
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\143\ See Securities Exchange Act Rel. No. 97151 (Mar. 15,
2023), 88 FR 17086, 17117 (Mar. 21, 2023) (describing key cost
discipline mechanisms for the CAT).
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(ii) Technology: Operating Fees
In approving the CAT Funding Model, the SEC recognized that it is
appropriate to recover budgeted costs related to operating fees as a
part of CAT Fees.\144\ CAT LLC determined that the budgeted costs
related to operating fees described in this filing are reasonable and
should be included as a part of Budgeted CAT Costs 2024-1.
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\144\ Section 11.3(a)(iii)(B)(B)(1) of the CAT NMS Plan.
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The operating fees would include the negotiated fees paid by CAT
LLC to the Plan Processor to operate and maintain the system for order-
related information and to perform business operations related to the
system, including compliance, security, testing, training,
communications with the industry (e.g., management of the FINRA CAT
Helpdesk, FAQs, website and webinars) and program management. CAT LLC
determined that the selection of FCAT as the Plan Processor was
reasonable and appropriate given its expertise with securities
regulatory reporting, after a process of considering other potential
candidates.\145\ CAT LLC also determined that the fixed price contract,
negotiated on an arm's length basis with the goals of managing costs
and receiving services required to comply with the CAT NMS Plan and
Rule 613, was reasonable and appropriate, taking into consideration a
variety of factors, including the breadth of services provided and
market rates for similar types of activity.\146\ The services to be
performed by FCAT for CAT Fee 2024-1 Period and the budgeted costs
related to such services are described above.\147\
---------------------------------------------------------------------------
\145\ See Section 3(a)(2)(C)(ii) above.
\146\ Id.
\147\ Id.
---------------------------------------------------------------------------
The operating costs also include costs related to the receipt of
market data. CAT LLC anticipates continuing to receive certain market
data from Exegy during the CAT Fee 2024-1 Period. CAT LLC anticipates
that Exegy will continue to provide data that meets the SIP Data
requirements of the CAT NMS Plan and that the fees are reasonable and
in line with market rates for market data received.\148\
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\148\ Id.
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(iii) Technology: CAIS Operating Fees
In approving the CAT Funding Model, the SEC recognized that it is
appropriate to recover budgeted costs related to CAIS operating fees as
a part of CAT Fees.\149\ CAT LLC determined that the budgeted costs
related to CAIS operating fees described in this filing are reasonable
and should be included as a part of Budgeted CAT Costs 2024-1. The CAIS
operating fees would include the fees paid to the Plan Processor to
operate and maintain CAIS and to
[[Page 73170]]
perform the business operations related to the system, including
compliance, security, testing, training, communications with the
industry (e.g., management of the FINRA CAT Helpdesk, FAQs, website and
webinars) and program management. CAT LLC determined that the fees for
FCAT's CAIS-related services, negotiated on an arm's length basis with
the goals of managing costs and receiving services required to comply
with the CAT NMS Plan, taking into consideration a variety of factors,
including the services to be provided and market rates for similar
types of activity, are reasonable and appropriate.\150\ The services to
be performed by FCAT for the CAT Fee 2024-1 Period and the budgeted
costs for such services are described above.\151\
---------------------------------------------------------------------------
\149\ Section 11.3(a)(iii)(B)(B)(1) of the CAT NMS Plan.
\150\ See Section 3(a)(2)(C)(iii) above.
\151\ Id.
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(iv) Technology: Change Request Fees
In approving the CAT Funding Model, the SEC recognized that it is
appropriate to recover budgeted costs related to change request fees as
a part of CAT Fees.\152\ CAT LLC determined that the budgeted costs
related to change request fees described in this filing are reasonable
and should be included as a part of Budgeted CAT Costs 2024-1. It is
common practice to utilize a change request process to address evolving
needs in technology projects. This is particularly true for a project
like CAT that is the first of its kind, both in substance and in scale.
The substance and costs of each of the change requests are evaluated by
the Operating Committee and approved in accordance with the
requirements for Operating Committee meetings. In each case, CAT LLC
forecasts that the change requests will be necessary to implement the
CAT. As described above,\153\ CAT LLC has included a reasonable
placeholder budget amount for potential change requests that may arise
during the CAT Fee 2024-1 Period. As noted above, the total budgeted
costs for change requests during the CAT Fee 2024-1 Period represent a
small percentage of Budgeted CAT Costs 2024-1--that is, approximately
0.12% of Budgeted CAT Costs 2024-1.
---------------------------------------------------------------------------
\152\ Section 11.3(a)(iii)(B)(B)(1) of the CAT NMS Plan.
\153\ See Section 3(a)(2)(C)(iv) above.
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(v) Capitalized Developed Technology Costs
In approving the CAT Funding Model, the SEC recognized that it is
appropriate to recover budgeted costs related to capitalized developed
technology costs as a part of CAT Fees.\154\ In general, capitalized
developed technology costs would include costs related to, for example,
certain development costs, costs related to certain modifications,
upgrades and other changes to the CAT, CAIS implementation fees and
license fees. The amount and type of budgeted capitalized developed
technology costs for the CAT Fee 2024-1 Period, which relate to the
CAIS software license fee and technology changes to be implemented by
FCAT, are described in more detail above.\155\ CAT LLC determined that
these budgeted costs are reasonable and should be included as a part of
Budgeted CAT Costs 2024-1.
---------------------------------------------------------------------------
\154\ Section 11.3(a)(iii)(B)(B)(1) of the CAT NMS Plan.
\155\ See Section 3(a)(2)(C)(v) above.
---------------------------------------------------------------------------
(vi) Legal
In approving the CAT Funding Model, the SEC recognized that it is
appropriate to recover budgeted costs related to legal fees as a part
of CAT Fees.\156\ CAT LLC determined that the budgeted legal costs
described in this filing are reasonable and should be included as a
part of Budgeted CAT Costs 2024-1. Given the unique nature of the CAT,
the number of parties involved with the CAT (including, for example,
the SEC, Participants, Industry Members, and vendors) and the many
regulatory, contractual and other issues associated with the CAT, the
scope of the necessary legal services is substantial. CAT LLC
determined that the scope of the proposed legal services is necessary
to implement and maintain the CAT and that the legal rates reflect the
specialized services necessary for such a project. CAT LLC determined
to hire and continue to use each law firm based on a variety of
factors, including their relevant expertise and fees. In each case, CAT
LLC determined that the fee rates were in line with market rates for
specialized legal expertise. In addition, CAT LLC determined that the
budgeted costs for the legal projects were appropriate given the
breadth of the services provided. The services to be performed by each
law firm for the CAT Fee 2024-1 Period and the budgeted costs related
to such services are described above.\157\
---------------------------------------------------------------------------
\156\ Section 11.3(a)(iii)(B)(B)(2) of the CAT NMS Plan.
\157\ See Section 3(a)(2)(B)(vi) above.
---------------------------------------------------------------------------
(vii) Consulting
In approving the CAT Funding Model, the SEC recognized that it is
appropriate to recover budgeted consulting costs as a part of CAT
Fees.\158\ CAT LLC determined that the budgeted consulting costs
described in this filing are reasonable and should be included as a
part of Budgeted CAT Costs 2024-1. Because there are no CAT employees
\159\ and because of the significant number of issues associated with
the CAT, the consultants are budgeted to provide assistance in the
management of various CAT matters and the processes related to such
matters.\160\ CAT LLC determined the budgeted consulting costs were
appropriate, as the consulting services were to be provided at
reasonable market rates that were comparable to the rates charged by
other consulting firms for similar work. Moreover, the total budgeted
costs for such consulting services were appropriate in light of the
breadth of services provided by Deloitte. The services budgeted to be
performed by Deloitte and the budgeted costs related to such services
are described above.\161\
---------------------------------------------------------------------------
\158\ Section 11.3(b)(iii)(B)(B)(3) of the CAT NMS Plan.
\159\ As stated in the filing of the proposed CAT NMS Plan,
``[i]t is the intent of the Participants that the Company have no
employees.'' Securities Exchange Act Rel. No. 77724 (Apr. 27, 2016),
81 FR 30614, 30621 (May 17, 2016).
\160\ CAT LLC uses certain third parties to perform tasks that
may be performed by administrators for other NMS Plans. See, e.g.,
CTA Plan and CQ Plan.
\161\ Section 3(a)(2)(C)(vii) of the CAT NMS Plan.
---------------------------------------------------------------------------
(viii) Insurance
In approving the CAT Funding Model, the SEC recognized that it is
appropriate to recover budgeted insurance costs as a part of CAT
Fees.\162\ CAT LLC determined that the budgeted insurance costs
described in this filing are reasonable and should be included as a
part of Budgeted CAT Costs 2024-1. CAT LLC determined that it is common
practice to have directors' and officers' liability insurance, and
errors and omissions liability insurance. CAT LLC further determined
that it was important to have cyber security insurance given the nature
of the CAT, and such a decision is consistent with the CAT NMS Plan,
which states that the cyber incident response plan may include
``[i]nsurance against security breaches.'' \163\ As discussed
above,\164\ CAT LLC determined that the budgeted insurance costs were
appropriate given its prior experience with this market and an analysis
of the alternative insurance offerings. Based on this analysis, CAT LLC
determined that the selected insurance policies provided
[[Page 73171]]
appropriate coverage at reasonable market rates.\165\
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\162\ Section 11.3(b)(iii)(B)(B)(4) of the CAT NMS Plan.
\163\ Section 4.1.5 of Appendix D of the CAT NMS Plan.
\164\ See Section 3(a)(2)(C)(viii) above.
\165\ Id.
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(ix) Professional and Administration
In approving the CAT Funding Model, the SEC recognized that it is
appropriate to recover budgeted professional and administration costs
as a part of CAT Fees.\166\ CAT LLC determined that the budgeted
professional and administration costs described in this filing are
reasonable and should be included as a part of Budgeted CAT Costs 2024-
1. Because there are no CAT employees, all required accounting,
financial, tax, cash management and treasury functions for CAT LLC have
been outsourced at market rates. In addition, the required annual
financial statement audit of CAT LLC is included in professional and
administration costs, which costs are also at market rates. The
services performed by Anchin and Grant Thornton and the costs related
to such services are described above.\167\
---------------------------------------------------------------------------
\166\ Section 11.3(a)(iii)(B)(B)(5) of the CAT NMS Plan.
\167\ See Section 3(a)(2)(C)(ix) above.
---------------------------------------------------------------------------
CAT LLC anticipates continuing to make use of Anchin, a financial
advisory firm, to assist with financial matters for the CAT. CAT LLC
determined that the budgeted costs for Anchin were appropriate, as the
financial advisory services were to be provided at reasonable market
rates that were comparable to the rates charged by other such firms for
similar work. Moreover, the total budgeted costs for such financial
advisory services were appropriate in light of the breadth of services
provided by Anchin. The services budgeted to be performed by Anchin and
the budgeted costs related to such services are described above.\168\
---------------------------------------------------------------------------
\168\ Id.
---------------------------------------------------------------------------
CAT LLC anticipates continuing to make use of Grant Thornton, an
independent accounting firm, to complete the audit of CAT LLC's
financial statements, in accordance with the requirements of the CAT
NMS Plan. CAT LLC determined that the budgeted costs for Grant Thornton
were appropriate, as the accounting services were to be provided at
reasonable market rates that were comparable to the rates charged by
other such firms for similar work. Moreover, the total budgeted costs
for such accounting services were appropriate in light of the breadth
of services provided by Grant Thornton. The services budgeted to be
performed by Grant Thornton and the budgeted costs related to such
services are described above.\169\
---------------------------------------------------------------------------
\169\ Id.
---------------------------------------------------------------------------
(x) Public Relations Costs
In approving the CAT Funding Model, the SEC recognized that it is
appropriate to recover budgeted public relations costs as a part of CAT
Fees.\170\ CAT LLC determined that the budgeted public relations costs
described in this filing are reasonable and should be included as a
part of Budgeted CAT Costs 2024-1. CAT LLC determined that the types of
public relations services to be utilized were beneficial to the CAT and
market participants more generally. Public relations services are
important for various reasons, including monitoring comments made by
market participants about CAT and understanding issues related to the
CAT discussed on the public record.\171\ By continuing to engage a
public relations firm, CAT LLC will be better positioned to understand
and address CAT issues to the benefit of all market participants.\172\
Moreover, CAT LLC determined that the budgeted rates charged for such
services were in line with market rates.\173\ As noted above, the total
budgeted public relations costs for the CAT Fee 2024-1 Period represent
a small percentage of Budgeted CAT Costs 2024-1--that is, approximately
0.03% of Budgeted CAT Costs 2024-1.
---------------------------------------------------------------------------
\170\ Section 11.3(a)(iii)(B)(B)(6) of the CAT NMS Plan.
\171\ See Section 3(a)(2)(C)(x) above.
\172\ Id.
\173\ Id.
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(xi) Reserve
In approving the CAT Funding Model, the SEC recognized that it is
appropriate to recover budgeted reserve costs as a part of CAT
Fees.\174\ CAT LLC determined that the inclusion of a reserve in the
amount of 25% of Budgeted CAT Costs 2024-1 complies with the
requirements of the CAT NMS Plan related to a reserve, is a reasonable
amount and should be included as a part of Budgeted CAT Costs 2024-1.
---------------------------------------------------------------------------
\174\ Section 11.3(a)(iii)(B)(B) of the CAT NMS Plan.
---------------------------------------------------------------------------
In its approval order for the CAT Funding Model, the Commission
stated that it would be reasonable for the annual operating budget for
the CAT to ``include a reserve of not more than 25% of the annual
budget.'' \175\ In making this statement, the Commission noted the
following:
---------------------------------------------------------------------------
\175\ CAT Funding Model Approval Order at 62657.
Because the CAT is a critical regulatory tool/system, the CAT
needs to have a stable funding source to build financial stability
to support the Company as a going concern. Funding for the CAT, as
noted in Section 11.1(b), is the responsibility of the Participants
and the industry. Because CAT fees are charged based on the budget,
which is based on anticipated volume, it is reasonable to have a
reserve on hand to prevent a shortfall in the event there is an
unexpectedly high volume in a given year. A reserve would help to
assure that the CAT has sufficient resources to cover costs should
there be unanticipated costs or costs that are higher than
expected.\176\
---------------------------------------------------------------------------
\176\ Id.
The SEC also recognized that that [sic] a reserve would help
address the difficulty in predicting certain variable CAT costs, like
trading volume.\177\ The SEC also recognized that CAT fees will be
collected approximately three months after trading activity on which a
CAT fee is based, or 25% of the year, and that the reserve would be
available to address funding needs related to this three-month
delay.\178\ The inclusion of the proposed reserve in Budgeted CAT Costs
2024-1 would provide each of these benefits to the CAT. The reserve is
discussed further above.\179\
---------------------------------------------------------------------------
\177\ Id.
\178\ Id.
\179\ See Section 3(a)(2)(C)(xi) above.
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(B) Reconciliation of Budget to the Collected Fees
The CAT NMS Plan also requires fee filings for Prospective CAT Fees
to include ``a discussion of how the budget is reconciled to the
collected fees.'' \180\ To date, CAT LLC has not collected any CAT
fees. Accordingly, there are no collected fees to be reconciled with
the budget.
---------------------------------------------------------------------------
\180\ Section 11.3(a)(iii)(B)(C) of the CAT NMS Plan.
---------------------------------------------------------------------------
(C) Total Executed Equivalent Share Volume for the Prior 12 Months
The total executed equivalent share volume of transactions in
Eligible Securities for the period from June 2023 through May 2024 was
3,980,753,840,905.21 executed equivalent shares. CAT LLC determined the
total executed equivalent share volume for the prior twelve months by
counting executed equivalent shares in the same manner as it counts
executed equivalent shares for CAT billing purposes.\181\
---------------------------------------------------------------------------
\181\ See Section 3(a)(2)(D) above.
---------------------------------------------------------------------------
(D) Projected Executed Equivalent Share Volume for the CAT Fee 2024-1
Period
CAT LLC has determined to calculate the projected total executed
equivalent share volume for the four months in which CAT Fee 2024-1
Period would be payable by multiplying by 4/12ths (i.e., one-third) the
executed equivalent share
[[Page 73172]]
volume for the prior 12 months.\182\ CAT LLC determined that such an
approach was reasonable as the CAT's annual executed equivalent share
volume has remained relatively constant in recent years. For example,
the executed equivalent share volume for 2021 was 3,963,697,612,395
executed equivalent shares, the executed equivalent share volume for
2022 was 4,039,821,841,560.31 executed equivalent shares, and the
executed equivalent share volume for 2023 was 3,868,940,345,680.6.
Accordingly, the projected total executed equivalent share volume for
the four-month period for CAT Fee 2024-1 is 1,326,917,946,968.403
executed equivalent shares.\183\
---------------------------------------------------------------------------
\182\ Id.
\183\ This projection was calculated by multiplying
3,980,753,840,905.21 executed equivalent shares by 4/12ths.
---------------------------------------------------------------------------
(E) Actual Fee Rate for CAT Fee 2024-1
(i) Decimal Places
As noted in the approval order for the CAT Funding Model, as a
practical matter, the fee filing for a CAT Fee would provide the exact
fee per executed equivalent share to be paid for each CAT Fee, by
multiplying the Fee Rate by one-third and describing the relevant
number of decimal places for the fee rate.\184\ Accordingly, proposed
paragraph (a)(3)(B) of the fee schedule would set forth a fee rate of
$0.000035 per executed equivalent share. This fee rate is calculated by
multiplying Fee Rate 2024-1 by one-third and rounding the result to six
decimal places. CAT LLC determined that the use of six decimal places
is reasonable as it balances the accuracy of the calculation with the
potential systems and other impracticalities of using additional
decimal places in the calculation.\185\
---------------------------------------------------------------------------
\184\ CAT Funding Model Approval Order at 62658, n.658.
\185\ See Section 3(a)(4)(A) above.
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(ii) Reasonable Fee Level
The Exchange believes that imposing CAT Fee 2024-1 with a fee rate
of $0.000035 per executed equivalent share is reasonable because it
provides for a revenue stream for the Company that is aligned with
Budgeted CAT Costs 2024-1 and such budgeted costs would be spread out
over a four-month period. Moreover, the Exchange believes that the
level of the fee rate is reasonable, as it is comparable to other
transaction-based fees. Indeed, CAT Fee 2024-1 is significantly lower
than fees assessed pursuant to Section 31 (e.g., $0.0009 per share to
0.0004 per share),\186\ and, as a result, the magnitude of CAT Fee
2024-1 is small, and therefore will mitigate any potential adverse
economic effects or inefficiencies.\187\
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\186\ Id. at 62663, 62682. In explaining the comparison of
Section 31 fees to CAT fees in the CAT Funding Model Approval Order,
the SEC noted that ``Section 31 fees are expressed per dollar volume
traded. Translating this to a per share range involves identifying
reasonable high and low trade sizes. The lower end of this range
comes from the 25th percentile in $ trade size of 1,200 and share
trade size of 71 from the first quarter of 2021. The higher end of
this range comes from the 75th percentile in $ trade size of 5,200
and share trade size of 300 from the first quarter of 2021. Section
31 fees have ranged from $5.10 per $Million to $23.10 per $Million
from Oct. 1, 2016 to Mar. 1, 2023.'' Id. at 62682., n.1100. In 2024,
Section 31 fees were raised further to $27.80 per million dollars.
\187\ Id.
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(3) CAT Fee 2024-1 Provides for an Equitable Allocation of Fees
CAT Fee 2024-1 provides for an equitable allocation of fees, as it
equitably allocates CAT costs between and among the Participants and
Industry Members. The SEC approved the CAT Funding Model, finding that
each aspect of the CAT Funding Model satisfied the requirements of the
Exchange Act, including the formula for calculating CAT Fees as well as
the Industry Members to be charged the CAT Fees.\188\ In approving the
CAT Funding Model, the SEC stated that ``[t]he Participants have
sufficiently demonstrated that the proposed allocation of fees is
reasonable.'' \189\ Accordingly, the CAT Funding Model sets forth the
requirements for allocating fees related to Budgeted CAT Costs among
Participants and Industry Members, and the fee filings for CAT Fees
must comply with those requirements.
---------------------------------------------------------------------------
\188\ See Section 11.3(b) of the CAT NMS Plan.
\189\ CAT Funding Model Approval Order at 62629.
---------------------------------------------------------------------------
CAT Fee 2024-1 provides for an equitable allocation of fees as it
complies with the requirements regarding the calculation of CAT Fees as
set forth in the CAT NMS Plan. For example, as described above, the
calculation of CAT Fee 2024-1 complies with the formula set forth in
Section 11.3(a) of the CAT NMS Plan. In addition, CAT Fee 2024-1 would
be charged to CEBBs and CEBSs in accordance with Section 11.3(a) of the
CAT NMS Plan. Furthermore, the Participants would be charged for their
designated share of Budgeted CAT Costs 2024-1 through a fee implemented
via the CAT NMS Plan, which would have the same fee rate as CAT Fee
2024-1.
In addition, as discussed above, each of the inputs into the
calculation of CAT Fee 2024-1--Budgeted CAT Costs 2024-1, the count for
the executed equivalent share volume for the prior 12 months, and the
projected executed equivalent share volume for the CAT Fee 2024-1
Period--are reasonable. Moreover, these inputs lead to a reasonable fee
rate for CAT Fee 2024-1 that is lower than other fee rates for
transaction-based fees. A reasonable fee rate allocated in accordance
with the requirements of the CAT Funding Model provides for an
equitable allocation of fees.
(4) CAT Fee 2024-1 Is Not Unfairly Discriminatory
CAT Fee 2024-1 is not an unfairly discriminatory fee. The SEC
approved the CAT Funding Model, finding that each aspect of the CAT
Funding Model satisfied the requirements of the Exchange Act. In
reaching this conclusion, the SEC analyzed the potential effect of CAT
Fees calculated pursuant to the CAT Funding Model on affected
categories of market participants, including Participants (including
exchanges and FINRA), Industry Members (including subcategories of
Industry Members, such as alternative trading systems, CAT Executing
Brokers and market makers), and investors generally, and considered
market effects related to equities and options, among other things. CAT
Fee 2024-1 complies with the requirements regarding the calculation of
CAT Fees as set forth in the CAT NMS Plan. In addition, as discussed
above, each of the inputs into the calculation of CAT Fee 2024-1 and
the resulting fee rate for CAT Fee 2024-1 is reasonable. Therefore, CAT
Fee 2024-1 does not impose an unfairly discriminatory fee on Industry
Members.
The Exchange believes the proposed fees established pursuant to the
CAT Funding Model promote just and equitable principles of trade, and,
in general, protect investors and the public interest, and are provided
in a transparent manner and with specificity in the fee schedule. The
Exchange also believes that the proposed fees are reasonable because
they would provide ease of calculation, ease of billing and other
administrative functions, and predictability of a fee based on fixed
rate per executed equivalent share. Such factors are crucial to
estimating a reliable revenue stream for CAT LLC and for permitting
Exchange members to reasonably predict their payment obligations for
budgeting purposes.
[[Page 73173]]
B. Self-Regulatory Organization's Statement on Burden on Competition
Section 6(b)(8) of the Act \190\ requires that the Exchange's rules
not impose any burden on competition that is not necessary or
appropriate in furtherance of the purpose of the Exchange Act. The
Exchange does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act. The Exchange notes that CAT Fee
2024-1 implements provisions of the CAT NMS Plan that were approved by
the Commission and is designed to assist the Exchange in meeting its
regulatory obligations pursuant to the Plan.
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\190\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------
In addition, all Participants (including exchanges and FINRA) are
proposing to introduce CAT Fee 2024-1 on behalf of CAT LLC to implement
the requirements of the CAT NMS Plan. Therefore, this is not a
competitive fee filing, and, therefore, it does not raise competition
issues between and among the Participants.
Furthermore, in approving the CAT Funding Model, the SEC analyzed
the potential competitive impact of the CAT Funding Model, including
competitive issues related to market services, trading services and
regulatory services, efficiency concerns, and capital formation.\191\
The SEC also analyzed the potential effect of CAT fees calculated
pursuant to the CAT Funding Model on affected categories of market
participants, including Participants (including exchanges and FINRA),
Industry Members (including subcategories of Industry Members, such as
alternative trading systems, CAT Executing Brokers and market makers),
and investors generally, and considered market effects related to
equities and options, among other things. Based on this analysis, the
SEC approved the CAT Funding Model as compliant with the Exchange Act.
CAT Fee 2024-1 is calculated and implemented in accordance with the CAT
Funding Model as approved by the SEC.
---------------------------------------------------------------------------
\191\ CAT Funding Model Approval Order at 62676-86.
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As discussed above, each of the inputs into the calculation of CAT
Fee 2024-1 is reasonable and the resulting fee rate for CAT Fee 2024-1
calculated in accordance with the CAT Funding Model is reasonable.
Therefore, CAT Fee 2024-1 would not impose any burden on competition
that is not necessary or appropriate in furtherance of the purpose of
the Exchange Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
The Exchange neither solicited nor received comments on the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Exchange Act \192\ and Rule 19b-4(f)(2)
thereunder,\193\ because it establishes or changes a due, or fee.
---------------------------------------------------------------------------
\192\ 15 U.S.C. 78s(b)(3)(A)(ii).
\193\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------
At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend the rule
change if it appears to the Commission that the action is necessary or
appropriate in the public interest, for the protection of investors, or
would otherwise further the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule should be approved or disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
file number SR-LTSE-2024-04 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to file number SR-LTSE-2024-04. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-LTSE-2024-04 and should be
submitted on or before September 30, 2024.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\194\
---------------------------------------------------------------------------
\194\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-20165 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:25.038746 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20165.htm"
} |
FR | FR-2024-09-09/2024-20201 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73173-73174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20201]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[SEC File No. 270-221, OMB Control No. 3235-0232]
Proposed Collection; Comment Request; Extension: Form 1-E,
Regulation E
Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of FOIA Services, 100 F Street NE, Washington, DC
20549-2736
Notice is hereby given that, pursuant to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (the ``Commission'') is soliciting comments on the
collection of information summarized below. The Commission plans to
submit this existing collection of information of the Office of
Management and Budget for extension and approval.
Form 1-E (17 CFR 239.200) under the Securities Act of 1933 (15
U.S.C. 77a et seq.) (``Securities Act'') is the form that a small
business investment company
[[Page 73174]]
(``SBIC'') or business development company (``BDC'') uses to notify the
Commission that it is claiming an exemption under Regulation E from
registering its securities under the Securities Act. Rule 605 of
Regulation E (17 CFR 230.605) under the Securities Act requires an SBIC
or BDC claiming such an exemption to file an offering circular with the
Commission that must also be provided to persons to whom an offer is
made. Form 1-E requires an issuer to provide the names and addresses of
the issuer, its affiliates, directors, officers, and counsel; a
description of events which would make the exemption unavailable; the
jurisdictions in which the issuer intends to offer the securities;
information about unregistered securities issued or sold by the issuer
within one year before filing the notification on Form 1-E; information
as to whether the issuer is presently offering or contemplating
offering any other securities; and exhibits, including copies of the
rule 605 offering circular and any underwriting contracts.
The Commission uses the information provided in the notification on
Form 1-E and the offering circular to determine whether an offering
qualifies for the exemption under Regulation E. The Commission
estimates that, each year, one issuer files one notification on Form 1-
E, together with offering circulars, with the Commission.\1\ Based on
the Commission's experience with disclosure documents, we estimate that
the burden from compliance with Form 1-E and the offering circular
requires approximately 100 hours per filing. The annual burden hours
for compliance with Form 1-E and the offering circular would be 200
hours (2 responses x 100 hours per response). Estimates of the burden
hours are made solely for the purposes of the PRA, and are not derived
from a comprehensive or even a representative survey or study of the
costs of SEC rules and forms.
---------------------------------------------------------------------------
\1\ According to Commission records, one issuer filed two
notifications on Form 1-E, together with offering circulars, during
2013 and 2014.
---------------------------------------------------------------------------
Written comments are invited on: (a) whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
estimate of the burden of the collection of information; (c) ways to
enhance the quality, utility, and clarity of the information collected;
and (d) ways to minimize the burden of the collection of information on
respondents, including through the use of automated collection
techniques or other forms of information technology. Consideration will
be given to comments and suggestions submitted by November 8, 2024.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information under the PRA unless it
displays a currently valid OMB control number.
Please direct your written comments to: Austin Gerig, Director/
Chief Data Officer, Securities and Exchange Commission, c/o Oluwaseun
Ajayi, 100 F Street NE, Washington, DC 20549 or send an email to:
[email protected].
Dated: September 3, 2024.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2024-20201 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:25.123986 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20201.htm"
} |
FR | FR-2024-09-09/2024-20203 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20203]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[SEC File No. 270-136, OMB Control No. 3235-0157]
Proposed Collection; Comment Request; Extension: Form N-8F
Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of FOIA Services, 100 F Street NE, Washington, DC
20549-2736
Notice is hereby given that, pursuant to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (the ``Commission'') is soliciting comments on the
collection of information summarized below. The Commission plans to
submit this existing collection of information to the Office of
Management and Budget for extension and approval.
Form N-8F (17 CFR 274.218) is the form prescribed for use by
registered investment companies in certain circumstances to request
orders of the Commission declaring that the registration of that
investment company cease to be in effect. The form requests information
about: (i) the investment company's identity, (ii) the investment
company's distributions, (iii) the investment company's assets and
liabilities, (iv) the events leading to the request to deregister, and
(v) the conclusion of the investment company's business. The
information is needed by the Commission to determine whether an order
of deregistration is appropriate.
The Form takes approximately 5.2 hours on average to complete. It
is estimated that approximately 101 investment companies file Form N-8F
annually, so the total annual burden for the form is estimated to be
approximately 525 hours. The estimate of average burden hours is made
solely for the purposes of the Paperwork Reduction Act and is not
derived from a comprehensive or even a representative survey or study.
Commission staff continues to believe that there is no cost burden for
completing and filing Form N-8F.
The collection of information on Form N-8F is not mandatory. The
information provided on Form N-8F is not kept confidential. An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently-valid OMB
control number.
Written comments are invited on: (a) whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
estimate of the burden of the collection of information; (c) ways to
enhance the quality, utility, and clarity of the information collected;
and (d) ways to minimize the burden of the collection of information on
respondents, including through the use of automated collection
techniques or other forms of information technology. Consideration will
be given to comments and suggestions submitted by November 8, 2024.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information under the PRA unless it
displays a currently valid OMB control number.
Please direct your written comments to: Austin Gerig, Director/
Chief Data Officer, Securities and Exchange Commission, c/o Oluwaseun
Ajayi, 100 F Street NE, Washington, DC 20549 or send an email to:
[email protected].
Dated: September 3, 2024.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2024-20203 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:25.170171 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20203.htm"
} |
FR | FR-2024-09-09/2024-20168 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20168]
[[Page 73175]]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-100895; File No. SR-PEARL-2024-01]
Self-Regulatory Organizations; MIAX PEARL LLC; Notice of
Withdrawal of Proposed Rule Change To Establish Fees for Industry
Members Related to Certain Historical Costs of the National Market
System Plan Governing the Consolidated Audit Trail
September 3, 2024.
On January 2, 2024, MIAX PEARL LLC (the ``Exchange'') filed with
the Securities and Exchange Commission (the ``Commission''), pursuant
to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'')
\1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to establish
fees for industry members related to certain historical costs of the
National Market System plan governing the Consolidated Audit Trail. The
proposed rule change was immediately effective upon filing with the
Commission pursuant to Section 19(b)(3)(A) of the Act.\3\ On February
13, 2024, the proposed rule change was published in the Federal
Register and the Commission temporarily suspended and instituted
proceedings to determine whether to approve or disapprove the proposed
rule change.\4\ The Commission received six comments on the proposed
rule change and one response to those comments.\5\ On July 31, 2024,
pursuant to Section 19(b)(2) of the Act,\6\ the Commission designated a
longer period within which to approve the proposed rule change or
disapprove the proposed rule change.\7\ On August 23, 2024, the
Exchange withdrew the proposed rule change (SR-PEARL-2024-01).
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A). A proposed rule change may take
effect upon filing with the Commission if it is designated by the
exchange as ``establishing or changing a due, fee, or other charge
imposed by the self-regulatory organization on any person, whether
or not the person is a member of the self-regulatory organization.''
15 U.S.C. 78s(b)(3)(A)(ii).
\4\ Securities Exchange Act Release No. 99375 (January 17,
2024), 89 FR 11116 (February 13, 2024).
\5\ See letters from: Edward Weisbaum, Executing Broker CBOE
Floor, dated February 6, 2024; Howard Meyerson, Managing Director,
Financial Information Forum, to Vanessa Countryman, Secretary,
Commission, dated March 4, 2024; Thomas M. Merritt, Deputy General
Counsel, Virtu Financial, Inc., to Vanessa Countryman, Secretary,
Commission, dated March 5, 2024; Ellen Greene, Managing Director,
Equities & Options Market Structure, SIFMA; Joseph Corcoran,
Managing Director, Associate General Counsel, SIFMA, to Vanessa
Countryman, Secretary, Commission, dated March 5, 2024; Stephen John
Berger, Managing Director, Global Head of Government & Regulatory
Policy, Citadel Securities, to Vanessa Countryman, Secretary,
Commission, dated March 5, 2024; Joanna Mallers, Secretary, FIA
Principal Traders Group, to Vanessa Countryman, Secretary,
Commission, dated March 9, 2024; and Brandon Becker, CAT NMS Plan
Operating Committee Chair, to Vanessa Countryman, Secretary,
Commission, dated June 13, 2024.
\6\ 15 U.S.C. 78s(b)(2).
\7\ See Securities Exchange Act Release No. 100628 (Jul. 31,
2024), 89 FR 64010 (Aug. 6, 2024). The Commission designated October
10, 2024 as the date by it should approve or disapprove the proposed
rule change.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\8\
---------------------------------------------------------------------------
\8\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-20168 Filed 9-6-24; 8:45 am]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:25.200436 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20168.htm"
} |
FR | FR-2024-09-09/2024-20427 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20427]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Sunshine Act Meetings
TIME AND DATE: Notice is hereby given, pursuant to the provisions of
the Government in the Sunshine Act, Public Law 94-409, that the
Securities and Exchange Commission Investor Advisory Committee will
hold a public meeting on Thursday, September 19, 2024. The meeting will
begin at 10:00 a.m. (ET) and will be open to the public.
PLACE: The meeting will be conducted in-person at 100 F Street NE,
Washington, DC 20549 in the Multipurpose Room, and by remote means.
Members of the public may attend in-person or watch the webcast of the
meeting on the Commission's website at www.sec.gov.
STATUS: This Sunshine Act notice is being issued because a majority of
the Commission may attend the meeting.
Public Comment: The public is invited to submit written statements
to the Committee. Written statements should be received on or before
September 18, 2024.
Written statements may be submitted by one of the following
methods:
Electronic Statements
Use the Commission's internet submission form (https://www.sec.gov/comments/265-28/investor-advisory-committee-meeting-notice-meeting-securities-exchange-commission-dodd-frank-1); or
Send an email message to [email protected]. Please
include File No. 265-28 on the subject line; or
Paper Statements
Send paper statements to Vanessa A. Countryman, Secretary,
U.S. Securities and Exchange Commission, 100 F Street NE, Washington,
DC 20549-1090.
All submissions should refer to File No. 265-28. This file number
should be included on the subject line if email is used. To help us
process and review your statement more efficiently, please use only one
method.
The Commission will post all statements on the Commission's
website. Statements also will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Room 1503, Washington, DC 20549, on official business days between the
hours of 10:00 a.m. and 3:00 p.m. Operating conditions may limit access
to the Commission's Public Reference Room. Do not include personal
information in submissions; you should submit only information that you
wish to make available publicly. We may redact in part or withhold
entirely from publication submitted material that is obscene or subject
to copyright.
MATTERS TO BE CONSIDERED: The agenda for the meeting includes: welcome
and opening remarks; approval of previous meeting minutes; a panel
discussion regarding investment advice: a history and update on who is
required to serve in your best interest; a panel discussion regarding
key topics from securities litigation: shareholder proposals &
``tracing'' in section 11 litigation; subcommittee and working group
reports; and a non-public administrative session.
CONTACT PERSON FOR MORE INFORMATION: For further information, please
contact Vanessa A. Countryman from the Office of the Secretary at (202)
551-5400.
Authority: 5 U.S.C. 552b.
Dated: September 5, 2024.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2024-20427 Filed 9-5-24; 4:15 pm]
BILLING CODE 8011-01-P | usgpo | 2024-10-08T13:26:25.237779 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20427.htm"
} |
FR | FR-2024-09-09/2024-20227 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73175-73176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20227]
=======================================================================
-----------------------------------------------------------------------
SELECTIVE SERVICE SYSTEM
Forms Submitted to the Office of Management and Budget for
Extension of Clearance
AGENCY: Selective Service System.
ACTION: Notice.
-----------------------------------------------------------------------
The following form has been submitted to the Office of Management
and Budget (OMB) for extension of clearance without change in
compliance with the Paperwork Reduction Act (44 U.S.C. chapter 35):
[[Page 73176]]
SSS Forms 1
Title: Selective Service System Registration Form.
Purpose: Used to register males and establish a database for use in
identifying manpower to the military services during a national
emergency.
Respondents: All 18-year-old males who are United States citizens
and those male immigrants residing in the United States at the time of
their 18th birthday.
Frequency: Registration with the Selective Service System is a one-
time occurrence.
Burden: A burden of two minutes or less on the individual
respondent.
Change: None.
Copies of the above-identified forms can be obtained upon written
request to the Selective Service System, Public & Intergovernmental
Affairs Directorate, 1501 Wilson Boulevard, Arlington, Virginia 22209.
Written comments and recommendations for the proposed extension of
clearance of the forms should be sent within 30 days of the publication
of this notice to: Daniel A. Lauretano, Sr., General Counsel/Federal
Register Liaison, Selective Service System, 1501 Wilson Boulevard,
Arlington, Virginia 22209.
A copy of the comments should be sent to the Office of Information
and Regulatory Affairs, Attention: Desk Officer, Selective Service
System, Office of Management and Budget, New Executive Office Building,
Room 3235, Washington, DC 20503.
Daniel A. Lauretano, Sr.,
General Counsel/Federal Register Liaison.
[FR Doc. 2024-20227 Filed 9-6-24; 8:45 am]
BILLING CODE 8015-01-P | usgpo | 2024-10-08T13:26:25.259678 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20227.htm"
} |
FR | FR-2024-09-09/2024-20249 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20249]
=======================================================================
-----------------------------------------------------------------------
SMALL BUSINESS ADMINISTRATION
Reporting and Recordkeeping Requirements Under OMB Review
AGENCY: Small Business Administration.
ACTION: 30-Day notice.
-----------------------------------------------------------------------
SUMMARY: The Small Business Administration (SBA) is seeking approval
from the Office of Management and Budget (OMB) for the information
collection described below. In accordance with the Paperwork Reduction
Act and OMB procedures, SBA is publishing this notice to allow all
interested member of the public an additional 30 days to provide
comments on the proposed collection of information.
DATES: Submit comments on or before October 9, 2024.
ADDRESSES: Written comments and recommendations for this information
collection request should be sent within 30 days of publication of this
notice to www.reginfo.gov/public/do/PRAMain. Find this particular
information collection request by selecting ``Small Business
Administration''; ``Currently Under Review,'' then select the ``Only
Show ICR for Public Comment'' checkbox. This information collection can
be identified by title and/or OMB Control Number.
FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the
information collection and supporting documents from the Agency
Clearance Office at [email protected]; (202) 205-7030, or from
www.reginfo.gov/public/do/PRAMain.
SUPPLEMENTARY INFORMATION: SBA is transforming how customers interact
with the agency via the development of an online MySBA platform that
will allow customers to see all their SBA products and services
summarized in a single place. MySBA will also allow customers to
quickly switch between existing and future SBA digital tools, like the
MySBA Loan Portal and VetCert, with single credentials and one account.
Finally, MySBA will highlight additional SBA products and services
beneficial to them based on their customer or business information.
So the SBA can provide relevant information, customers may be asked
to provide information that fall into three functional areas: Account
Registration, Validation and Authentication, and Business Services.
Solicitation of Public Comments
Comments may be submitted on (a) whether the collection of
information is necessary for the agency to properly perform its
functions; (b) whether the burden estimates are accurate; (c) whether
there are ways to minimize the burden, including through the use of
automated techniques or other forms of information technology; and (d)
whether there are ways to enhance the quality, utility, and clarity of
the information.
OMB Control Number: 3245-NEW.
Title: MySBA.
Description of Respondents: Current and likely customers of SBA
programs.
SBA Form Number: N/A.
Estimated Number of Respondents: 4,500,000.
Estimated Annual Responses per Respondent: 1.
Estimated Annual Hour Burden per Respondent: 2 minutes.
Total Estimated Annual Hour Burden: 150,000 hours.
Curtis Rich,
Agency Clearance Officer.
[FR Doc. 2024-20249 Filed 9-6-24; 8:45 am]
BILLING CODE 8026-09-P | usgpo | 2024-10-08T13:26:25.309377 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20249.htm"
} |
FR | FR-2024-09-09/2024-20213 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73176-73177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20213]
-----------------------------------------------------------------------
SMALL BUSINESS ADMINISTRATION
[Disaster Declaration # 20570 and # 20571; TEXAS Disaster Number TX-
20024]
Administrative Disaster Declaration of a Rural Area for the State
of Texas
AGENCY: U.S. Small Business Administration.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This is a notice of an Administrative disaster declaration of
a rural area for the State of Texas dated September 3, 2024.
DATES: Issued on September 3, 2024.
Physical Loan Application Deadline Date: November 4, 2024.
Economic Injury (EIDL) Loan Application Deadline Date: June 3,
2025.
ADDRESSES: Visit the MySBA Loan Portal at https://lending.sba.gov to
apply for a disaster assistance loan.
FOR FURTHER INFORMATION CONTACT: Alan Escobar, Office of Disaster
Recovery & Resilience, U.S. Small Business Administration, 409 3rd
Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
SUPPLEMENTARY INFORMATION: Notice is hereby given that as a result of
the Administrator's disaster declaration of a rural area, applications
for disaster loans may be submitted online using the MySBA Loan Portal
https://lending.sba.gov or other locally announced locations. Please
contact the SBA disaster assistance customer service center by email at
[email protected] or by phone at 1-800-659-2955 for
further assistance.
The following areas have been determined to be adversely affected
by the disaster:
Incident: Hurricane Beryl.
Incident Period: July 5, 2024 through July 9, 2024.
Primary Counties: Colorado, Hardin, Panola, Tyler.
The Interest Rates are:
------------------------------------------------------------------------
------------------------------------------------------------------------
For Physical Damage:
Homeowners with Credit Available Elsewhere................. 5.375
Homeowners without Credit Available Elsewhere.............. 2.688
Businesses with Credit Available Elsewhere................. 8.000
[[Page 73177]]
Businesses without Credit Available Elsewhere.............. 4.000
Non-Profit Organizations with Credit Available Elsewhere... 3.250
Non-Profit Organizations without Credit Available Elsewhere 3.250
For Economic Injury:
Business and Small Agricultural Cooperatives without Credit 4.000
Available Elsewhere.......................................
Non-Profit Organizations without Credit Available Elsewhere 3.250
------------------------------------------------------------------------
The number assigned to this disaster for physical damage is 205708
and for economic injury is 205710.
The State which received an EIDL Declaration is Texas.
(Catalog of Federal Domestic Assistance Number 59008)
Isabella Guzman,
Administrator.
[FR Doc. 2024-20213 Filed 9-6-24; 8:45 am]
BILLING CODE 8026-09-P | usgpo | 2024-10-08T13:26:25.340559 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20213.htm"
} |
FR | FR-2024-09-09/2024-20218 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20218]
-----------------------------------------------------------------------
SMALL BUSINESS ADMINISTRATION
[Disaster Declaration # 20568 and # 20569; TEXAS Disaster Number TX-
20023]
Presidential Declaration Amendment of a Major Disaster for Public
Assistance Only for the State of Texas
AGENCY: U.S. Small Business Administration.
ACTION: Amendment 1.
-----------------------------------------------------------------------
SUMMARY: This is an amendment of the Presidential declaration of a
major disaster for Public Assistance Only for the State of Texas (FEMA-
4798-DR), dated August 21, 2024.
DATES: Issued on September 3, 2024.
Physical Loan Application Deadline Date: October 21, 2024.
Economic Injury (EIDL) Loan Application Deadline Date: May 21,
2025.
ADDRESSES: Visit the MySBA Loan Portal at https://lending.sba.gov to
apply for a disaster assistance loan.
FOR FURTHER INFORMATION CONTACT: Alan Escobar, Office of Disaster
Recovery & Resilience, U.S. Small Business Administration, 409 3rd
Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
SUPPLEMENTARY INFORMATION: The notice of the President's major disaster
declaration for Private Non-Profit organizations in the State of TEXAS,
dated August 21, 2024, is hereby amended to include the following areas
as adversely affected by the disaster.
Incident: Hurricane Beryl.
Incident Period: July 5, 2024 through July 9, 2024.
Primary Counties: Angelina, Calhoun, Fort Bend, Galveston, Hardin,
Jackson, Nacogdoches, Newton, Polk, Sabine, San Augustine, Shelby,
Trinity, Tyler, Walker, Waller, Washington.
All other information in the original declaration remains
unchanged.
(Catalog of Federal Domestic Assistance Number 59008)
Rafaela Monchek,
Deputy Associate Administrator, Office of Disaster Recovery &
Resilience.
[FR Doc. 2024-20218 Filed 9-6-24; 8:45 am]
BILLING CODE 8026-09-P | usgpo | 2024-10-08T13:26:25.366448 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20218.htm"
} |
FR | FR-2024-09-09/2024-20234 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20234]
=======================================================================
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DEPARTMENT OF STATE
[Public Notice: 12511]
Notice of Determinations; Culturally Significant Objects Being
Imported for Exhibition--Determinations: ``Solid Gold'' Exhibition
SUMMARY: Notice is hereby given of the following determinations: I
hereby determine that certain objects being imported from abroad
pursuant to an agreement with their foreign owner or custodian for
temporary display in the exhibition ``Solid Gold'' at the Brooklyn
Museum, Brooklyn, New York, and at possible additional exhibitions or
venues yet to be determined, are of cultural significance, and,
further, that their temporary exhibition or display within the United
States as aforementioned is in the national interest. I have ordered
that Public Notice of these determinations be published in the Federal
Register.
FOR FURTHER INFORMATION CONTACT: Reed Liriano, Program Coordinator,
Office of the Legal Adviser, U.S. Department of State (telephone: 202-
632-6471; email: [email protected]). The mailing address is U.S.
Department of State, L/PD, 2200 C Street NW (SA-5), Suite 5H03,
Washington, DC 20522-0505.
SUPPLEMENTARY INFORMATION: The foregoing determinations were made
pursuant to the authority vested in me by the Act of October 19, 1965
(79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27,
1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112
Stat. 2681, et seq.; 22 U.S.C. 6501 note, et seq.), Delegation of
Authority No. 234 of October 1, 1999, Delegation of Authority No. 236-3
of August 28, 2000, and Delegation of Authority No. 523 of December 22,
2021.
Scott D. Weinhold,
Principal Deputy Assistant Secretary for Educational and Cultural
Affairs, Bureau of Educational and Cultural Affairs, Department of
State.
[FR Doc. 2024-20234 Filed 9-6-24; 8:45 am]
BILLING CODE 4710-05-P | usgpo | 2024-10-08T13:26:25.419840 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20234.htm"
} |
FR | FR-2024-09-09/2024-20235 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73177-73178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20235]
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DEPARTMENT OF STATE
[Public Notice: 12512]
Notice of Determinations; Culturally Significant Objects Being
Imported for Exhibition--Determinations: ``Flight Into Egypt: Black
Artists and Ancient Egypt, 1876-Now'' Exhibition
SUMMARY: Notice is hereby given of the following determinations: I
hereby determine that certain objects being imported from abroad
pursuant to agreements with their foreign owners or custodians for
temporary display in the exhibition ``Flight into Egypt: Black Artists
and Ancient Egypt, 1876-Now'' at The Metropolitan Museum of Art, New
York, New York, and at possible additional exhibitions or venues yet to
be determined, are of cultural significance, and, further, that their
temporary exhibition or display within the United States as
aforementioned is in the national interest. I have ordered that Public
Notice of these determinations be published in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Reed Liriano, Program Coordinator,
Office of the Legal Adviser, U.S. Department of State (telephone: 202-
632-6471; email: [email protected]). The mailing address is U.S.
Department of State, L/PD, 2200 C Street NW (SA-5), Suite 5H03,
Washington, DC 20522-0505.
SUPPLEMENTARY INFORMATION: The foregoing determinations were made
pursuant to the authority vested in me by the Act of October 19, 1965
(79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27,
1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112
Stat. 2681, et seq.; 22 U.S.C. 6501 note, et seq.), Delegation of
Authority No. 234 of October 1, 1999, Delegation of Authority No. 236-3
of August 28, 2000, and Delegation of
[[Page 73178]]
Authority No. 523 of December 22, 2021.
Scott D. Weinhold,
Principal Deputy Assistant Secretary for Educational and Cultural
Affairs, Bureau of Educational and Cultural Affairs, Department of
State.
[FR Doc. 2024-20235 Filed 9-6-24; 8:45 am]
BILLING CODE 4710-05-P | usgpo | 2024-10-08T13:26:25.441760 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20235.htm"
} |
FR | FR-2024-09-09/2024-20210 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20210]
=======================================================================
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SURFACE TRANSPORTATION BOARD
[Docket No. EP 552 (Sub-No. 28)]
Railroad Revenue Adequacy--2023 Determination
AGENCY: Surface Transportation Board.
ACTION: Notice of decision.
-----------------------------------------------------------------------
SUMMARY: On September 6, 2024, the Board served a decision announcing
the 2023 revenue adequacy determinations for the nation's Class I
railroads. Three Class I railroads (BNSF Railway Company, CSX
Transportation, Inc., and Union Pacific Railroad Company) were found to
be revenue adequate.
DATES: This decision is effective on September 6, 2024.
FOR FURTHER INFORMATION CONTACT: Pedro Ramirez, (202) 245-0333. If you
require an accommodation under the Americans with Disabilities Act,
please call (202) 245-0245.
SUPPLEMENTARY INFORMATION: Under 49 U.S.C. 10704(a)(3), the Board is
required to make an annual determination of railroad revenue adequacy.
A railroad is considered revenue adequate under 49 U.S.C. 10704(a) if
it achieves a rate of return on net investment (ROI) equal to at least
the current cost of capital for the railroad industry. For 2023, this
number was determined to be 9.87% in Railroad Cost of Capital--2023, EP
558 (Sub-No. 27) (STB served Aug. 7, 2024). The Board then applied this
revenue adequacy standard to each Class I railroad. Three Class I
carriers (BNSF Railway Company, CSX Transportation, Inc., and Union
Pacific Railroad Company) were found to be revenue adequate for 2023.
The decision in this proceeding is posted at www.stb.gov.
Decided: August 30, 2024.
By the Board, Board Members Fuchs, Hedlund, Primus, and Schultz.
Eden Besera,
Clearance Clerk.
[FR Doc. 2024-20210 Filed 9-6-24; 8:45 am]
BILLING CODE 4915-01-P | usgpo | 2024-10-08T13:26:25.449410 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20210.htm"
} |
FR | FR-2024-09-09/2024-20214 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73178-73179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20214]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
Aviation Rulemaking Advisory Committee; Amended Notice of Meeting
AGENCY: Federal Aviation Administration (FAA), U.S. Department of
Transportation (DOT).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The FAA is announcing an amendment to the notice of multiple
meetings of the Aviation Rulemaking Advisory Committee (ARAC).
DATES: For the meetings announced in the Federal Register on May 30,
2024 (89 FR 46984), notice is hereby given to change the September 12,
2024, ARAC public meeting to September 26, 2024, from 1 p.m. to 4 p.m.
eastern time.
The FAA must receive requests to attend the meeting by Monday,
September 16, 2024.
The FAA must receive requests for accommodations to a disability by
Thursday, September 19, 2024.
The FAA must receive any written materials to during the meeting by
Thursday, September 19, 2024.
ADDRESSES: This meeting will be held at the Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591, and
virtually on Zoom. Members of the public who wish to observe the
meeting must RSVP by emailing [email protected]. General committee
information, including copies of the meeting minutes, will be available
on the FAA Committee website (https://www.faa.gov/regulations_policies/rulemaking/committees/documents/) at least one week in advance of the
meeting.
FOR FURTHER INFORMATION CONTACT: Aliah Duckett, Federal Aviation
Administration, Office of Rulemaking, 800 Independence Avenue SW,
Washington, DC 20591, [email protected] or (202) 267-6952. Any
committee-related request should be sent to the person listed in this
section.
SUPPLEMENTARY INFORMATION:
I. Background
ARAC was established on January 22, 1991, under the Federal
Advisory Committee Act (FACA) and pursuant to Title 5 of the United
States Code (5 U.S.C. 1001 et seq.), as a discretionary committee. The
purpose of ARAC is to provide information, advice, and recommendations
to the Secretary of Transportation, through the FAA Administrator,
concerning rulemaking activities, such as aircraft operations, airman
and air agency certification, airworthiness standards and
certification, airports, maintenance, noise, and training.
II. Agenda
The agenda for the September 26, 2024, meeting will include the
following:
[ssquf] Welcome and Introductions
[ssquf] Federal Advisory Committee Act (FACA) Statement
[ssquf] Ratification of Minutes
[ssquf] Status Updates and Recommendation Reports
A. ARAC
[cir] Airman Certification System Working Group
[cir] Training Standardization Working Group
B. Transport Airplane and Engine (TAE) Subcommittee
[cir] Flight Test Harmonization Working Group
[cir] Ice Crystal Icing Working Group
[cir] Engine and Powerplant Interface Working Group
[ssquf] Any Other Business
[ssquf] FAA Update on Regulatory Activities
[ssquf] Adjourn
Detailed agenda information will be posted on the FAA Committee
website address listed in the ADDRESSES section at least one week in
advance of the meeting.
III. Public Participation
This meeting will be open to the public for virtual or in-person
attendance on a first-come, first-served basis, as there is limited
space. Please confirm your attendance with the person listed in the FOR
FURTHER INFORMATION CONTACT section and provide the following
information: full legal name, country of citizenship, and name of your
industry association or applicable affiliation. Please indicate if you
plan to observe the meeting in person or virtually. The FAA will email
registrants the meeting access information in a timely manner prior to
the start of the meeting.
The DOT is committed to providing equal access to this meeting for
all participants. If you need alternative formats or services because
of a disability, such as sign language, interpretation, or other
ancillary aids, please contact the person listed in the FOR FURTHER
INFORMATION CONTACT section of this notice no later than one week prior
to each meeting.
The FAA is not accepting oral presentations at the meetings due to
time constraints. Members of the public may present written statements
to ARAC by providing a copy to the Designated Federal Officer via the
email
[[Page 73179]]
listed in the FOR FURTHER INFORMATION CONTACT section of this notice no
later than one week before each meeting. Advance submissions that
become part of the committee deliberations will become part of the
official record of the meeting.
Issued in Washington, DC, on September 3, 2024.
Brandon Roberts,
Executive Director, Office of Rulemaking.
[FR Doc. 2024-20214 Filed 9-6-24; 8:45 am]
BILLING CODE 4910-13-P | usgpo | 2024-10-08T13:26:25.480450 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20214.htm"
} |
FR | FR-2024-09-09/2024-20271 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20271]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA-2024-1416]
Agency Information Collection Activities: Requests for Comments;
Clearance of a Renewed Approval of Information Collection: Helicopter
Air Ambulance Operator Reports
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice and request for comments.
-----------------------------------------------------------------------
SUMMARY: 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 Federal Register Notice with a 60-day comment period
soliciting comments on the following collection of information was
published on May 1, 2024. The collection involves the requirement for
Helicopter Air Ambulance Operators to report certain information to the
FAA. The FAA collects 14 pieces of data from helicopter air ambulance
operators, 8 of which are mandated in the report to Congress. We
collect data on the following: number of helicopters, helicopter base
locations, number of hours the helicopters are flown, number of
patients transported, number of transportation requests accepted or
denied, number of accidents, number of instrument flight hours flown,
number of night flight hours flown, number of incidents, and the rate
of accidents or incidents per 100,000 flight hours. The information to
be collected will be used in helping the FAA develop risk mitigation
strategies and provide information to Congress.
DATES: Written comments should be submitted by October 9, 2024.
ADDRESSES: Written comments and recommendations for the proposed
information collection should be sent within 30 days of publication of
this notice to www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under 30-day Review--
Open for Public Comments'' or by using the search function.
FOR FURTHER INFORMATION CONTACT: Sandra L. Ray by email at:
[email protected]; phone: 412-546-7344.
SUPPLEMENTARY INFORMATION:
Public Comments Invited: You are asked to comment on any aspect of
this information collection, including (a) Whether the proposed
collection of information is necessary for FAA's performance; (b) the
accuracy of the estimated burden; (c) ways for FAA to enhance the
quality, utility and clarity of the information collection; and (d)
ways that the burden could be minimized without reducing the quality of
the collected information.
OMB Control Number: 2120-0761.
Title: Helicopter Air Ambulance Operator Reports.
Form Numbers: 2120-0756.
Type of Review: Renewal of an information collection.
Background: The Federal Register Notice with a 60-day comment
period soliciting comments on the following collection of information
was published on May 1, 2024 (89 FR 35299). The FAA Modernization and
Reform Act of 2012 (The Act) mandates that all helicopter air ambulance
operators must begin reporting the number of flights and hours flown,
along with other specified information, during which helicopters
operated by the certificate holder were providing helicopter air
ambulance services. See Public Law 112-95, sec. 306, 49 U.S.C. 44731.
The Act further mandates that not later than 2 years after the date of
enactment, and annually thereafter, the Administrator shall submit to
the Committee on Transportation and Infrastructure of the House of
Representatives and the Committee on Commerce, Science, and
Transportation of the Senate, a report containing a summary of the data
collected.
The helicopter air ambulance operational data provided to the FAA
will be used by the agency as background information useful in the
development of risk mitigation strategies to reduce the helicopter air
ambulance accident rate, and to meet the mandates set by Congress. The
information requested is limited to the minimum necessary to fulfill
these new reporting requirements mandated by the Act and as developed
by FAA. The amount of data required to be submitted is proportional to
the size of the operation.
Respondents: 65 Helicopter Air Ambulance Operators.
Frequency: Annually.
Estimated Average Burden per Response: Varies per size of
operation.
Estimated Total Annual Burden: 765 Hours for all operators.
Issued in Washington, DC, on September 4, 2024.
Sandra L. Ray,
Aviation Safety Inspector, AFS-260.
[FR Doc. 2024-20271 Filed 9-6-24; 8:45 am]
BILLING CODE 4910-13-P | usgpo | 2024-10-08T13:26:25.539096 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20271.htm"
} |
FR | FR-2024-09-09/2024-20185 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73179-73181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20185]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Environmental Impact Statement; Nueces and Kleberg Counties,
Texas
AGENCY: Federal Highway Administration (FHWA), Department of
Transportation.
ACTION: Federal notice of intent to prepare an Environmental Impact
Statement (EIS).
-----------------------------------------------------------------------
SUMMARY: FHWA, on behalf of TxDOT, is issuing this notice to advise the
public that an EIS will be prepared for the proposed Regional Parkway-
North Padre Island transportation project (CSJ 0916-00-259) located in
the City of Corpus Christi in Nueces and Kleberg counties, Texas. The
proposed project would explore alternatives including potential route
options for a proposed new crossing of the Laguna Madre and an option
for improving the existing State Highway (SH) 358/Park Road (PR) 22
corridor, from the Corpus Christi mainland to North Padre Island.
FOR FURTHER INFORMATION CONTACT: Mr. Victor Vourcos, P.E., TxDOT
Project Manager, by mail at TxDOT Corpus Christi District Office, c/o
Victor Vourcos, 1701 S. Padre Island Dr., Corpus Christi, Texas 78416,
by phone at 361-808-2378, and by email at [email protected].
SUPPLEMENTARY INFORMATION: The environmental review, consultation, and
other actions required by applicable Federal environmental laws for
this project are being, or have been, carried out by TxDOT pursuant to
23 U.S.C. 327 and a Memorandum of Understanding dated December 9, 2019,
and executed by FHWA and TxDOT.
The purpose of the project is to improve the resiliency of the
existing transportation network by improving access to emergency
services, medical facilities, and critical infrastructure especially in
times of emergency response, hurricane evacuation, and incident
management; facilitate regional
[[Page 73180]]
mobility, connectivity, and system linkages; address operational and
safety issues in the study area; and improve mobility and provide
travel options especially during peak-season travel demand.
The proposed project is needed due to lack of resiliency in the
existing transportation network; limited routes for traffic traveling
to/from Corpus Christi and the Islands, especially during emergencies,
incidents, and hurricane evacuations; operational and safety issues in
the existing SH 358/PR 22 corridor; and seasonal congestion in the SH
358/PR 22 corridor and other major east-west routes, especially during
peak-season travel demand.
The proposed Regional Parkway-North Padre Island Project (CSJ 0916-
00-259) would potentially construct a new crossing of the Laguna Madre
or improve the existing SH 358/PR 22 alignment, from the Corpus Christi
mainland to North Padre Island, in Nueces and Kleberg counties, Texas.
The study area for the evaluation of the potential new location roadway
alternatives begins at SH 286, crosses the Laguna Madre, and ends at PR
22, on North Padre Island. On North Padre Island, the study area
extends south approximately 4 miles southwest of the Nueces/Kleberg
County line, ending at the boundary of the Padre Island National
Seashore. The study area for the evaluation of potential improvements
of existing SH 358 and PR 22 encompasses a 1,000-foot-wide buffer from
the intersection at SH 286 to SH 361 on North Padre Island.
The EIS will evaluate a range of build alternatives and a no-build
alternative. The five possible build alternatives have been labeled
Green, Purple, Orange, Blue, and Pink alternatives.
The Green Alternative would upgrade existing SH 358 along the
alignment from SH 286 to Naval Air Station (NAS) Drive and the existing
alignment of PR 22 from NAS Drive to SH 361 for approximately 16 miles,
which could include a parallel structure over the Laguna Madre.
The Purple Alternative would upgrade and expand existing Yorktown
Boulevard with connection on new location to SH 286, with the addition
of a second causeway over the Laguna Madre connecting to PR 22 on North
Padre Island. The Purple Alternative would be approximately 16 miles in
length.
The Orange Alternative would consist of a new location roadway
approximately 15 miles in length, originating at the intersection of SH
286 and County Road (CR) 18 in Nueces County.
The Orange Alternative would include a second crossing over the
Laguna Madre and upgrade existing Sea Pines Drive, terminating at PR 22
on North Padre Island in Nueces County.
The Blue Alternative would consist of a new location roadway
approximately 14 miles in length, originating at the intersection of SH
286 and CR 14 in Nueces County with a second crossing over the Laguna
Madre and terminates at PR 22 on North Padre Island in Kleberg County.
The Pink Alternative consists of a new location roadway
approximately 13 miles in length, originating at the intersection of SH
286 and Farm-to-Market Road (FM) 70 in Nueces County.
The Pink Alternative alignment includes a second crossing over the
Laguna Madre and terminates at PR 22 on North Padre Island in Kleberg
County.
The alternatives to be presented in the EIS are a result of
previous transportation planning studies conducted throughout the last
30 years which have identified the need for transportation improvements
within the Regional Parkway study area.
Impacts caused by the construction and operation of the proposed
improvements would vary depending on the selection of the recommended
alternative. The recommended alternative may result in impacts to
communities and resources including: potential residential and business
displacements, including low-income and minority residents; wildlife/
habitat (threatened and endangered species); wetlands and waters of the
U.S.; coastal resources, floodplain/floodway encroachment; section 4(f)
of the U.S. Department of Transportation Act and chapter 26 of the
Parks and Wildlife Code (park and recreational lands, wildlife and
waterfowl refuges, and historic sites); visual environment;
transportation (construction detours, construction traffic, and
mobility); air quality and noise from construction equipment and
operation of the roadway; hazardous materials sites; land use and
farmland; cultural resources; and induced growth and cumulative
impacts.
The proposed action may require issuance of an Individual or
Nationwide Permit under section 404 of the Clean Water Act, a Permit
under section 10 of the Rivers and Harbors Act, a Bridge Permit under
section 9 of the Rivers and Harbors Act, section 401 Water Quality
Certification, Section 402/Texas Pollution Discharge Elimination System
Permit, Texas Antiquities Code Permit; conformance with Executive
Orders (E.O.s) on Environmental Justice (E.O. 12898), Limited English
Proficiency (E.O. 13166), Wetlands (E.O. 11990), Floodplain Management
(E.O. 11988), Invasive Species (E.O. 13112); compliance with section
106 of the National Historic Preservation Act, section 7 of the
Endangered Species Act, the Magnuson-Stevens Fishery Conservation and
Management Reauthorization Act of 2006, the Marine Mammal Protection
Act, the Migratory Bird Treaty Act, section 4(f) of the DOT Act (49
U.S.C. 303), section 6(f) of the Land and Water Conservation Act (16
U.S.C. 4601), title VI of the Civil Rights Act, Coastal Barrier
Resources Act of 1982, and other applicable Federal and State
regulations.
TxDOT anticipates issuing the Draft EIS for public and agency
review in March 2026 and completing the study process with a combined
Final EIS and Record of Decision by September 2026.
The following entities have been invited to be cooperating agencies
for this EIS: U.S. Army Corps of Engineers, U.S. Coast Guard, U.S.
Department of Agriculture Natural Resources Conservation Service, U.S.
Department of Housing and Urban Development, U.S. Department of the
Navy, U.S. Environmental Protection Agency, Federal Aviation
Administration, Federal Emergency Management Agency, Federal Railroad
Administration, Federal Transit Administration, U.S. Fish and Wildlife
Service, National Marine Fisheries Service, National Park Service,
Apache Tribe of Oklahoma, Comanche Nation of Oklahoma, Kiowa Tribe,
Mescalero Apache Tribe, Seminole Nation of Oklahoma, and Tonkawa Tribe
of Oklahoma.
The following entities have been invited to be participating
agencies for this EIS: Railroad Commission of Texas, Texas Coastal
Coordination Advisory Committee, Texas Commission on Environmental
Quality, Texas Department of Housing and Community Affairs, Texas
Division of Emergency Management, Texas General Land Office, Texas
Historical Commission/State Historic Preservation Office, Texas Parks
and Wildlife Department, City of Corpus Christi, City of Corpus Christi
Historic Preservation Office, City of Port Aransas, Coastal Bend
Council of Governments, Corpus Christi Metropolitan Planning
Organization, Corpus Christi Regional Economic Development Corporation,
Corpus Christi Regional Transit Authority, Kleberg County, Kleberg
County Historical Commission, Nueces County, Nueces County Historical
Commission, Historic Bridge Foundation, and Kenedy
[[Page 73181]]
County Groundwater Conservation District.
TxDOT will issue a single Final Environmental Impact Statement and
Record of Decision document pursuant to 23 U.S.C. 139(n)(2), unless
TxDOT determines statutory criteria or practicability considerations
preclude issuance of a combined document.
In accordance with 23 U.S.C. 139, cooperating agencies,
participating agencies, and the public will be given an opportunity for
continued input on project development. An in-person public scoping
meeting is planned for Oct. 3, 2024, from 3 to 7 p.m. CT at Mansion
Royal, 8001 S. Padre Island Dr., Corpus Christi, Texas 78412. A virtual
option will go live at 3 p.m. CT on Oct. 3, 2024 at www.txdot.gov,
keyword search ``Regional Parkway''. Additional information on both
options will be provided at the previously indicated TxDOT website. The
public scoping meeting will provide an opportunity for the public to
review and comment on the draft coordination plan and schedule, the
project purpose and need, the range of alternatives, and methodologies
and level of detail for analyzing alternatives. It will also allow the
public an opportunity to provide input on any expected environmental
impacts, anticipated permits or other authorizations, and any
significant issues that should be analyzed in depth in the EIS. In
addition to the public scoping meeting, a public hearing will be held
after the draft EIS is prepared. Public notice will be given of the
time and place of the meeting and hearing.
The public scoping meeting will be conducted in English, with
Spanish materials available online and in person. If you need an
interpreter or document translator because English is not your primary
language or have difficulty communicating effectively in English, one
will be provided to you. If you have a disability and need assistance,
special arrangements can be made to accommodate most needs. If you need
interpretation or translation services or you are a person with a
disability who requires an accommodation to attend and participate in
the public meeting, please contact Rickey Dailey, TxDOT Corpus Christi
District, at [email protected] or please call 361-808-2544 no
later than 4 p.m. CT, Sept. 30, 2024. Please be aware that advance
notice is required as some services and accommodations may require time
for TxDOT to arrange.
The public is requested to provide comments on alternatives or
impacts and on relevant information, studies, or analyses with respect
to this proposed project. Comments may be provided in writing by mail
to TxDOT Corpus Christi District Office, c/o Victor Vourcos, 1701 S.
Padre Island Dr., Corpus Christi, Texas 78416, or by email to
[email protected]. Comments must be received on or before Oct.
18, 2024.
(Catalog of Federal Domestic Assistance Program Number 20.205,
Highway Planning and Construction.)
Michael T. Leary,
Director, Planning and Program Development, Federal Highway
Administration.
[FR Doc. 2024-20185 Filed 9-6-24; 8:45 am]
BILLING CODE 4910-22-P | usgpo | 2024-10-08T13:26:25.600677 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20185.htm"
} |
FR | FR-2024-09-09/2024-20173 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73181-73182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20173]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2012-0332; FMCSA-2013-0123; FMCSA-2013-0124; FMCSA-
2015-0328; FMCSA-2015-0329; FMCSA-2017-0059; FMCSA-2017-0061; FMCSA-
2019-0111; FMCSA-2021-0013; FMCSA-2022-0032]
Qualification of Drivers; Exemption Applications; Hearing
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of final disposition.
-----------------------------------------------------------------------
SUMMARY: FMCSA announces its decision to renew exemptions for 11
individuals from the hearing requirement in the Federal Motor Carrier
Safety Regulations (FMCSRs) for interstate commercial motor vehicle
(CMV) drivers. The exemptions enable these hard of hearing and deaf
individuals to continue to operate CMVs in interstate commerce.
DATES: The exemptions were applicable on August 22, 2024. The
exemptions expire on August 22, 2026.
FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief,
Medical Programs Division, FMCSA, DOT, 1200 New Jersey Avenue SE, Room
W64-224, Washington, DC 20590-0001, (202) 366-4001,
[email protected]. Office hours are 8:30 a.m. to 5 p.m. ET Monday
through Friday, except Federal holidays. If you have questions
regarding viewing or submitting material to the docket, contact Dockets
Operations, (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation
A. Viewing Comments
To view comments go to www.regulations.gov. Insert the docket
number (FMCSA-2012-0332, FMCSA-2013-0123, FMCSA-2013-0124, FMCSA-2015-
0328, FMCSA-2015-0329, FMCSA-2017-0059, FMCSA-2017-0061, FMCSA-2019-
0111, FMCSA-2021-0013, or FMCSA-2022-0032) in the keyword box and click
``Search.'' Next, sort the results by ``Posted (Newer-Older),'' choose
the first notice listed, and click ``Browse Comments.'' If you do not
have access to the internet, you may view the docket online by visiting
Dockets Operations on the ground floor of the DOT West Building, 1200
New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5
p.m. ET Monday through Friday, except Federal holidays. To be sure
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Dockets Operations.
B. Privacy Act
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments
from the public on the exemption requests. DOT posts these comments,
without edit, including any personal information the commenter
provides, to www.regulations.gov. As described in the system of records
notice DOT/ALL 14 (Federal Docket Management System), which can be
reviewed at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices, the comments are searchable by the name of
the submitter.
II. Background
On July 24, 2024, FMCSA published a notice announcing its decision
to renew exemptions for 11 individuals from the hearing standard in 49
CFR 391.41(b)(11) to operate a CMV in interstate commerce and requested
comments from the public (89 FR 59962). The public comment period ended
on August 23, 2024, and no comments were received.
FMCSA has evaluated the eligibility of these applicants and
determined that renewing these exemptions would likely achieve a level
of safety that is equivalent to, or greater than, the level that would
be achieved by complying with Sec. 391.41(b)(11).
The physical qualification standard for drivers regarding hearing
found in Sec. 391.41(b)(11) states that a person is physically
qualified to drive a CMV if that person first perceives a forced
whispered voice in the better ear at not less than 5 feet with or
without the use of a hearing aid or, if tested by use of an audiometric
device, does not have an average hearing loss in the better ear greater
than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a
hearing aid when the audiometric
[[Page 73182]]
device is calibrated to American National Standard (formerly ASA
Standard) Z24.5--1951.
This standard was adopted in 1970 and was revised in 1971 to allow
drivers to be qualified under this standard while wearing a hearing aid
(35 FR 6458, 6463 (Apr. 22, 1970) and 36 FR 12857 (July 8, 1971),
respectively).
III. Discussion of Comments
FMCSA received no comments in this proceeding.
IV. Conclusion
Based upon its evaluation of the 11 renewal exemption applications
and comments received, FMCSA announces its decision to exempt the
following drivers from the hearing requirement in Sec. 391.41(b)(11).
As of August 22, 2024, and in accordance with 49 U.S.C. 31136(e)
and 31315(b), the following 11 individuals have satisfied the renewal
conditions for obtaining an exemption from the hearing requirement in
the FMCSRs for interstate CMV drivers (89 FR 59962):
Thomas Buretz (FL)
Adrian Crutchfield (MO)
Ruben Faulkwell (TX)
Nicholas Green (FL)
Jada Hart (IA)
Paul Micolichek (WA)
Christopher Poole (OH)
James Queen (FL)
Wayne Turner (IL)
Joshua Weaver (GA)
James Weir (AZ)
The drivers were included in docket number FMCSA-2012-0332, FMCSA-
2013-0123, FMCSA-2013-0124, FMCSA-2015-0328, FMCSA-2015-0329, FMCSA-
2017-0059, FMCSA-2017-0061, FMCSA-2019-0111, FMCSA-2021-0013, or FMCSA-
2022-0032. Their exemptions were applicable as of August 22, 2024 and
will expire on August 22, 2026.
In accordance with 49 U.S.C. 31315(b), each exemption will be valid
for 2 years from the effective date unless revoked earlier by FMCSA.
The exemption will be revoked if the following occurs: (1) the person
fails to comply with the terms and conditions of the exemption; (2) the
exemption has resulted in a lower level of safety than was maintained
prior to being granted; or (3) continuation of the exemption would not
be consistent with the goals and objectives of 49 U.S.C. 31136, 49
U.S.C. chapter 313, or the FMCSRs.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2024-20173 Filed 9-6-24; 8:45 am]
BILLING CODE 4910-EX-P | usgpo | 2024-10-08T13:26:25.649329 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20173.htm"
} |
FR | FR-2024-09-09/2024-20247 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73182-73184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20247]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket No. FRA-2024-0096]
Application Package From the State of Ohio to the Surface
Transportation Project Delivery Program and Proposed Memorandum of
Understanding (MOU) Assigning Environmental Responsibilities to the
State
AGENCY: Federal Railroad Administration (FRA), U.S. Department of
Transportation (DOT).
ACTION: Notice, request for comments.
-----------------------------------------------------------------------
SUMMARY: This notice announces that FRA has received and reviewed an
application package from the State of Ohio (State), Ohio Department of
Transportation (ODOT) in conjunction with the Ohio Rail Development
Commission (ORDC), requesting participation in the Surface
Transportation Project Delivery Program (Program). Under the Program,
FRA may assign, and the State may assume, responsibilities under the
National Environmental Policy Act (NEPA), and all or part of FRA's
responsibilities for environmental review, consultation, or other
actions required under any Federal environmental laws with respect to
one or more railroad projects within the State. FRA has determined the
application package to be complete and developed a draft MOU with the
State outlining how the State will implement the Program with FRA
oversight. The public is invited to comment on the State's request,
including its application package and the proposed MOU, which includes
the proposed assignments and assumptions of environmental review,
consultation, and other activities.
DATES: Comments must be received on or before October 9, 2024.
ADDRESSES: Comments related to Docket No. FRA-2024-0096 may be
submitted by going to https://www.regulations.gov and following the
online instructions for submitting comments.
Instructions: All submissions must refer to the Federal Railroad
Administration and the docket number in this notice (FRA-2024-0096).
Note that all submissions received, including any personal information
provided, will be posted without change and will be available to the
public on https://www.regulations.gov. You may review DOT's complete
Privacy Act Statement in the Federal Register published April 11, 2000
(65 FR 19477), or at https://www.transportation.gov/privacy.
FOR FURTHER INFORMATION CONTACT: For questions about this notice, for
FRA, please contact Ms. Lana Lau, Supervisory Environmental Protection
Specialist, Office of Environmental Program Management, Federal
Railroad Administration, telephone (202) 923-5314, email:
[email protected]. For ODOT, please contact Mr. Timothy Hill,
Administrator of ODOT's Office of Environmental Services, Ohio
Department of Transportation, 1980 West Broad Street, Mail Stop 4170,
Columbus, Ohio 43223, telephone: (614) 644-0377; email:
[email protected].
SUPPLEMENTARY INFORMATION:
Background: Section 327 of title 23, United States Code (23 U.S.C.
327) establishes the Surface Transportation Project Delivery Program
(Program). It allows the Secretary of the U.S. Department of
Transportation (Secretary) to assign, and a State to assume,
responsibility for all or part of the Secretary's responsibilities for
environmental review, consultation, or other actions required under
NEPA (42 U.S.C. 4321 et seq.) and any Federal environmental law with
respect to one or more highway projects within the State, as well as
one or more railroad, public transportation, and/or multimodal
projects.\1\ FRA is authorized to act on behalf of the Secretary with
respect to these matters for railroad projects.
---------------------------------------------------------------------------
\1\ The Secretary may not assign its responsibility for making
any conformity determination required under section 176 of the Clean
Air Act. Also not assignable is Government to Government
consultation with federally recognized Indian Tribes.
---------------------------------------------------------------------------
The State of Ohio initially participated in the Federal Highway
Administration's (FHWA) Surface Transportation Project Delivery Program
and in accordance with 23 U.S.C. 327, entered into a Memorandum of
Understanding (MOU) with the Federal Highway Administration (FHWA) for
the FHWA NEPA Assignment program in Ohio. The NEPA Assignment MOU
between the State, acting through ODOT, and FHWA became effective
December 11, 2015, was amended on June 6, 2018, and renewed on December
14, 2020. Since being accepted into the FHWA NEPA Assignment program,
the State has successfully completed four audits, eight self-
assessments, and one monitoring event; a second monitoring event, as
required under the MOU, is currently underway. FHWA has consistently
publicly stated that the State continues to meet all requirements of
the NEPA Assignment program and has held the State up as an example for
other states to follow. The State will
[[Page 73183]]
have participated in the Program for 9 years on December 11, 2024.
Pursuant to 23 CFR 773.107(b)(1) and (2): Public comment, the
State's draft application was publicly noticed on June 2, 2024, for a
30-day comment period, with comments due by the close of business on
July 2, 2024. A notice of the draft application's availability was
published in the newspaper with the largest circulation in the
following cities: Columbus, Cincinnati, Cleveland, Dayton, and Toledo.
The State also sent notice of the application by email or letter with
request for comment to federal and state resource agencies and
federally recognized tribal governments. Lastly, the State sent notices
to various associations and other groups and posted the availability of
the application and how to provide comments on ODOT's website. On July
24, 2024, the State formally submitted its Application Package to FRA.
The submission includes verification of statewide notice and
solicitation of public comment, copies of the State's responses to
comments and incorporation of comments into the application package,
Ohio's determination that the State of Ohio Public Records Act is
comparable to the Federal Freedom of Information Act, draft MOU, and
the Director of ODOT's signature approving the application.
Under the proposed MOU, FRA would assign to the State the
responsibility for making decisions on railroad projects as described
in the State's application and in Part 3 of the draft MOU. The State is
requesting to assume FRA's responsibilities under NEPA for the
following classes of rail projects upon execution of the NEPA
Assignment Program MOU with FRA. This includes all railroad projects in
Ohio whose source of federal funding comes from FRA or require FRA
approvals that are administered by ODOT or ORDC; these projects may
include funding from other federal sources as well. For these projects,
the State requests to assume only FRA's NEPA responsibilities; the
request does not include assuming the NEPA responsibilities of other
federal agencies
Lastly, the State would establish appropriate relationships with
other Operating Administration(s) involved in a multimodal project,
including cooperating agency, participating agency, and lead or co-lead
agency relationships under NEPA. In addition, the State may use or
adopt other federal agencies' NEPA analyses consistent with 40 CFR
parts 1500-1508 and USDOT and FRA regulations, policies, and guidance.
ODOT's assumption of these responsibilities program-wide will provide
for the highest degree of consistency and efficiency in document review
and agency coordination. It will also provide the greatest opportunity
for streamlining benefits.
Excluded from assignment are the following:
(1) Railroad projects that cross state boundaries or that cross or
are adjacent to international boundaries. For purposes of the State's
application and the proposed MOU, a project is considered ``adjacent to
international boundaries'' if it requires the issuance of a new, or
modification of an existing, Presidential Permit.
(2) As provided at 23 U.S.C. 327(a)(2)(D), any railroad project
that is not assumed by the State as identified in the State's
application and under subpart 3.3 of the proposed MOU, remains the
responsibility of FRA.
Under the proposed MOU, the State would also assume the
responsibility to conduct the following environmental review,
reevaluation, consultation, or other action pertaining to the review or
approval of railroad projects specified under MOU subpart 3.3 and
required under the following Federal environmental laws and executive
orders related to railroad projects:
Environmental Review Process
Efficient environmental reviews for project decision-making, 23 U.S.C.
139
Efficient environmental reviews, 49 U.S.C. 24201
Air Quality
Clean Air Act (CAA), 42 U.S.C. 7401-7671q, with the exception of any
project-level general conformity determinations, 42 U.S.C 7506
Noise
Noise Control Act of 1972, 42 U.S.C. 4901-4918
Wildlife
Endangered Species Act of 1973 (ESA), 16 U.S.C. 1531-1544
Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d
Migratory Bird Treaty Act, 16 U.S.C. 703-712
Hazardous Materials Management
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. 9601-9675
Superfund Amendments and Reauthorization Act (SARA), 42 U.S.C. 9671-
9675
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-6992k
Historic and Cultural Resources
National Historic Preservation Act of 1966, as amended, 54 U.S.C.
300101-307108, et seq. except to the extent 23 CFR 773.105(b)(4)
requires FRA to retain responsibility for government-to-government
consultation with Indian Tribes
23 U.S.C. 138 and section 4(f) of the Department of Transportation Act
of 1966, 49 U.S.C. 303 and implementing regulations at 23 CFR part 774
Archeological and Historic Preservation Act of 1966, as amended, 16
U.S.C. 469-469c
Archeological Resources Protection Act, 16 U.S.C. 470aa-470mm, title
54, chapter 3125
Preservation of Historical and Archeological Data, 54 U.S.C. 312501-
312508
Native American Graves Protection and Repatriation Act (NAGPRA), 25
U.S.C. 3001-3013; 18 U.S.C. 1170
Social and Economic Impacts
American Indian Religious Freedom Act, 42 U.S.C. 1996
Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209
Water Resources and Wetlands
Clean Water Act, 33 U.S.C. 1251-1387 (sections 401, 402, 404, 408, and
section 319)
Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
Coastal Zone Management Act, 16 U.S.C. 1451-1466
Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
Flood Disaster Protection Act, 42 U.S.C. 4001-4133
General Bridge Act of 1946, 33 U.S.C. 525-533
Rivers and Harbors Act of 1899, 33 U.S.C. 401-406
Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14)
Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
Parklands and Other Special Land Uses
49 U.S.C. 303 (section 4(f)) and implementing regulations at 23 CFR
part 774
Land and Water Conservation Fund (LWCF) Act, 54 U.S.C. 200302-200310
Executive Orders
E.O. 11990, Protection of Wetlands
E.O. 11988, Floodplain Management (except approving design standards
and determinations that a significant encroachment is the only
practicable
[[Page 73184]]
alternative under 23 CFR 650.113 and 650.115.
E.O. 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations
E.O. 13112, Invasive Species, as amended by E.O. 13751, Safeguarding
the Nation from the Impacts of Invasive Species
E.O. 13985, Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government
E.O. 13990, Protecting Public Health and the Environment and Restoring
Science to Tackle the Climate Crisis
E.O. 14008, Tackling the Climate Change Crisis at Home and Abroad
E.O. 14096, Revitalizing Our Nation's Commitment to Environmental
Justice for All
Other Executive Orders not listed, but related to railroad projects
The proposed MOU would allow the State to act in the place of FRA
in carrying out the environmental review-related functions described
above, except with respect to Government-to-Government consultations
with federally recognized Indian Tribes. The State would continue to
handle routine consultations with the Tribes and understands that a
Tribe has the right to direct consultation with FRA upon request. The
State may assist FRA with Government-to-Government consultations, with
consent of a Tribe, but FRA remains responsible for the consultation.
In addition, the State would not assume FRA's responsibilities for
conformity determinations required under section 176 of the CAA (42
U.S.C. 7506), or any responsibility under 23 U.S.C. 134 or 135, or
under 49 U.S.C. 5303 or 5304.
FRA will consider the comments submitted on the State's application
and the proposed MOU. A copy of the application package and proposed
MOU may be viewed on the docket (FRA-2024-0096) at www.regulations.gov.
A copy also may be viewed on ODOT's website at: https://www.transportation.ohio.gov/programs/nepa-odot/nepa-assignment-documentation. Any final MOU approved by FRA may include changes based
on comments and consultations relating to the proposed MOU and will be
made publicly available.
Authority: 23 U.S.C. 327; 42 U.S.C. 4331, 4332; 23 CFR part 773; 40
CFR 1507.3; and 49 CFR 264.101.
Marlys Osterhues,
Director, Office of Environmental Program Management, Office of
Railroad Administration.
[FR Doc. 2024-20247 Filed 9-6-24; 8:45 am]
BILLING CODE 4910-06-P | usgpo | 2024-10-08T13:26:25.694753 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20247.htm"
} |
FR | FR-2024-09-09/2024-20190 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73184-73185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20190]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
Limitation on Claims Against Proposed Public Transportation
Project--Operations and Maintenance Facility South, Federal Way, King
County, Washington
AGENCY: Federal Transit Administration (FTA), Department of
Transportation (DOT).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This notice announces final environmental actions taken by the
Federal Transit Administration (FTA) regarding the Operations and
Maintenance Facility South, Federal Way, King County, Washington. The
purpose of this notice is to publicly announce FTA's environmental
decisions on the subject project, and to activate the limitation on any
claims that may challenge these final environmental actions.
DATES: A claim seeking judicial review of FTA actions announced herein
for the listed public transportation project will be barred unless the
claim is filed on or before February 6, 2025.
FOR FURTHER INFORMATION CONTACT: Kathryn Loster, Assistant Chief
Counsel, Office of Chief Counsel, (312) 705-1269, or Saadat Khan,
Environmental Protection Specialist, Office of Environmental Programs,
(202) 366-9647. FTA is located at 1200 New Jersey Avenue SE,
Washington, DC 20590. Office hours are from 9:00 a.m. to 5:00 p.m.,
Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION: Notice is hereby given that FTA has taken
final agency actions subject to 23 U.S.C. 139(l) by issuing certain
approvals for the public transportation project listed below. The
actions on the project, as well as the laws under which such actions
were taken, are described in the documentation issued in connection
with the project to comply with the National Environmental Policy Act
(NEPA) and in other documents in the FTA environmental project files
for the project. Interested parties may contact either the project
sponsor or the relevant FTA Regional Office for more information.
Contact information for FTA's Regional Offices may be found at https://www.transit.dot.gov/about/regional-offices/regional-offices.
This notice applies to all FTA decisions on the listed project as
of the issuance date of this notice and all laws under which such
actions were taken, including, but not limited to, NEPA (42 U.S.C.
4321-4375), Section 4(f) requirements (49 U.S.C. 303), Section 106 of
the National Historic Preservation Act (54 U.S.C. 306108), Endangered
Species Act (16 U.S.C. 1531), Magnuson-Stevens Fisheries Conservation
and Management Act (16 U.S.C. 1801), Migratory Bird Treaty Act (16
U.S.C. 703-712), Clean Water Act (33 U.S.C. 1251), the Uniform
Relocation and Real Property Acquisition Policies Act (42 U.S.C. 4601),
Coastal Zone Management Act (16 U.S.C. 1451-1462) and the Clean Air Act
(42 U.S.C. 7401-7671q). This notice does not, however, alter or extend
the limitation period for challenges of project decisions subject to
previous notices published in the Federal Register. The project
modifications and actions that are the subject of this notice follow:
Project name and location: Operations and Maintenance Facility
South (Project), Federal Way, King County, Washington.
Project sponsor: Central Puget Sound Regional Transit Authority
(Sound Transit), Seattle, King County, Washington.
Project description: The Project would construct and operate a
light rail operations and maintenance facility (OMF) in its South
Corridor. The OMF would be constructed on 66 acres and provide capacity
to receive, test, commission, store, maintain, and deploy an expanded
fleet of light rail vehicles (LRVs) to support the Link light rail
system expansion goal as part of Sound Transit 3: The Regional Transit
System Plan for Central Puget Sound (Sound Transit 3). The facility
will include the OMF building, Maintenance of Way (MOW) building, the
Link System-Wide Storage building, OMF tracks that provide staging for
LRVs, parking (480 spaces), training tracks, and yard areas. The
Project also involves construction of new mainline track (1.4 miles), a
0.9-mile test track running parallel to the mainline tracks, and a tail
track connecting the facility to the light rail system.
Final agency actions: Section 106 no adverse effect determination,
dated October 31, 2023; Section 4(f) de minimis impact determination,
dated October 31, 2023; and Operations and
[[Page 73185]]
Maintenance Facility South Record of Decision (ROD), dated August 7,
2024.
Supporting documentation: Operations and Maintenance Facility South
Project Final Environmental Impact Statement (FEIS), dated June 7,
2024, and Operations and Maintenance Facility South Project Draft
Environmental Impact Statement (DEIS) dated September 22, 2023. The
ROD, FEIS, DEIS and associated documents can be viewed and downloaded
from: https://www.soundtransit.org/system-expansion/operations-maintenance-facility-south.
Authority: 23 U.S.C. 139(l)(1).
Megan Blum,
Deputy Associate Administrator for Planning and Environment.
[FR Doc. 2024-20190 Filed 9-6-24; 8:45 am]
BILLING CODE 4910-57-P | usgpo | 2024-10-08T13:26:25.789250 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20190.htm"
} |
FR | FR-2024-09-09/2024-20257 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73185-73186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20257]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2024-0009]
Notice of Proposed Buy America Waiver and Request for Comment
AGENCY: Federal Transit Administration, Department of Transportation.
ACTION: Notice; request for comment.
-----------------------------------------------------------------------
SUMMARY: The Federal Transit Administration (FTA) received a request
from the Detroit Transportation Corporation (DTC) for a Buy America
nonavailability waiver for the procurement of special trackwork turnout
switch components needed to keep the DTC's Elevated Guideway in a state
of good repair. FTA is providing notice of the nonavailability waiver
request and seeks public comment before deciding whether to grant the
request. If granted, the waiver would apply for the switch components
identified in the waiver request.
DATES: Comments must be received by September 24, 2024. Late-filed
comments will be considered to the extent practicable.
ADDRESSES: Please submit all comments electronically to the Federal
eRulemaking Portal. Go to https://www.regulations.gov and follow the
instructions for submitting comments.
Instructions: All submissions must refer to the Federal Transit
Administration and the docket number of this notice. Note that all
submissions received, including any personal information provided, will
be posted without change and will be available to the public on https://www.regulations.gov. You may review DOT's complete Privacy Act
Statement in the Federal Register published April 11, 2000 (65 FR
19477), or at https://www.transportation.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Jason Luebbers, FTA Attorney-Advisor,
at (202) 366-8864 or [email protected].
SUPPLEMENTARY INFORMATION: The purpose of this notice is to seek public
comment on whether the FTA should grant a nonavailability waiver for
the Detroit Transportation Corporation (DTC) for the procurement of
replacement special trackwork turnout switch components (the
``switch'').
Background
With certain exceptions, FTA's Buy America requirements prevent FTA
from obligating an amount that may be appropriated to carry out its
program for a project unless ``the steel, iron, and manufactured goods
used in the project are produced in the United States.'' 49 U.S.C.
5323(j)(1). A manufactured product is considered produced in the United
States if: (1) all of the manufacturing processes for the product take
place in the United States; and (2) all of the components of the
product are of U.S. origin. A component is considered of U.S. origin if
it is manufactured in the United States, regardless of the origin of
its subcomponents. 49 CFR 661.5(d).
FTA may waive Buy America requirements for a product if, among
other reasons, a compliant version of the product is not produced in a
sufficient and reasonably available amount or is not of a satisfactory
quality. 49 U.S.C. 5323(j)(2)(B). FTA cannot deny a request for a
nonavailability waiver unless it can provide the waiver applicant with
a written certification that: the item is produced in the United States
in a sufficient and reasonably available amount; the item produced in
the United States is of a satisfactory quality; and includes a list of
known manufacturers in the United States from which the item can be
obtained. 49 U.S.C. 5323(j)(6).
DTC is the owner and operator of the Detroit People Mover, which is
the largest municipal rail system in Michigan. It is an automated light
rail system that operates twelve rail cars on an elevated single track
in a 2.9-mile loop with thirteen passenger stations in Detroit's
central business district.
The existing switches were installed as original equipment in 1987
and designed to European standards, using AREMA 115RE rail throughout
the turnout with a special EN60E1A1 switch point section. The proper
operation of the switch is essential for the continued, safe operations
of DTC vehicles. DTC seeks a waiver for the switch because there are no
known domestic manufacturers of the switch. DTC previously sought and
received a Buy America waiver from FTA for two replacement switches
from Delta Railroad Construction, Inc. (Delta), on April 19, 2016 (81
FR 23077).
On January 19, 2023, DTC issued a request for proposals (RFP) (No.
1-19-2023, for DTC Sub-Package 7), which includes the special track
switch described above, and received two responses. Both bidders
certified that the switches they could provide would not comply with
the FTA Buy America requirements. Following the RFP, DTC submitted a
nonavailability waiver request to FTA for the noncompliant switch
components. 49 U.S.C. 5323(j)(2) and 49 CFR 661.7(c)(2).
The product that requires a waiver is one pair of EN60E1A1 switch
point rails and all appurtenances associated with its installation;
four transition head machined rails for connection to frog and turnout
rails; and one set of switch point rods consisting of two drive rods
and two detector rods. FTA estimates the total cost of goods subject to
this proposed waiver is less than $300,000.
Proposed Waiver
FTA proposes waiving the Buy America requirement for the special
trackwork switches DTC seeks to procure under Sub-Package 7. The
proposed waiver would apply only to the switch described above that is
procured after a notice of final waiver is published. The waiver would
not apply to any other products or any other projects besides Sub-
Package 7. The proposed waiver would be effective from the effective
date of the final waiver through the period of performance and closeout
of FTA's financial assistance for the project, which is estimated to be
March 30, 2030.
Request for Comment
This notice satisfies FTA's requirement to publish any proposed Buy
America waiver in the Federal Register and provide the public with a
reasonable period of time for notice and comment. 49 U.S.C. 5323(j)(3)
and section 70937(b)(1) of the Build America, Buy America Act (Pub. L.
117-58).
FTA seeks public and industry comment from all interested parties.
In particular, FTA seeks comment regarding whether the waiver should be
approved, and, if so, whether it should be modified from FTA's proposal
and
[[Page 73186]]
why. Relevant information and comments will help FTA understand
completely the facts surrounding the waiver requests and FTA's
proposal.
In accordance with Section 70916(c) of the Build America, Buy
America Act, FTA will also consult with the Hollings Manufacturing
Extension Partnership before approving the proposed waiver.
Veronica Vanterpool,
Acting Administrator.
[FR Doc. 2024-20257 Filed 9-6-24; 8:45 am]
BILLING CODE 4910-57-P | usgpo | 2024-10-08T13:26:25.850678 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20257.htm"
} |
FR | FR-2024-09-09/2024-20195 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73186-73188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20195]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2024-0053]
Damon Motors Inc.; Receipt of Petition for Temporary Exemption
From a Rear Wheel Brake Requirement of FMVSS No. 123
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Notice of receipt of a petition for a temporary exemption;
request for comment.
-----------------------------------------------------------------------
SUMMARY: Damon Motors Inc. (Damon) has petitioned the agency for a
temporary exemption from a rear wheel brake control requirement of
Federal Motor Vehicle Safety Standard (FMVSS) No. 123, Motorcycle
controls and displays. The petitioner seeks to install the rear brake
control on the left handlebar instead of the right foot control
required by FMVSS No. 123. NHTSA is publishing this document in
accordance with statutory and administrative provisions and requests
comment on the merits of Damon's exemption petition. NHTSA has made no
judgment at this time on the merits of the petition.
DATES: You should submit your comments not later than October 9, 2024.
FOR FURTHER INFORMATION CONTACT: Natasha Reed, Office of the Chief
Counsel, NCC-200, National Highway Traffic Safety Administration, 1200
New Jersey Avenue SE, Washington, DC 20590. Telephone: (202) 366-2992;
Fax: (202) 366-3820.
ADDRESSES: We invite you to submit comments on the application
described above. You may submit comments identified by docket number in
the heading of this notice by any of the following methods:
Fax: 1 (202) 493-2251.
Mail: U.S. Department of Transportation, Docket
Operations, M-30, Room W12-140, 1200 New Jersey Avenue SE, Washington,
DC 20590.
Hand Delivery: 1200 New Jersey Avenue SE, West Building
Ground Floor, Room W12-140, Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Instructions: All submissions must include the agency name and
docket number. Note that all comments received will be posted without
change to http://www.regulations.gov, including any personal
information provided. Please see the Privacy Act discussion below. We
will consider all comments received before the close of business on the
comment closing date indicated above. To the extent possible, we will
also consider comments filed after the closing date.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. Telephone: (202) 366-9826.
Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking process. DOT
posts these comments, without edit, to www.regulations.gov, as
described in the system of records notice, DOT/ALL-14 FDMS, accessible
through www.dot.gov/privacy. To facilitate comment tracking and
response, we encourage commenters to provide their name, or the name of
their organization; however, submission of names is completely
optional. Whether or not commenters identify themselves, all timely
comments will be fully considered. If you wish to provide comments
containing proprietary or confidential information, please contact the
agency for alternate submission instructions.
Confidential Business Information: If you wish to submit any
information under a claim of confidentiality, submit these materials to
NHTSA's Office of the Chief Counsel in accordance with 49 CFR part 512.
All requests for confidential treatment must be submitted directly to
the Office of the Chief Counsel. NHTSA is currently treating electronic
submission as an acceptable method for submitting confidential business
information to the agency under part 512. If you claim that any of the
information or documents provided in your response constitutes
confidential business information within the meaning of 5 U.S.C.
552(b)(4), or are protected from disclosure pursuant to 18 U.S.C. 1905,
you may submit your request via email to Dan Rabinovitz in the Office
of the Chief Counsel at [email protected]. Do not send a
hardcopy of a request for confidential treatment to NHTSA's
headquarters.
SUPPLEMENTARY INFORMATION:
I. The Motorcycle Rear Brake Control Requirement in FMVSS No. 123 and
Its Purpose
FMVSS No. 123, Motorcycle Controls and Displays, specifies
requirements for the location, operation, identification, and
illumination of motorcycle controls and displays. The purpose of FMVSS
No. 123 is to minimize crashes caused by operator error in responding
to the motoring environment by standardizing certain motorcycle
controls and displays. Among other requirements, FMVSS No. 123 S5.2.1
(table 1) requires the control for a motorcycle's rear brakes to be
located on the right side of the motorcycle and to be operable by the
rider's right foot.
In 2005, NHTSA issued a final rule amending FMVSS No. 123 to
require scooter-type motorcycles with automatic transmissions (i.e.,
scooters without a clutch lever) to have a left-hand rear brake
control.\1\ NHTSA chose not to allow the option of placing the rear
brake control on either the left handlebar or right foot pedal,
explaining it had concerns that permitting manufacturers to choose
between two different arrangements could result in a loss of
standardization, as similar or even identical clutchless motorcycles
could have different rear brake controls. Further, NHTSA stated that
while some commenters asserted such an outcome would not have any
safety consequences, without probative data, the agency believed the
goal of standardization was better served via FMVSS No. 123
specifically requiring one brake control location. Thus, the final rule
made the left-hand rear brake control a requirement, not an option, on
scooter-type motorcycles with automatic transmissions (i.e., without a
clutch lever). The final rule continued to require non-scooter
motorcycles with combined brake systems to have their single-point
control located at the right foot, the required location for the rear
brake control. For supplemental rear brake controls, the final rule
continued
[[Page 73187]]
to require all non-scooter motorcycles to have a right foot pedal
control for rear brakes, with supplemental rear brake control located
on the left handlebar if no clutch lever is present.
---------------------------------------------------------------------------
\1\ 70 FR 51286.
---------------------------------------------------------------------------
The subject of Damon's petition is this motorcycle rear brake
control. Per the requirements of table 1 of FMVSS No. 123, as a
motorcycle, rather than a motor-driven cycle or scooter, Damon's
HyperSport must have rear wheel brakes located on the vehicle's right
foot control. However, Damon explains in its petition that the rear
brake control and advanced safety feature design aspects of its
HyperSport motorcycle (including all variants) preclude the vehicle
from meeting the requirement for a foot-operated control. Damon
indicates that the placement of the rear brake control solely on the
left handlebar will provide at least an equivalent level of safety as
that required by FMVSS No. 123, pointing to the findings of a motor
scooter study and European regulations allowing the placement of the
rear brake control on the left handlebar for motor scooters. Damon
further states that the absence of a rear brake control at the right
foot location does not significantly reduce the motorcycle's level of
safety, and that added safety features, including an advanced warning
and anti-lock braking system (ABS), actually improve the overall safety
of the motorcycle. Damon contends that granting its petition will
benefit the public interest by allowing it to introduce for
demonstration, development, and field evaluation a new zero emission
vehicle with advanced safety features aimed at improving the overall
level of safety within the motorcycling industry.
II. Statutory Authority for Temporary Exemptions
The National Traffic and Motor Vehicle Safety Act (Safety Act),
codified at 49 U.S.C. chapter 301, provides the Secretary of
Transportation authority to exempt, on a temporary basis and under
specified circumstances, motor vehicles from a motor vehicle safety
standard or bumper standard. This authority is set forth at 49 U.S.C.
30113. The Secretary has delegated the authority for implementing this
section to NHTSA.
The Act authorizes the Secretary to grant a temporary exemption to
a vehicle manufacturer under certain conditions. The first relevant
condition for this petition request requires a finding that the
exemption would make easier the development or field evaluation of a
new motor vehicle safety feature providing a safety level at least
equal to the safety level of the standard. The second relevant
condition for this petition request requires a finding that the
exemption would make the development or field evaluation of a low-
emission motor vehicle easier and would not unreasonably lower the
safety level of the vehicle.\2\
---------------------------------------------------------------------------
\2\ 49 U.S.C. 30113(b)(3)(B).
---------------------------------------------------------------------------
NHTSA established 49 CFR part 555, Temporary Exemption from Motor
Vehicle Safety and Bumper Standards, to implement the statutory
provisions concerning temporary exemptions. The requirements in 49 CFR
555.5 state that the petitioner must set forth the basis of the
petition by providing the information required under 49 CFR 555.6, and
the reasons why the exemption would be in the public interest and
consistent with the objectives of the Safety Act.
A petition on the basis that the exemption would make easier the
development or field evaluation of a new motor vehicle safety or impact
protection features must include the information specified in 49 CFR
555.6(b). The main requirements of that section include: (1) a
description of the safety or impact protection features along with
research, development, and testing documentation establishing the
innovative nature of such features; (2) an analysis establishing the
level of safety or impact protection of the feature is equivalent to or
exceeds the level of safety or impact protection established in the
standard from which exemption is sought; (3) substantiation that a
temporary exemption would facilitate the development or field
evaluation of the vehicle; and (4) a statement of whether the
manufacturer intends to conform to the standard at the end of the
exemption period, apply for a further exemption, or petition for
rulemaking to amend the standard to incorporate the safety or impact
protection features.
A petition on the basis that the exemption would make easier the
development or field evaluation of a low-emission motor vehicle must
include the information specified in 49 CFR 555.6(c). The main
requirements of that section include: (1) substantiation that the
vehicle is a low-emission vehicle; (2) documentation establishing that
a temporary exemption would not unreasonably degrade the safety of a
vehicle; (3) substantiation that a temporary exemption would facilitate
the development or field evaluation of the vehicle; and (4) a statement
of whether the petitioner intends to conform to the standard at the end
of the exemption period.
III. Overview of Petition
In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR
part 555, Damon submitted a petition asking the agency for a temporary
exemption from the motorcycle rear brake control requirement in FMVSS
No. 123 S5.2.1 (table 1). Damon states the requested two-year exemption
will allow it to introduce for demonstration, development, and field
evaluation the ``Hypersport,'' a multi variant zero-emission motorcycle
equipped with advanced safety features aimed at improving the overall
level of safety within the motorcycle industry. Damon notes all
HyperSport variants are designed to utilize the left handlebar position
to control the rear brake, which prevent it from meeting the motorcycle
rear brake location requirement in S5.2.1 (table 1) of FMVSS No. 123,
which, as described above, requires motorcycle rear wheel brake
controls to be located at the rider's right foot.
Damon requests the exemption for 2 years, stating it will not
produce more than 2,500 exempted motorcycles within any 12-month period
during the exemption. Damon explains it intends to use data gathered
through the grant of this petition to submit a petition for rulemaking
to reduce the complexity of the regulation at issue and allow
manufacturers the ability to locate rear wheel brake controls on either
the right foot or left handlebar.
Damon seeks exemption under two alternative bases. The first basis
is that an exemption would make the development or field evaluation of
a new motor vehicle safety feature easier while providing a safety
level at least equal to the safety level of the standard.\3\ In support
of this basis Damon states its design will incorporate several advanced
safety features normally only found in the automotive industry to
increase rider situational awareness, provide warnings of potential
dangers around motorcyclists, and maximize the available rider response
time. Damon explains these features include an advanced warning system,
anti-lock braking (to reduce the chance of an accident caused by the
user's application of excessive braking force), and an adjustable
ergonomics system.
---------------------------------------------------------------------------
\3\ 49 U.S.C. 30113(b)(3)(B)(ii).
---------------------------------------------------------------------------
Damon states that many of these features are already commonplace in
the automotive sector and studies have shown they save lives. However,
Damon relays that integrating these systems into motorcycles presents
new challenges because the dynamics of the vehicle are
[[Page 73188]]
distinct. For example, Damon states that unlike the fixed ergonomics of
conventional motorcycles, its adjustable ergonomics system (SHIFT)
provides the user more freedom and control for different riding styles.
Damon explains that using the left handlebar rear brake position to
accommodate and implement this adjustable ergonomics system will be
less complex and avoid the challenges of having the foot brake also
change position. Further, Damon states that locating SHIFT on the
handlebar brake position will allow it more design freedom to optimize
bodywork for the vehicle to reduce drag and increase the overall
efficiency of the HyperSport.
The second basis is that an exemption would make the development or
field evaluation of a low-emission vehicle easier without unreasonably
lowering the safety of that vehicle.\4\ In support of this basis, Damon
states that its HyperSport qualifies as a low-emission vehicle because
no emissions are produced during operation. Damon explains that the
HyperSport has an all-electric powertrain.
---------------------------------------------------------------------------
\4\ 49 U.S.C. 30113(b)(3)(B)(iii).
---------------------------------------------------------------------------
To demonstrate that the HyperSport meets the minimum safety levels
required for an exemption under either 49 CFR 555.6(b) \5\ or 49 CFR
555.6(c),\6\ Damon states that the absence of a rear brake control at
the right foot location does not significantly reduce the level of
safety afforded to the user, and that the HyperSport's added safety
features, including an advanced warning system and ABS, improve the
overall level of safety of the motorcycle. Damon states the
HyperSport's brake system is designed to surpass the performance
requirements of FMVSS No. 122, which measures braking performance.
Further, Damon points out that from 1999-2005 NHTSA granted exemptions
for motor scooters with rear brake controls on the left handlebar, and
that a 2000 Carter Engineering study submitted with a similar petition
for exemption found no response-time detriment in moving the rear brake
control from the right foot location to the left handlebar. Damon
states the study found operators responded 21 percent faster to the
braking stimulus with handlebar-mounted rear brake controls.
---------------------------------------------------------------------------
\5\ The exemption would make easier the development or field
evaluation of a new motor vehicle safety or impact protection
features providing a safety or impact protection level at least
equal to that of the standard.
\6\ The exemption would make the development or field evaluation
of a low-emission vehicle easier and would not unreasonably lower
the safety or impact protection level of that vehicle.
---------------------------------------------------------------------------
Damon contends that based on this report there is likely no
difference in the physical response time for operators of motorcycles
compared to operators of scooters. Damon also points out that motor
scooter manufacturers were afforded the opportunity to bring their
vehicles to market in support of gathering future data, and that the
granting of this petition would allow Damon's HyperSport to do the
same. Finally, Damon notes that although FMVSS No. 123 reserves the
left handlebar for the clutch lever or as a supplemental position for
the rear brake on motorcycles with an automatic transmission, other
markets like Europe and Canada allow manufacturers to use the left
handlebar for the rear brake control, and that this exemption would
promote international harmonization.
IV. Comment Period
The agency seeks comment from the public on the merits of Damon's
application for a temporary exemption from the motorcycle rear brake
control requirements in paragraph S5.2.1 (table 1) of FMVSS No. 123.
The agency has not made any judgment on the merits of the application
and is placing a non-confidential copy of the petition in the docket.
We are providing a 30-day comment period. After considering public
comments and other available information, we will publish a notice of
final action on the application in the Federal Register.
Authority: 49 U.S.C. 30113; delegation of authority at 49 CFR 1.95
and 501.5.
Sophie Shulman,
Deputy Administrator.
[FR Doc. 2024-20195 Filed 9-6-24; 8:45 am]
BILLING CODE 4910-59-P | usgpo | 2024-10-08T13:26:25.921078 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20195.htm"
} |
FR | FR-2024-09-09/2024-20260 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73188-73190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20260]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
[Docket ID Number: DOT-OST-2010-0140]
Notice of Submission of Proposed Information Collection to OMB
AGENCY: Office of the Secretary, Department of Transportation.
ACTION: Notice and request for comments.
-----------------------------------------------------------------------
SUMMARY: In accordance with the Paperwork Reduction Act of 1995 (PRA),
as amended, this notice announces the Department of Transportation's
(Department or DOT) intention to reinstate Office of Management and
Budget (OMB) Control Number 2105-0561 for the collection and posting of
certain aviation consumer protection-related information from U.S.
carriers and foreign carriers. The subject information collections
relate to requirements in the Code of Federal Regulations (CFR) for the
development and auditing of carrier customer service plans, reporting
of tarmac delays, display of on-time performance, and the posting of
various consumer protection documents on carrier websites. The Control
Number expired on August 31, 2024.
DATES: Comments on this notice must be received by October 9, 2024.
Interested persons are invited to submit comments regarding this
proposal.
ADDRESSES: Written comments and recommendations for the proposed
information collection review (ICR) should be sent within 30 days of
publication of this notice to www.reginfo.gov/public/do/PRAMain. Find
this particular ICR by selecting ``Currently under 30-day Review--Open
for Public Comments'' or by using the search function.
FOR FURTHER INFORMATION CONTACT: Alexa Strong or Hannah Cohen, Office
of the Secretary, Office of Aviation Consumer Protection (C-70), U.S.
Department of Transportation, 1200 New Jersey Ave. SE, Washington, DC
20590, at [email protected] or [email protected] (Email).
Arrangements to receive this document in an alternative format may be
made by contacting the above-named individuals.
SUPPLEMENTARY INFORMATION: Title: Submission of Miscellaneous
Information Collection Systems as Required by the Department's Rules to
Enhance Airline Passenger Protections.
OMB Control Number: 2105-0561.
On December 30, 2009 and April 25, 2011, the Department issued two
rules to enhance airline passenger protections that, among other
things, required U.S. and foreign carriers to adopt and audit a
customer service plan, retain information regarding tarmac delays,
submit data regarding tarmac delays, and post tarmac delay plans,
customer service plans, and contracts of carriage on their websites.
The 2009 rule also required U.S. carriers that file on-time performance
reports under 14 CFR part 234 (``reporting carriers'') to display the
on-time performance of domestic flights on their websites. A 2016 rule
then expanded the definition of U.S. carriers considered reporting
carriers.
On May 3, 2021, the Department issued a rule amending its tarmac
delay requirements. Among other things, the rule narrowed the tarmac
delay data reporting requirements in 14 CFR part 244 to those delays
considered
[[Page 73189]]
``excessive tarmac delays'' (i.e., those tarmac delays exceeding 3
hours on domestic flights and 4 hours on international flights). The
amended rule also required carriers to file a narrative report
regarding such tarmac delays and eliminated the requirement to retain
the delay information for two years.
Currently, the Department's Office of Aviation Consumer Protection
(OACP) is implementing development of the Aviation Complaint,
Enforcement, and Reporting System (ACERS), a database that it intends
to require carriers to use when submitting tarmac delay information as
required under 14 CFR part 259.\1\ After implementation, ACERS will
help streamline the process by which OACP receives, reviews, and
analyzes the narrative reports submitted by carriers.
---------------------------------------------------------------------------
\1\ OMB control number 2105-0568, which expires August 31, 2027,
addresses the information collection relating to carriers uploading
documents to ACERs.
---------------------------------------------------------------------------
The PRA and its implementing regulations, 5 CFR part 1320, require
Federal agencies to issue two notices, a 60-day notice followed by a
30-day notice, seeking public comment on information collection
activities before OMB may approve paperwork packages. On May 21, 2024,
the Department published a 60-day notice in the Federal Register
soliciting comment on the information collections for which it is
seeking OMB approval. See 89 FR 44758 (May 21, 2024). The Department
received no comments after issuing this notice. Accordingly, the
Department announces that these information collection activities have
been re-evaluated and certified under 5 CFR 1320.5(a) and forwarded to
OMB for review and approval pursuant to 5 CFR 1320.12(c).
A Federal agency generally cannot conduct or sponsor a collection
of information, and the public is generally not required to respond to
an information collection, unless it is approved by OMB under the PRA
and displays a currently valid OMB Control Number. In addition,
notwithstanding any other provisions of law, no person shall generally
be subject to penalty for failing to comply with a collection of
information if the collection of information does not display a valid
OMB Control Number. See 5 CFR 1320.5(a) and 1320.6. Before OMB decides
whether to approve these proposed collections of information, it must
provide 30 days for public comment. 44 U.S.C. 3507(b); 5 CFR
1320.12(d). Federal law requires OMB to approve or disapprove paperwork
packages between 30 and 60 days after the 30-day notice is published.
44 U.S.C. 3507(b)-(c); 5 CFR 1320.12(d); see also 60 FR 44978, 44983
(Aug. 29, 1995). The 30-day notice informs the regulated community to
file relevant comments to OMB and affords the agency adequate time to
digest public comments before it renders a decision. 60 FR 44983 (Aug.
29, 1995). Therefore, respondents should submit their respective
comments to OMB within 30 days of publication to best ensure their full
consideration. 5 CFR 1320.12(c); see also 60 FR 44983 (Aug. 29, 1995).
This notice addresses five information collection requirements set
forth in the Department's airline passenger protection rules: (1)
posting of tarmac delay plans, customer service plans, and contracts of
carriage on carrier websites, (2) submission of a narrative report
regarding tarmac delays that last over three hours for domestic flights
and four hours for international flights, (3) adoption and audit of
customer service plans and retention of results, (4) display of on-time
performance data on carrier websites, and (5) submission of a data
report for tarmac delays that last over three hours for domestic
flights and four hours for international flights. It seeks
reinstatement of the OMB control number with respect to all information
collections set forth in this notice. For each of these information
collections, the title, a description of the respondents, and an
estimate of the annual recordkeeping and periodic reporting burdens are
set forth below:
1. Requirement to post tarmac delay plans, customer service plans,
and contracts of carriage on a carrier's website. (14 CFR 259.2 and
259.6)
Title: Posting of Tarmac Delay Plan, Customer Service Plan, and
Contract of Carriage on website.
Respondents: U.S. carriers that operate scheduled passenger or
public charter service and foreign air carriers operating scheduled
passenger or public charter service to or from the United States, using
any aircraft with a designed seating capacity of 30 or more seats.
Applicable to U.S. carriers that have a website and foreign carriers
that have a website marketed toward U.S. consumers.
Estimated Number of Respondents: 44 U.S. air carriers and 112
foreign air carriers.
Estimated Total Burden on Respondents: 143 hours (8,580 minutes,
average of 55 minutes per carrier to post plans and contracts of
carriage on website). The burden calculation accounts for additional
time carriers may spend updating the contents of their customer service
plans to comply with recent amendments to 14 CFR 259.5, which the
Department anticipates will be a one-time update for carriers.\2\ See
89 FR 32760 (April 26, 2024) (required carrier customer service plans
(1) to disclose that consumers are entitled to a refund if this is the
case when offering travel credits, vouchers, or other compensation in
lieu of refunds, and to disclose any material restrictions, conditions,
or limitations on travel credits, vouchers, or other compensation
offered, regardless of whether consumers are entitled to a refund and
(2) to include a statement regarding compliance with the requirements
of part 262 regarding vouchers for consumers in circumstances relating
to serious communicable diseases).
---------------------------------------------------------------------------
\2\ The burden hours for this information collection were
previously 15 minutes per carrier. The burden hours have been
increased to 55 minutes per carrier to account for additional time
carriers may need to update their customer service plans prior to
posting them on their websites.
---------------------------------------------------------------------------
Frequency: One time per respondent.
2. Requirement to file a narrative report with OACP of each flight
that experiences a tarmac delay of more than three hours (domestic
flights) and more than four hours (international flights) (14 CFR
259.4(g)).
Title: Reporting of Tarmac Delays in a Narrative Format That
Complies with 49 U.S.C. 42301(h).
Respondents: U.S. Carriers that operate scheduled passenger service
or public charter service using any aircraft with 30 or more seats, and
foreign air carriers that operate scheduled passenger or public charter
service to and from the United States using any aircraft with 30 or
more seats.
Estimated Number of Respondents: 44 U.S. air carriers and 112
foreign air carriers.
Estimated Annual Burden on Respondents: 2 hours per report for U.S.
carriers and 4 hours per report for foreign carriers. The expected
burden per U.S. carrier is between 0 and 147 reports per year, and the
expected burden per foreign carrier is between 0 and 2 reports per year
(based on the highest annual number of tarmac delays experienced by a
single U.S. and foreign carrier from 2022 and 2023), or 0.0 to 294.0
hours of burden per U.S. carrier and 0.0 to 8.0 hours of burden per
foreign carrier.
Estimated Total Annual Burden: Based on the average number of
tarmac delay reports filed with OACP by each type of carrier from 2022
through 2023, 358 reports for U.S. carriers and 10 reports for foreign
carriers, or a total of 756 hours (358 reports multiplied by 2 hours
per report for U.S. carriers, and 10
[[Page 73190]]
reports multiplied by 4 hours for foreign carriers).
Frequency: One report per respondent for each tarmac delay.
3. Requirement that certain U.S. and foreign air carriers adopt a
Customer Service Plan and retain for two years the results of its
annual self-audit of its compliance with its Customer Service Plan. (14
CFR 259.2 and 259.5)
Title: Adopting a Customer Service Plan and Retaining Self-audit of
Customer Service Plan.
Respondents: U.S. carriers that operate scheduled passenger service
using any aircraft with a designed seating capacity of 30 or more
seats, and foreign air carriers that operate scheduled passenger
service to and from the United States using any aircraft with a
designed seating capacity of 30 or more seats.
Number of Respondents: 44 U.S. air carriers and 112 foreign air
carriers.
Estimated Annual Burden on Respondents: 15 minutes per year for
each respondent. The estimate was calculated by multiplying the
estimated time for carriers to maintain an updated Customer Service
Plan and to retain a copy of the carrier's self-audit of its compliance
with its Customer Service Plan by the number of audits per carrier in a
given year (1). The initial costs of adopting a Customer Service Plan
are not included in this estimate as most covered carriers initially
adopted such plans when the requirement was promulgated in 2009 (for
U.S. carriers) and 2011 (for foreign carriers).
Estimated Total Annual Burden: A maximum of 39 hours (2,340
minutes) for all respondents. The estimate was calculated by
multiplying the time in a given year for each carrier to maintain an
updated Customer Service Plan and to retain a copy of its self-audit of
its compliance with its Customer Service Plan (15 minutes) by the total
number of covered carriers (156 carriers).
Frequency: One information set to maintain and retain per year for
each respondent.
4. Requirement that each large U.S. carrier display on its website,
at a point before the consumer selects a flight for purchase, the
following information for each listed flight regarding its on-time
performance during the last reported month: The percentage of arrivals
that were on time (within 15 minutes of scheduled arrival time), the
percentage of arrivals that were more than 30 minutes late (with
special highlighting if the flight was more than 30 minutes late more
than 50 percent of the time), and the percentage of flight
cancellations if the flight is cancelled more than 5% of the time. In
addition, the requirement that a marketing/reporting carrier display
delay data for its non-reporting codeshare carrier(s). (14 CFR 234.11)
Title: Displaying On-time performance Information on Carrier
website.
Respondents: U.S. carriers that operate scheduled passenger service
that account for at least 0.5 percent of domestic scheduled passenger
revenue and that market flights directly to consumers via a website.
Number of Respondents: 15 carriers.
Estimated Annual Burden on Respondents: 2 hours per month (24 hours
annually) to cover both updates of a carrier's own delay data and
updates of code-share delay data.
Estimated Total Annual Burden: No more than 360 hours (21,600
minutes) a year for all respondents. The estimate was calculated by
multiplying the total number of hours per carrier per year for
management of data links (24) by the number of covered carriers (15).
Frequency: Updating information for each flight listed on website
12 times per year (1 time per month) for each respondent (for both a
carrier's own delay data and code-share delay data).
5. Requirement that carriers report certain tarmac delay data to
BTS for each tarmac delay exceeding 3 Hours (for domestic flights) and
exceeding 4 Hours (for international flights) (14 CFR 244.3)
Title: Reporting Tarmac Delay Data to BTS for Tarmac Delays
Exceeding 3 Hours (for Domestic Flights) and 4 Hours (for International
Flights).
Respondents: U.S. carriers that operate scheduled passenger service
or public charter service using any aircraft with 30 or more seats, and
foreign air carriers that operate scheduled passenger or public charter
service to and from the United States using any aircraft with 30 or
more seats.
Number of Respondents: 44 U.S. air carriers and 112 foreign air
carriers.
Estimated Annual Burden on Respondents: 30 minutes per report
filed. The expected burden per U.S. carrier is between 0 and 147
reports per year, and the expected burden per foreign carrier is
between 0 and 2 reports per year (based on the highest and lowest
number of reports submitted by each individual U.S. and foreign carrier
from 2022 and 2023), or 0.0 to 73.5 hours of burden per U.S. carrier
and 0.0 to 1.0 hours of burden per foreign carrier.
Estimated Total Annual Burden: Based on an average number of tarmac
delays reported to BTS for 2022 and 2023, the estimated annual burden
is 368 reports for U.S. carriers and foreign carriers, or a total of
184 hours (368 reports multiplied by 30 minutes per report).
Frequency: One report per respondent for each tarmac delay.
We invite comments on (a) whether the collection of information is
necessary for the proper performance of the functions of DOT, including
whether the information will have practical utility; (b) the accuracy
of DOT's estimate of the burden of the proposed information collection;
(c) ways to enhance the quality, utility and clarity of the information
to be collected; and (d) ways to minimize the burden of the collection
of information on respondents, including the use of automated
collection techniques or other forms of information technology. 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 on the docket.
Authority: The Paperwork Reduction Act of 1995; 44 U.S.C. chapter
35, as amended; and 49 CFR 1.26, 1.27, 1.48 and 1.49; DOT Order
1351.29.
Issued in Washington, DC.
Livaughn Chapman Jr,
Deputy Assistant General Counsel, Office of Aviation Consumer
Protection.
[FR Doc. 2024-20260 Filed 9-6-24; 8:45 am]
BILLING CODE 4910-9X-P | usgpo | 2024-10-08T13:26:25.983731 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20260.htm"
} |
FR | FR-2024-09-09/2024-20265 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73190-73191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20265]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Internal Revenue Service
Proposed Extension of Information Collection Request Submitted
for Public Comment; Comment Request on Burden Related to the Plan-
Specific Substitute Mortality Tables for Determining Present Value
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice and request for comments.
-----------------------------------------------------------------------
SUMMARY: The Internal Revenue Service, as part of its continuing effort
to reduce paperwork and respondent burden, invites the public and other
Federal agencies to take this opportunity to comment on proposed and/or
continuing information collections, as required by the Paperwork
Reduction Act of 1995. Currently, the IRS is soliciting comments
concerning the burden related to the Plan-Specific Substitute Mortality
Tables for Determining Present Value.
DATES: Written comments should be received on or before November 8,
2024 to be assured of consideration.
[[Page 73191]]
ADDRESSES: Direct all written comments to Andr[eacute]s Garcia,
Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW,
Washington, DC 20224, or by email to [email protected]. Please
include, ``OMB Number: 1545-2073--Public Comment Request Notice'' in
the Subject line.
FOR FURTHER INFORMATION CONTACT: Requests for additional information or
copies of the form and instructions should be directed to Ronald J.
Durbala, at (202) 317-5746, at Internal Revenue Service, Room 6526,
1111 Constitution Avenue NW, Washington, DC 20224, or through the
internet at [email protected].
SUPPLEMENTARY INFORMATION:
Title: Plan-Specific Substitute Mortality Tables for Determining
Present Value.
OMB Number: 1545-2073.
Document Number: TD 10005, RP 2024-32.
Abstract: Section 412 of the Internal Revenue Code (Code)
prescribes minimum funding requirements for defined benefit pension
plans. Section 430 specifies the minimum funding requirements that
apply generally to defined benefit plans that are single-employer plans
(that is, not multiemployer plans). Revenue Procedure 2024-32 updates
the procedures set forth in Rev. Proc. 2017-55 to reflect the
amendments to Sec. 1.430(h)(3)-2 made by TD 10005.
Current Actions: There are no changes to the burden previously
approved by OMB. This request is to extend the current approval for
another 3 years.
Type of Review: Extension of a currently approved collection.
Affected Public: Individuals or households and Business or other
for-profit.
Estimated Number of Respondents: 15.
Estimated Time per Respondent: 267 min.
Estimated Total Annual Burden Hours: 4,000.
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.
Desired Focus of Comments: The Internal Revenue Service (IRS) is
particularly interested in comments that:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility.
Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used.
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of the collection of information on
those who are to respond, including using appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., by permitting electronic
submissions of responses.
Comments submitted in response to this notice will be summarized
and/or included in the ICR for OMB approval of the extension of the
information collection; they will also become a matter of public
record.
Approved: September 4, 2024.
Ronald J. Durbala,
IRS Tax Analyst.
[FR Doc. 2024-20265 Filed 9-6-24; 8:45 am]
BILLING CODE 4830-01-P | usgpo | 2024-10-08T13:26:26.037397 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20265.htm"
} |
FR | FR-2024-09-09/2024-20212 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73191-73192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20212]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Proposed Collection; Comment Request
AGENCY: Departmental Offices; Department of the Treasury.
SUMMARY: The Department of the Treasury, as part of its continuing
effort to reduce paperwork burdens, invites the general public and
other Federal agencies to comment on an information collection that is
due for extension approval by the Office of Management and Budget. The
Office of International Affairs of the Department of the Treasury is
soliciting comments concerning extension without change of the
following form: Treasury International Capital Form D, ``Report of
Holdings of, and Transactions in, Financial Derivatives Contracts with
Foreign Residents''. The report is mandatory.
DATES: Written comments should be received on or before November 8,
2024 to be assured of consideration.
ADDRESSES: Direct all written comments to Dwight Wolkow, International
Portfolio Investment Data Systems, Department of the Treasury, Room
1050, 1500 Pennsylvania Avenue NW, Washington, DC 20220. In view of
possible delays in mail delivery, please also notify Mr. Wolkow by
email ([email protected]), or by telephone (202-622-1276).
FOR FURTHER INFORMATION CONTACT: Copies of the proposed form and
instructions are available on the Treasury's TIC Forms web page, TIC D
Form and Instructions [verbar] U.S. Department of the Treasury.
Requests for additional information should be directed to Mr. Wolkow
([email protected]) or (202-622-1276).
SUPPLEMENTARY INFORMATION:
Title: Treasury International Capital Form D, ``Report of Holdings
of, and Transactions in, Financial Derivatives Contracts with Foreign
Residents.''
OMB Control Number: 1505-0199.
Abstract: Form D is part of the Treasury International Capital
(TIC) reporting system, which is required by law (22 U.S.C. 286f; 22
U.S.C. 3103; E.O. 10033; 31 CFR part 128), and is designed to collect
timely information on international portfolio capital movements. Form D
is a quarterly report on holdings and transactions in derivatives
contracts undertaken between foreign resident counterparties and major
U.S.-resident participants in derivatives markets. This information is
used by the U.S. Government in the formulation of international
financial and monetary policies and for the preparation of the U.S.
balance of payments accounts and the U.S. international investment
position.
Current Actions: No changes in the form or instructions are being
proposed at this time. Some clarifications and format changes may be
made to improve the instructions.
Type of Review: Extension of a currently approved collection.
Affected Public: Business or other for-profit organizations.
Form D (1505-0199).
Estimated Number of Respondents: 29.
Estimated Average Time per Respondent: Average 30 hours per
respondent per filing.
Estimated Total Annual Burden Hours: 3,480 hours, based on 4
reporting periods per year.
Request for Comments: Comments submitted in response to this notice
will be summarized and/or included in the request for Office of
Management and Budget approval. All comments will become a matter of
public record. The
[[Page 73192]]
public is invited to submit written comments concerning: (a) whether
Form D is necessary for the proper performance of the functions of the
Office, including whether the information will have practical uses; (b)
the accuracy of the above estimate of the burdens; (c) ways to enhance
the quality, usefulness and clarity of the information to be collected;
(d) ways to minimize the reporting and/or record keeping burdens on
respondents, including the use of information technologies to automate
the collection of the data; and (e) estimates of capital or start-up
costs of operation, maintenance and purchase of services to provide
information.
Dwight Wolkow,
Administrator, International Portfolio Investment Data Reporting
Systems.
[FR Doc. 2024-20212 Filed 9-6-24; 8:45 am]
BILLING CODE 4810-AK-P | usgpo | 2024-10-08T13:26:26.075400 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20212.htm"
} |
FR | FR-2024-09-09/2024-20243 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Page 73192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20243]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
[OMB Control No. 2900-0503]
Agency Information Collection Activity: Veterans Mortgage Life
Insurance-Change of Address Statement
AGENCY: Veterans Benefits Administration, Department of Veterans
Affairs.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Veterans Benefits Administration (VBA), Department of Veterans
Affairs (VA), is announcing an opportunity for public comment on the
proposed collection of certain information by the agency. Under the
Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to
publish notice in the Federal Register concerning each proposed
collection of information, including each proposed extension of a
currently approved collection, and allow 60 days for public comment in
response to the notice.
DATES: Comments must be received on or before November 8, 2024.
ADDRESSES: Comments must be submitted through www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Program-Specific information: Nancy Kessinger, 202-632-8924,
[email protected].
VA PRA information: Maribel Aponte, 202-461-8900,
[email protected].
SUPPLEMENTARY INFORMATION: Under the PRA of 1995, Federal agencies must
obtain approval from the Office of Management and Budget (OMB) for each
collection of information they conduct or sponsor. This request for
comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information VBA invites
comments on: (1) whether the proposed collection of information is
necessary for the proper performance of VBA's functions, including
whether the information will have practical utility; (2) the accuracy
of VBA's estimate of the burden of the proposed collection of
information; (3) ways to enhance the quality, utility, and clarity of
the information to be collected; and (4) ways to minimize the burden of
the collection of information on respondents, including through the use
of automated collection techniques or the use of other forms of
information technology.
Title: Veterans Mortgage Life Insurance Change of Address Statement
(VA Form 29-0563).
OMB Control Number: 2900-0503. https://www.reginfo.gov/public/do/PRASearch (Once at this link, you can enter the OMB Control Number to
find the historical versions of this Information Collection).
Type of Review: Extension of a currently approved collection.
Abstract: The Veterans Mortgage Life Insurance Change of Address
Statement solicits information needed to inquire about a veteran's
continued ownership of the property issued under Veterans Mortgage Life
Insurance when an address change for the veteran is received. The
information obtained is used in determining whether continued Veterans
Mortgage Life Insurance coverage is applicable since the law granting
this insurance provides that coverage terminates if the veteran no
longer owns the property. The information requested is required by law,
38 U.S.C. 2106. This form expired due to high volume of work and
staffing changes.
Affected Public: Individuals and households.
Estimated Annual Burden: 8 hours.
Estimated Average Burden Per Respondent: 5 minutes.
Frequency of Response: On occasion.
Estimated Number of Respondents: 100.
Authority: 44 U.S.C. 3501 et seq.
Maribel Aponte,
VA PRA Clearance Officer, Office of Enterprise and Integration/Data
Governance Analytics, Department of Veterans Affairs.
[FR Doc. 2024-20243 Filed 9-6-24; 8:45 am]
BILLING CODE 8320-01-P | usgpo | 2024-10-08T13:26:26.124819 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20243.htm"
} |
FR | FR-2024-09-09/2024-20208 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73192-73193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20208]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
[OMB Control No. 2900-0154]
Agency Information Collection Activity: Application for VA
Education Benefits
AGENCY: Veterans Benefits Administration, Department of Veterans
Affairs.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Veterans Benefits Administration, Department of Veterans
Affairs (VA), is announcing an opportunity for public comment on the
proposed collection of certain information by the agency. Under the
Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to
publish notice in the Federal Register concerning each proposed
collection of information, including each proposed extension of a
currently approved collection, and allow 60 days for public comment in
response to the notice.
DATES: Comments must be received on or before November 8, 2024.
ADDRESSES: Comments must be submitted through www.regulations.gov
FOR FURTHER INFORMATION CONTACT:
Program-Specific information: Nancy Kessinger, 202-632-8924,
[email protected].
VA PRA information: Maribel Aponte, 202-461-8900,
[email protected].
SUPPLEMENTARY INFORMATION:
Under the PRA of 1995, Federal agencies must obtain approval from
the Office of Management and Budget (OMB) for each collection of
information they conduct or sponsor. This request for comment is being
made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA
invites comments on: (1) whether the proposed collection of information
is necessary for the proper performance of VBA's functions, including
whether the information will have practical utility; (2) the accuracy
of VBA's estimate of the burden of the proposed collection of
information; (3) ways to enhance the quality, utility, and clarity of
the information to be collected; and (4) ways to minimize the burden of
the collection of information on respondents, including through the use
of automated collection techniques or the use of other forms of
information technology.
Title: Application for VA Education Benefits, VA Form 22-1990;
Application for Family Member to use
[[Page 73193]]
Transferred Benefits, VA Form 22-1990E; Application for VA Benefits
under the National Call to Service Program, VA Form 22-1990N.
OMB Control Number: 2900-0154. https://www.reginfo.gov/public/do/PRASearch (Once at this link, you can enter the OMB Control Number to
find the historical versions of this Information Collection).
Type of Review: Revision of a currently approved collection.
Abstract: Applicants complete and submit the Application for
Education Benefits, VA Form 22-1990; National Call to Service (NCS), VA
Form 22-1990N, or the Transfer of Entitlement (TOE), VA Form 22-1990E
to file their claim for VA education benefits, which all have different
eligibility requirements. The information requested on each of these
forms helps VA to determine the applicant's eligibility to education
benefits.
Affected Public: Individuals and Households.
Estimated Annual Burden: 36,458 hours.
Estimated Average Burden per Respondent: 15 minutes.
Frequency of Response: Once.
Estimated Number of Respondents: 145,834.
Authority: 44 U.S.C. 3501 et seq.
Maribel Aponte,
VA PRA Clearance Officer, Office of Enterprise and Integration/Data
Governance Analytics, Department of Veterans Affairs.
[FR Doc. 2024-20208 Filed 9-6-24; 8:45 am]
BILLING CODE 8320-01-P | usgpo | 2024-10-08T13:26:26.136602 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-20208.htm"
} |
FR | FR-2024-09-09/2024-19638 | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73196-73248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-19638]
[[Page 73195]]
Vol. 89
Monday,
No. 174
September 9, 2024
Part II
Pension Benefit Guaranty Corporation
-----------------------------------------------------------------------
Privacy Act of 1974; Systems of Records; Notice
Federal Register / Vol. 89, No. 174 / Monday, September 9, 2024 /
Notices
[[Page 73196]]
-----------------------------------------------------------------------
PENSION BENEFIT GUARANTY CORPORATION
Privacy Act of 1974; Systems of Records
AGENCY: Pension Benefit Guaranty Corporation.
ACTION: Notice of modified systems of records.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Privacy Act of 1974, the Pension Benefit
Guaranty Corporation (PBGC) is proposing numerous amendments to all
system of records notices (SORN). There are amendments affecting
multiple SORNs and amendments to specific SORNs.
DATES: Comments must be received on or before October 9, 2024 to be
assured of consideration. The new systems of records described herein
will become effective October 9, 2024, without further notice, unless
comments result in a contrary determination and a notice is published
to that effect.
ADDRESSES: You may submit written comments to PBGC by any of the
following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the website instructions for submitting comments.
Email: pbgc.gov">reg.comments@pbgc.gov. Refer to SORN in the subject
line.
Mail or Hand Delivery: Regulatory Affairs Division, Office
of the General Counsel, Pension Benefit Guaranty Corporation, 445 12th
Street SW, Washington, DC, 20024-2101.
Commenters are strongly encouraged to submit comments
electronically. Commenters who submit comments on paper by mail should
allow sufficient time for mailed comments to be received before the
close of the comment period.
All submissions must include the agency's name (Pension Benefit
Guaranty Corporation, or PBGC) and reference this notice. Comments
received will be posted without change to PBGC's website, http://www.pbgc.gov, including any personal information provided. Do not
submit comments that include any personally identifiable information or
confidential business information. Copies of comments may also be
obtained by writing to the Disclosure Division, (pbgc.gov">disclosure@pbgc.gov),
Office of the General Counsel, Pension Benefit Guaranty Corporation,
445 12th Street SW, Washington, DC, 20024-2101; or calling 202-229-4040
during normal business hours. If you are deaf or hard of hearing, or
have a speech disability, please dial 7-1-1 to access
telecommunications relay services.
FOR FURTHER INFORMATION CONTACT: Shawn Hartley, Chief Privacy Officer,
Pension Benefit Guaranty Corporation, Office of the General Counsel,
445 12th Street SW, Washington, DC, 20024-2101, 202-229-6321. For
access to any of PBGC's systems of records, write to the Disclosure
Division, (pbgc.gov">disclosure@pbgc.gov), Office of the General Counsel, Pension
Benefit Guaranty Corporation, 445 12th Street SW, Washington, DC,
20024-2101, or by calling 202-229-4040 during normal business hours, or
go to https://www.pbgc.gov/about/policies/pg/privacy-at-pbgc/system-of-records-notices.
SUPPLEMENTARY INFORMATION: PBGC is removing the Prefatory Statement of
General Routine Uses and merging all pertinent General Routine Uses
from the Prefatory Statement of General Routine Uses into their
respective Routine Uses sections of the following: PBGC-1,
Congressional Correspondence; PBGC-2, Disbursements; PBGC-3, Employee
Payroll, Leave and Attendance Records; PBGC-6, Plan Participant and
Beneficiary Data--PBGC; PBGC-8, Employee Relations Files; PBGC-9,
Unclaimed Retirement Funds; PBGC-10, Administrative Appeals File; PBGC-
11, Call Detail Records; PBGC-12, Personnel Security Investigation
Records; PBGC-13, Debt Collection; PBGC-14, My Plan Administration
Account Records; PBGC-15, Emergency Notification Records; PBGC-16,
People Search; PBGC-19, Office of Negotiations and Restructuring/Office
of General Counsel Case Management System--PBGC; PBGC-21, Reasonable
Accommodation Records; PBGC-22, Telework and Alternative Worksite
Records; PBGC-23, Internal Investigations of Allegations of Harassing
Conduct; PBGC-25, PBGC.GOV Comment Management System--PBGC; PBGC-26,
PBGC Insider Threat and Data Loss Prevention--PBGC; and PBGC-27,
Ensuring Workplace Health and Safety in Response to a Public Health
Emergency--PBGC. Additionally, PBGC is making numerous administrative
updates in all SORNs, to update the citations to the Contesting Records
Procedures section and to the Privacy Act of 1974, and to update SORNs
1-3, 6, 8-16, 19, 21-23, and 25-27, to remove the citation to the
Prefatory Statement of General Routine Uses and to update the Official
Addresses and System Locations. PBGC is proposing to amend the System
Names of SORNs 6, 17, 19, 25, 26, 27, 29, and 30. PBGC is proposing to
add one routine use to all SORNs: 1-3, 6, 8-16, 19, 21-23, and 25-27.
PBGC is proposing to add one routine use from its Prefatory Statement
of General Routine Uses to SORNs 28, 29, and 30. PBGC is proposing to
republish all current system of records notices. Amendments to specific
SORNs include the following: PBGC is proposing to amend the purpose,
categories of individuals and records, record source categories, and
the policy and practices for retrieval sections of PBGC-1,
Congressional Correspondence; PBGC is proposing to clarify its system
managers, a routine use, its practice of storing records in and the
purpose of PBGC-2, Disbursements; PBGC is proposing to clarify the
categories of records maintained in PBGC-3, Employee Payroll, Leave,
and Attendance Records; PBGC is proposing to update the categories of
records and record sources in PBGC-6: Plan Participant and Beneficiary
Data--PBGC; PBGC is proposing to clarify a routine use and remove the
exemption claimed by PBGC-8, Employee Relations Files; PBGC is
proposing to add a routine use, update the record source categories,
and amend three routine uses in PBGC-9, Unclaimed Retirement Funds;
PBGC is proposing to amend the purpose and sources of records in PBGC-
10, Administrative Appeals; PBGC is proposing to update the categories
of records of PBGC-11, Call Detail Records--PBGC; PBGC is proposing to
update the purpose of the system of records, update record sources,
amend three routine uses, and a two routine uses to PBGC-12, Personnel
Security Investigation Records; PBGC is proposing to update the system
location and categories of records for PBGC-14, My Plan Administration
Account Records--PBGC; PBGC is proposing to amend a routine use in
PBGC-15, Emergency Notification Records; PBGC is proposing to update
the purpose, categories of individuals, and categories of records to
PBGC-17, Office of Inspector General Investigative Filing System; PBGC
is proposing to update the categories of records for PBGC-19, Office of
Negotiations and Restructuring/Office of General Counsel Case
Management System--PBGC; PBGC is proposing to amend the system name,
amend the categories of individuals, amend the categories of records,
amend the record sources, update one routine use, and add two routine
uses in PBGC-22, Telework and Alternative Worksite Records; PBGC is
proposing to amend the name of the system of records, update the owner
of the system of records, update the category of records and add one
routine uses to PBGC-23, Internal Investigation of Allegations of
[[Page 73197]]
Harassing Conduct; PBGC is proposing to amend the name of the system of
records and update the owner of the system of records for PBGC-25,
PBGC.GOV Comment Management System--PBGC; and, PBGC is proposing to
amend the categories of records section of PBGC -29, Freedom of
Information Act and Privacy Act Request Records--PBGC.
(1) At the direction of the Office of Information and Regulatory
Affairs, PBGC is merging all pertinent General Routine Uses from the
Prefatory Statement of General Routine Uses into the Routine Uses
sections of SORNs 1-3, 6, 8-16, 19, 21-23, and 25-27.
At the direction of the Office of Management and Budget's (OMB)
Office of Information and Regulatory Affairs (OIRA), PBGC is proposing
to merge and list all pertinent General Routine Uses from the Prefatory
Statement of General Routine Uses, last published at 83 FR 6247 (Feb.
13, 2018), into the routine uses sections of the system of records
notices (SORNs) 1-3, 6, 8-16, 19, 21-23, and 25-27. PBGC will merge the
General Routine Uses cited in each SORN in their most recent
publication into the routine uses section of each SORN.
Additionally, as it merges General Routine Uses 4 and 5 into the
SORNs, PBGC is incorporating OIRA's suggested language to clarify that
any disclosures must be relevant and necessary to litigation. As it
merges General Routine Use 14 into the SORNs, PBGC is rewriting the
language to conform to OMB Memorandum A-130. All additional revisions
will be incorporated into the merger of routine uses and renumbered
accordingly.
(2) PBGC is removing the Prefatory Statement of General Routine
Uses.
PBGC is proposing to removing the Prefatory Statement of General
Routine Uses due to the merger of General Routine Uses into each SORN
discussed in Section 1.
(3) PBGC is proposing, in all SORNs, to update the citations to the
Contesting Records Procedures section and to the Privacy Act of 1974,
and to update SORNs 1-3, 6, 8-16, 19, 21-23, and 25-27, to remove the
citation to the Prefatory Statement of General Routine Uses and to
update the Official Addresses and System Locations.
When PBGC reviewed and revised its SORNs in 2018, it omitted the
citation to its regulations explaining the process to contest
information contained in records maintained by PBGC. PBGC is adding the
citation to 29 CFR 4902.5 to the Contesting Records Procedures section
of all its SORNs. Additionally, upon review, it was noticed that the
Routine Uses section of all SORNs contained a citation error. PBGC is
amending the Privacy Act citation in the Routine Uses section of all
its SORNs, changing it from 5 U.S.C. 522a(b) to 5 U.S.C. 552a(b).
Additionally, PBGC is removing all citations to PBGC's Prefatory
Statement of General Routine Uses in SORNs 1-3, 6, 8-16, 19, 21-23, and
25-27 to reflect that General Routine Uses were merged at the direction
of OIRA. Lastly, PBGC is updating the Official Addresses of SORNs 1-3,
6, 8-16, 19, 21-23, and 25-27 to reflect PBGC's new Headquarters
location and/or system locations where applicable.
(4) PBGC is proposing to amend the System Names of SORNs 6, 17, 19,
25, 26, 27, 29, and 30.
PBGC is amending the System Names to remove a naming convention
formerly installed with previous publications. Thus, in SORNs 6, 17,
25, 26, 27, 29, and 30, PBGC will remove ``--PBGC'' from the System
Names.
(5) PBGC is proposing to add one routine use to all SORNs: 1-3, 6,
8-16, 19, 21-23, and 25-27.
Additionally, PBGC is adding a new routine use that will read: ``To
another Federal agency or non-Federal entity to compare such records in
the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General (OIG) conducting an
audit, investigation, inspection, or some other review as authorized by
the Inspector General Act, as amended.'' Pursuant to the Inspector
General Empowerment Act of 2016, an Inspector General or an agency, in
coordination with an Inspector General, may conduct a computerized
comparison of two or more automated system of records or a comparison
of a Federal system of records with other records or non-Federal
records without it creating a matching program as defined by the
Computer Matching and Privacy Protection Act, as amended. PBGC's
Inspector General requested that PBGC create a new routine use to
reflect that information contained in a PBGC system of records may be
used in a computerized comparison of two or more system of records or
with non-Federal records in coordination with the OIG conducting an
audit, investigation, inspection, or some other review as authorized by
the Inspector General Act, as amended. The new routine use will be
numbered in each SORN accordingly.
(6) PBGC is proposing to add one routine use from its Prefatory
Statement of General Routine Uses to SORNs 28, 29, and 30.
During its review since their last publication, PBGC determined
that it inadvertently left out a General Routine Use 14 from its
Prefatory Statement of Routine Uses in SORNs: 28, 29, and 30. The new
routine use will be numbered in each SORN accordingly and will read
``To another Federal agency or Federal entity, when information from
this system of records is reasonably necessary to assist the recipient
agency or entity in (1) responding to a suspected or confirmed breach
or (2) preventing, minimizing, or remedying the risk of harm to
individuals, the agency (including its information systems, programs,
and operations), the Federal Government, or national security.''
(7) PBGC is proposing to republish all current system of records
notices.
PBGC annually reviews all system of records notices and attempts to
republish them biennially. SORNs 6, 17, 19, 21, 27, 28, 29, and 30 have
been published separately within the past four years. There have been
minor corrections, changes in system owners due to internal agency
realignments, and administrative changes for consistency in the
existing system of records notices since then. As such, PBGC proposes
to republish all current system of records notices in order to clarify
and consolidate information into one publication.
(8) PBGC is proposing to amend the purpose, categories of
individuals, categories of records, record sources, and the policy and
practices for retrieval of PBGC-1, Congressional Correspondence.
PBGC is proposing two amendments to this SORN.
First, PBGC is proposing to amend the Purpose of the System,
Categories of Individuals Covered by the System, Categories of Records
in the System, and Record Source Categories sections to reflect
inquiries may contain correspondence from the Executive Office of the
President of the United States.
Second, PBGC is proposing to amend the Policies and Practices for
Retrieval of Records section in PBGC-1: Congressional Correspondence
(last published at 83 FR 6253 (February 13, 2018)) to reflect an
additional retrieval method. The current wording of ``Name'' will be
altered to ``Records are retrieved by any one or more of the following:
name or Record ID Number.''
(9) PBGC is proposing to clarify the system managers, a routine
use, its practice of storing records in, and the purpose of PBGC-2,
Disbursements.
PBGC is proposing four amendments to PBGC-2, Disbursements (last
published at 83 FR 6254 (February 13, 2018)). First, PBGC proposes to
amend
[[Page 73198]]
the Purpose(s) of the System section to that this system is meant for
effecting all payments made on behalf of PBGC, not just those made by
Treasury, by removing the language ``payments made by the Treasury.''
Second, the Policies and Practices for Storage of Records section
currently states that records may be maintained in paper and/or
electronic form. The proposed language clarifies that ``Paper records
are stored in locked offices and PIV-reader accessed rooms.'' Third,
PBGC is proposing to add the Office of Benefits Administration as a
system owner due to their involvement with effecting benefits payments.
Fourth, PBGC is proposing to modify Routine Use 1 (formerly Routine Use
2) to clarify that this system effects payments to all persons.
(10) PBGC is proposing to clarify the categories of records
maintained in PBGC-3, Employee Payroll, Leave, and Attendance Records.
PBGC is proposing to add language to PBGC-3: Employee Payroll,
Leave, and Attendance Records (last published at 83 FR 6254 (February
13, 2018) to clarify what health information is maintained in the
system of records. The proposed language will read, ``health
information related to FMLA requests.''
(11) PBGC is proposing to update the categories of records and
record source categories in PBGC-6: Plan Participant and Beneficiary
Data--PBGC
PBGC is proposing two amendments to this SORN. First, PBGC will add
language to the Categories of Records in the System section of PBGC-6:
Plan Participant and Beneficiary Data (last published at 87 FR 79002
(December 23, 2022)) stating that the system may include user
attributes received from Login.gov for user authentication. Second,
PBGC will add the General Services Administration as a record source in
the Record Source Categories section and remove ``PBGC Field Offices''
for administrative updates.
(12) PBGC is proposing to remove the exemption claimed by PBGC-8,
Employee Relations Files and update a routine use.
PBGC is proposing two amendments to this SORN. First, PBGC is
proposing to remove the exemption claimed pursuant to 5 U.S.C.
552a(k)(2) by PBGC-8, Employee Relations Files (last published at 83 FR
6256 (February 13, 2018)). During its review, PBGC determined this
exemption was invalid. Second, PBGC is proposing to amend Routine Use 2
(formerly Routine Use 3) to include the fact that information may be
shared with an employee's attorney or union representative.
(13) PBGC is proposing to update the record source categories, and
amend three routine uses in PBGC-9, Unclaimed Retirement Funds.
PBGC is proposing four amendments to this SORN (last published at
83 FR 6256 (February 13, 2018)).
First, PBGC is proposing to update the Record Source Categories to
state that PBGC collects information contained within the system from
other Federal agencies, plan administrators, plan sponsors, and
insurance companies.
Second, PBGC proposes to amend Routine Uses 2 and 3 (formerly
Routine Uses 3 and 4) to reflect that PBGC may disclose records to a
labor organization recognized as the collective bargaining
representative for participants in a plan (Routine Use 2) or use
locator services (Routine Use 3) when it is unable to issue benefit
payments because an address cannot be confirmed as current or correct.
The new language to be added to Routine Uses 2 and 3 will read: ``or
PBGC is unable to make benefit payments to those participants,
beneficiaries, and alternate payees because the address on file is
unable to be confirmed as current or correct.''
Third, PBGC proposes to amend Routine Use 4 (formerly Routine Use
5). The Office of Benefits Administration requests that PBGC amend
Routine Use 5 to reflect that a contract that binds the licensee of the
Postal Service must reference the civil and criminal penalties of the
Privacy Act. Upon its review of the current Routine Use, PBGC
determined that the parameters of the Routine Use only required
reference to the criminal penalties, and both are needed.
Fourth, PBGC proposes updating Routine Use 6 (formerly Routine Use
7) to reflect that the forum for publishing information from this SORN
will be PBGC.GOV. The clarifying language will read ``Should PBGC
disclose information under this routine use, it may be disclosed to the
public by publishing on PBGC.GOV website.''
Note that the numbering changes to the Routine Uses discussed above
result from deleting the current Routine Use 1. Routine Use 1
incorporates some of the current General Routine Uses. As discussed
elsewhere in this document, PBGC, at the direction of OIRA, is
incorporating relevant General Routine Uses into each of its SORNs and
therefore revoking its General Routine Uses. Routine Use 1 is thus no
longer needed.
(14) PBGC is proposing to amend the purpose and sources of records
in PBGC-10, Administrative Appeals.
PBGC is proposing two amendments to PBGC-10, Administrative Appeals
(last published at 83 FR 6260 (February 13, 2018)). First, PBGC is
proposing to update the Purpose of the System section to clarify ``The
purpose of this system is to catalog, review, and respond to
administrative appeals of PBGC determinations (such as plan, benefit,
qualified domestic relations order, payment, and liability
determinations) by plan participants, beneficiaries and employers.''
Second, PBGC is proposing to amend the Record Source Categories section
to specify that PBGC may receive records from an individual's attorney
or other authorized representative.
(15) PBGC is proposing to update the categories of records and
record sources of PBGC-11, Call Detail Records
PBGC is proposing to amend the Categories of Records and Record
Source Categories sections of PBGC 11: Call Detail Records (last
published at 83 FR 6261 (February 13, 2018)) to clarify that the system
of records may include records from PBGC-issued communications devices
or communications software on PBGC-issued computers, portable
electronic devices, or desktop telephones, used to send communications
internally within or externally from PBGC and used to receive
communications internally within or externally from PBGC, and records
indicating the assignment of PBGC-issued communications devices or
communications software to PBGC employees.
(16) PBGC is proposing to update the purpose of the system of
records, update the record sources, amend three routine uses, and add a
routine uses to PBGC-12, Personnel Security Investigation Records.
PBGC proposes five amendments to PBGC-12, Personnel Security
Investigation Records (last published at 83 FR 6262 (February 13,
2018)).
First, PBGC proposes to amend the Purposes of the System section to
state that records may be used for insider threat investigations and to
include PBGC's participation in the National Background Investigation
Service's Continuous Vetting process and the Trusted Workforce 2.0
Program.
Second, PBGC proposes to broaden the Record Source Categories
section to reflect all personnel forms or security forms used in
connection with background checks.
Third, PBGC proposes amending Routine Uses 1, 2, and 9 (formerly
Routine Uses 2, 3, and 10) to remove references to the Office of
Personnel Management (OPM), which no longer conducts background
investigations for suitability determinations. PBGC proposes replacing
references to OPM
[[Page 73199]]
with ``the Federal agency conducting background investigations.''
Fourth, PBGC proposes to amend Routine Use 2 (formerly Routine Use
3) to include ``the Federal agency conducting background
investigations'' to reflect the fact the agency may need to provide
documentation to that agency to complete the investigation.
Fifth, PBGC proposes a new routine use to reflect that information
maintained in this system of records may be disclosed to PBGC's Insider
Threat Program in conjunction with an investigation or inquiry. New
Routine Use 13 will read: ``To provide information to PBGC's Insider
Threat Program in conjunction with determining the severity of the
risk, if any, posed by an employee or contractor.''
Note that the numbering changes to the Routine Uses discussed above
result from deleting the current Routine Use 1. Routine Use 1
incorporates some of the current General Routine Uses. As discussed
elsewhere in this document, PBGC, at the direction of OIRA, is
incorporating relevant General Routine Uses into each of its SORNs and
therefore revoking its General Routine Uses. Routine Use 1 is thus no
longer needed.
(17) PBGC is proposing no additional updates to PBGC-13, Debt
Collection
Other than what has been detailed in Sections 1-7, there are no
additional updates to this SORN.
(18) PBGC is proposing to update the system location, record
sources, and categories of records for PBGC-14, My Plan Administration
Account Records.
PBGC is proposing three amendments to PBGC-14, My Plan
Administration Account Records (last published at 83 FR 6272 (February
13, 2018)). First, PBGC is proposing to amend the System Location
section to reflect that records may be stored in the Oracle Service
Cloud. Second, PBGC proposes to amend the Categories of Records section
to include user attributes received from Login.gov for user
authentication. Third, PBGC will add the General Services
Administration as a record source in the Record Source Categories
section for Login.gov.
(19) PBGC is proposing to amend a routine use in PBGC-15, Emergency
Notification Records.
PBGC is proposing to amend Routine Use 1 (Formerly Routine Use 2)
in PBGC-15 (last published at 83 FR 6266 (February 13, 2018)) to
include compelling circumstances for disclosure. Amended Routine Use 1
will read ``A record in this system of records may be disclosed to
family members, emergency medical personnel, or to law enforcement
officials in case of a medical or other emergency involving compelling
circumstances affecting the health or safety of the subject individual
excepted by 5 U.S.C. 552a(b)(8).
(20) PBGC is proposing no additional amendments to PBGC-16, People
Search
Other than what has been detailed in Sections 1-7, there are no
additional updates to this SORN.
(21) PBGC is proposing to update the purpose, categories of
individuals, and categories of records to PBGC-17, Office of Inspector
General Investigative Filing System
PBGC is proposing three amendments PBGC-17 (last republished at 89
FR 3436 (Jan. 18, 2024)).
First, PBGC is amending the Purpose of the System section to be
more consistent with wording used in other PBGC SORNs and to correct
the name of the Office of the Inspector General (OIG).
Second, PBGC is amending the wording in the first sentence of the
Categories of Individuals Covered by the System section to replace
``Office of Inspector General'' with abbreviation: ``OIG.''
Third, PBGC is amending the Categories of Records section to
include the following: aliases, telephone and cell phone numbers,
physical and mailing addresses, electronic mailing addresses, and any
other relevant personal information that is a subject of investigation
by the OIG.
(22) PBGC is proposing to update the categories of records and
record sources for PBGC-19, Office of Negotiations and Restructuring/
Office of General Counsel Case Management System--PBGC
PBGC is proposing to amend the Categories of Records and Record
Source Categories sections of PBGC-19 (last published at 86 FR 49061
(Sep. 01, 2021)) to include user attributes received from Login.gov for
user authentication from the General Services Administration.
(23) PBGC is proposing no additional amendments to PBGC-21,
Reasonable Accommodation Records
Other than what has been detailed in Sections 1-7, there are no
additional updates to this SORN.
(24) PBGC is proposing to amend the system name, amend the purpose,
amend the categories of individuals, amend the categories of records,
amend the record sources, update one routine use, and add two routine
uses in PBGC-22, Telework and Alternative Worksite Records.
PBGC is proposing several amendments to PBGC-22: Telework and
Alternative Worksite Records (last published at 83 FR 6272 (February
13, 2018)).
First, PBGC is proposing to change the name to ``PBGC-22: Remote
Work, Telework, and Alternative Worksite Records--PBGC'' to reflect the
inclusion of remote work program records.
Second, PBGC proposes to add language to the Purpose(s) of the
System, Categories of Individuals, Record Source Categories, and
Categories of Records sections clarifying that the system includes
records relating to the remote work program. Moreover, PBGC proposes to
clarify in the Categories of Records section that medical telework is a
type of telework and that medical documentation to support the request
for medical telework may be contained in the system.
Third, PBGC proposes to amend Routine Use 4 (formerly Routine Use
5) to clarify that records may be disclosed to alternative dispute
resolution providers in labor or employment disputes. Routine Use 4
will now read: ``A record from this system of records may be disclosed
to appropriate third parties contracted by the agency to facilitate
mediation or other dispute resolution procedures or programs.''
Fourth, PBGC is also proposing to add a routine use for shipping of
information technology equipment to agency personnel. The new Routine
Use 5 will read: ``A record from this system may be disclosed to the
PBGC Information Technology Infrastructure Operations Department
(ITIOD) when necessary for the shipping of Government-owned IT
equipment to an employee's approved alternative work location.''
Fifth, PBGC proposes a new routine use--Routine Use 6--for loaning
office furniture to agency personnel. It will read ``A record from this
system may be disclosed to the PBGC Workplace Solutions Department
(WSD) when necessary to account for office furniture loaned to an
employee for use at their approved alternate work location.''
Note that the numbering changes to the Routine Uses discussed above
results from deleting the current Routine Use 1. Routine Use 1
incorporates some of the current General Routine Uses. As discussed
elsewhere in this document, PBGC, at the direction of OIRA, is
incorporating relevant General Routine Uses into each of its SORNs and
therefore revoking its General Routine Uses. Routine Use 1 is thus no
longer needed.
(25) PBGC is proposing to amend the name of the system of records,
update the owner of the system of records, update the category of
records, add one routine use to PBGC-23, Internal
[[Page 73200]]
Investigation of Allegations of Harassing Conduct, and remove
exemption.
PBGC is proposing five amendments to PBGC-23, Internal
Investigation of Allegations of Harassing Conduct (last published at 83
FR 6273 (February 13, 2018)).
First, PBGC proposes to amend the name of the system of records to
be more consistent with the body that conducts inquiries into
harassment complaints within PBGC. The new system name would be ``PBGC-
23: Internal Inquiries of Allegations of Harassing Conduct.''
Second, PBGC proposes to amend the system owners to be both the
Office of General Counsel's department director for the General Law and
Operations Department and the Human Resources Department, the two
departments that conduct inquiries into harassment complaints within
PBGC.
Third, PBGC is proposing to update the Categories of Records to
reflect that it now includes the ``Harassment Inquiry Committee intake
form.''
Fourth, PBGC is proposing to add a new routine use to reflect that
records may be disclosed to the PBGC Equal Employment Opportunity
Office or the Office of Inspector General in the course of their work.
Routine Use 2 will read, ``Disclosure of information from this system
of records may be made to the PBGC Office of Equal Employment
Opportunity or the PBGC Office of the Inspector General when related to
investigations under their jurisdiction.''
Lastly, PBGC is proposing to remove the exemption claimed pursuant
to 5 U.S.C. 552a(k)(2). During its review, PBGC determined this
exemption was invalid.
(26) PBGC is proposing to amend the name of the system of records
and update the owner of the system of records for PBGC-25, PBGC.GOV
Comment Management System--PBGC.
PBGC is proposing two amendments to PBGC-25: PBGC.GOV Comment
Management System--PBGC (last published at 83 FR 6274 (February 13,
2018)).
First, PBGC determined that, due to a proposed update to the
ownership of the system of records, the name of the system of records
should more accurately reflect its meaning. Accordingly, PBGC proposes
to amend the name of the system to: ``PBGC-25: Comment Management
System.''
Second, PBGC proposes to amend the owner of the system of records
to the Program Law and Policy Department within the Office of General
Counsel.
(27) PBGC is proposing no additional amendments to PBGC-26, PBGC
Insider Threat and Data Loss Prevention.
Other than what has been detailed in Sections 1-7, there are no
additional updates to this SORN.
(28) PBGC is proposing no additional amendments to PBGC-27,
Ensuring Workplace Health and Safety in response to a Public Health
Emergency--PBGC.
Other than what has been detailed in Sections 1-5, there are no
additional updates to this SORN.
(29) PBGC is proposing no additional amendments to PBGC-28,
Physical Security and Facility Access.
Other than what has been detailed in Sections 1-2 and 6-7, there
are no additional updates to this SORN.
(30) PBGC is proposing no additional amendments to PBGC-29, Freedom
of Information Act and Privacy Act Request Records--PBGC.
PBGC is proposing to amend the Categories of Records section of
PBGC-29 (last published at 88 FR 41663 (June 27, 2023)) to include user
attributes received from Login.gov for account creation and user
authentication.
(31) PBGC is proposing no additional amendments to PBGC-30, Surveys
and Complaints--PBGC.
Other than what has been detailed in Sections 1-7, there are no
additional updates to this SORN.
Pursuant to 5 U.S.C. 552a(e)(11), interested persons are invited to
submit written comments on the proposed changes described in this
notice. A report has been sent to Congress and the Office of Management
and Budget for their evaluation.
Issued in Washington, DC.
Charles Chalmers,
Deputy General Counsel, Pension Benefit Guaranty Corporation.
SYSTEM NAME AND NUMBER:
PBGC-1: Congressional Correspondence.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC, 20024-2101 (Records may be kept at an additional
location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Director, Communications Outreach and Legislative Affairs, PBGC,
445 12th Street SW, Washington, DC, 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 44 U.S.C. 3101; and 5 U.S.C. 301.
PURPOSE(S) OF THE SYSTEM:
This system of records is maintained to catalog and respond to
correspondence received from members of Congress and their staff on
behalf of their constituents, from the Executive Office of the
President, its Cabinet and their staff, and from correspondence
directed to the Office of the Director of PBGC.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Members of the United States Congress and their staff,
Congressional constituents, members of the President's Cabinet and
their staff, and individuals who have corresponded with PBGC.
CATEGORIES OF RECORDS IN THE SYSTEM:
Names of members of Congress, congressional staff, presidential
staff, and constituents; addresses; phone numbers; social security
numbers; customer identification numbers; email addresses; copies of
correspondence received; replies to such correspondence.
RECORD SOURCE CATEGORIES:
Members of Congress and their staff; members of the President's
Cabinet and their staff; correspondents; agency employees preparing
responses to incoming correspondence or who generate original
correspondence in their official capacities.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
2. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant
[[Page 73201]]
enforcement information or other pertinent information if, and to the
extent necessary, to obtain information relevant to a PBGC decision
concerning the hiring or retention of an employee, the retention of a
security clearance, or the letting of a contract.
3. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
4. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use is
compatible with the purpose for which PBGC collected the information.
5. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
6. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
7. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
8. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
9. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, the agency (including
its information systems, programs and operations), the Federal
Government, or national security; and (3) the disclosure made to such
agencies, entities, and persons is reasonably necessary to assist in
connection with PBGC's efforts to respond to the suspected or confirmed
breach or to prevent, minimize, or remedy such harm.
10. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
11. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
12. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
13. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
14. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained in paper and/or electronic form (including
computer databases or discs). Records may also be maintained on back-up
tapes, or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following: name or
Record ID Number.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
congressional correspondence and will be maintained in accordance with
General Records Schedule 5.7 Record Items: 050.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
[[Page 73202]]
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend, in accordance with 29 CFR 4902.5, their
records must submit a written request identifying the information they
wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-1, Congressional Correspondence (last published at 83 FR 6253
(Feb. 13, 2018)).
SYSTEM NAME AND NUMBER:
PBGC-2: Disbursements
SECURITY CLASSIFICATION:
Unclassified
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101, PBGC Field Offices (Field Benefit
Administration), and/or paying agent worksites. (Records may be kept at
an additional location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Director, Financial Operations Department, PBGC, 445 12th Street
SW, Washington, DC 20024-2101.
Chief of Benefits Administration, Office of Benefits
Administration, PBGC, 445 12th Street SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 44 U.S.C. 3101; 5 U.S.C. 301; 31 U.S.C. 6101 et
seq.; 31 U.S.C. 9101, et seq.; 31 U.S.C. 3716.
PURPOSE(S) OF THE SYSTEM:
This system of records is maintained for use in determining amounts
to be paid and in effecting payments on behalf of PBGC.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
PBGC Employees; consultants; contractors; vendors; and any other
individuals who receive payments from PBGC.
CATEGORIES OF RECORDS IN THE SYSTEM:
Acquisition data for the procurement of goods and services;
invoices; payment vouchers; financial information of commercial vendors
and government contractors; Electronic Funds Transfer (EFT)
information; IP information; cookies (session and persistent); name;
address; taxpayer identification number; financial information; bank
information; Social Security number; and other information related to
the disbursement of funds.
RECORD SOURCE CATEGORIES:
Subject individuals and PBGC.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and
5 U.S.C. 552a(b)(3) and:
1. A record from this system of records may be transmitted to the
United States Department of the Treasury and/or financial institutions,
including entities contracted by PBGC, to effect payments to all
persons, to verify all persons eligibility to receive payments, or to
fulfill PBGC's requirement pursuant to the Digital Accountability and
Transparency Act of 2014.
2. To the Office of Personnel Management (OPM), the Office of
Management and Budget (OMB), or the Government Accountability Office
(GAO) when the information is required for program evaluation purposes.
3. A record from this system may be disclosed to a consumer
reporting agency in accordance with 31 U.S.C. 3711(e).
4. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
5. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
6. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
7. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use is
compatible with the purpose for which PBGC collected the information.
8. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
[[Page 73203]]
9. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
10. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
11. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
12. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
13. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
14. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
15. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
16. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
17. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained in paper and/or electronic form (including
computer databases or discs). Records may also be maintained on back-up
tapes, or on a PBGC or a contractor-hosted network. Paper records are
stored in locked offices and PIV-reader accessed rooms.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following: name,
social security number, and taxpayer identification number.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for financial
systems and will be maintained in accordance with General Records
Schedule 2.4.
Transactional records may be temporary in nature and deleted once
payment has been accepted, any action has been completed, superseded,
obsolete, or no longer needed. The retention of other records may be
discontinued at the completion of the contract, a requisition requiring
payment, or upon receipt of the payment itself.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-2, Disbursements (last published at 83 FR 6254 (Feb. 13,
2018)).
[[Page 73204]]
SYSTEM NAME AND NUMBER:
PBGC-3: Employee Payroll, Leave, and Attendance Records.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101 (Records may be kept at an additional
location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Director, Financial Operations Division, PBGC, 445 12th Street SW,
Washington, DC 20024-2101.
Director, Human Resources Department, PBGC, 445 12th Street SW,
Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 29 CFR 825.305; 44 U.S.C. 3101; 5 U.S.C. 301; 5
U.S.C. 5501-5584.
PURPOSE(S):
This system of records is maintained to perform agency functions
involving employee, student, and intern leave, attendance, and
payments, including determinations relating to the amounts to be paid
to employees, the distribution of pay according to employee, student,
and intern directions (for allotments to financial institutions, and
for other authorized purposes), tax withholdings and other authorized
deductions, and for statistical purposes.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Current and former PBGC employees, students, and interns.
CATEGORIES OF RECORDS IN THE SYSTEM:
Personnel information, such as: names, addresses, phone numbers,
social security numbers, employee numbers, dates of birth,
notifications of personnel actions; payroll information, such as:
allotments and requests, marital status and number of dependents,
beneficiary data, child support enforcement order information (which
may include the social security numbers of custodian and minor
children), debts owed to PBGC, debts owed to the Federal government,
garnishments, personal bank account information, direct deposit
information, union dues, tax information, other deductions, time and
attendance records; co-owner and/or beneficiary of bonds; Thrift
Savings Plan information; Flexible Spending Account information; Long
Term Care Insurance; awards; retirement information; salary data
including pay rate, grade, length of service; health information
related to FMLA requests.
RECORD SOURCE CATEGORIES:
Subject individuals; subject individuals' supervisors; timekeepers;
Department of the Interior, Interior Business Center; and the Office of
Personnel Management.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record from this system may be disclosed to the United States
Department of the Interior, the United States Department of Labor,
Social Security Administration, and the United States Department of the
Treasury in order to effect payments to current or former PBGC
employees, students, and interns.
2. Information regarding current payments due or delinquent
repayments owed to PBGC through current and former employees, students,
and interns may be shared with the Department of the Treasury for the
purposes of offset.
3. Information from this system of records may be disclosed to the
Office of Personnel Management pursuant to that agency's responsibility
for the evaluation and oversight of Federal personnel management.
4. A record from this system may be disclosed to a consumer
reporting agency in accordance with 31 U.S.C. 3711(e).
5. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
6. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
7. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
8. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use is
compatible with the purpose for which PBGC collected the information.
9. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
10. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
11. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
12. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining
[[Page 73205]]
representative of PBGC employees in the bargaining unit.
13. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm
14. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
15. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
16. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
17. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
18. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
19. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained in paper and/or electronic form (including
computer databases or discs). Records may also be maintained on back-up
tapes, or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following: name;
employee number; or social security number.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for employee
systems and will be maintained in accordance with General Records
Schedule 2.4.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-3, Employee Payroll, Leave, and Attendance Records (last
published at 83 FR 6256 (Feb. 13, 2018)).
SYSTEM NAME AND NUMBER:
PBGC-6: Plan Participant and Beneficiary Data.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101, and/or PBGC Field Offices (Field Benefit
Administration), plan administrator worksites, and paying agent
worksites. (Records may be kept at an additional location as backup for
continuity of operations.)
SYSTEM MANAGER(S):
Chief of Benefits Administration, Office of Benefits
Administration, PBGC, 445 12th Street SW, Washington, DC 20024-2101.
[[Page 73206]]
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1055, 1056(d)(3), 1302, 1321, 1341, 1342, and 1350; 26
U.S.C. 6103; 44 U.S.C. 3101; 5 U.S.C. 301.
PURPOSE(S) OF THE SYSTEM:
This system of records is maintained for use in determining whether
participants, alternate payees, beneficiaries, spouses and domestic
partners are eligible for benefits under plans covered by the Employee
Retirement Income Security Act (ERISA), determining supplemental
payments to be paid to those persons by a party other than PBGC,
determining the amounts of benefits to be paid, making benefit
payments, collecting benefit overpayments, and complying with statutory
and regulatory mandates.
Names, addresses, and telephone numbers are used to survey
customers to measure their satisfaction with PBGC's benefit payment
services and to track (for follow-up) those who do not respond to
surveys.
De-identified, aggregated information from this system may be used
for research into, and statistical information about, benefit
determinations for actuaries and publications.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Participants, alternate payees, beneficiaries, spouses and domestic
partners in terminated and non-terminated retirement plans covered by
ERISA, and other individuals who contact PBGC regarding benefits they
may be owed from PBGC.
CATEGORIES OF RECORDS IN THE SYSTEM:
Names; addresses; telephone numbers; email addresses; user name;
universally unique identifier (UUID) from Login.gov for account
creation and authentication; gender; social security numbers and other
Social Security Administration information; tax identification numbers;
dates of birth and death; dates of hire, termination, and retirement;
salary; employment history; marital status; domestic relations orders;
time of plan participation; eligibility status; pay status; benefit
data, including records of benefit payments made to participants,
alternate payees, and beneficiaries in terminating and terminated
retirement plans; powers of attorney; insurance information where plan
benefits are provided by private insurers; medical records; disability
information; retirement plan names and numbers; correspondence; initial
and final PBGC determinations (see, 29 CFR 4003.21 and 4003.59); and
other records relating to debts owed to the Federal Government.
RECORD SOURCE CATEGORIES:
Plan administrators; participants, spouses, alternate payees,
beneficiaries, and other individuals who contact PBGC regarding
benefits they may be owed from PBGC; unions; insurance companies;
locator services; agents listed on release forms or power of attorneys;
the Social Security Administration (SSA); the Federal Aviation
Administration (FAA); the General Services Administration (GSA); and
other Federal agencies.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record from this system of records may be disclosed to third
parties, such as banks, insurance companies, collectively bargained
labor organizations, or trustees:
a. To enable these third parties to make or determine benefit
payments, or
b. To report to the Internal Revenue Service (IRS) the amounts of
benefits paid (or required to be paid) and taxes withheld.
2. A record from this system may be disclosed, in furtherance of
proceedings under Title IV of ERISA, to a contributing sponsor (or
other employer who maintained the plan), including any predecessor or
successor, and any member of the same control group.
3. A record from this system may be disclosed, upon request, for a
purpose authorized under ERISA, to an official of a labor organization
recognized as the current or former collective bargaining
representative of the individual about whom a request is made.
4. Payees' names, addresses, telephone numbers, and information
related to how PBGC determined that a debt was owed by such payees to
PBGC may be disclosed to the Department of the Treasury or a debt
collection agency or to collect a claim. Disclosure to a debt
collection agency may be made only under a contract issued by the
Federal government that binds any such contractor or employee of such
contractor to the penalties of the Privacy Act. The information so
disclosed will be used exclusively pursuant to the terms and conditions
of such contract and will be used solely for the purposes prescribed
therein. The contract must provide that the information so disclosed
will be returned at the conclusion of the debt collection effort.
5. The name and social security number of a participant employed or
formerly employed as a pilot by a commercial airline may be disclosed
to the Federal Aviation Administration to obtain information relevant
to the participant's eligibility or continued eligibility for
disability benefits.
6. The name of a participant's plan, the actual or estimated amount
of a participant's benefit under ERISA, the form(s) in which the
benefit is payable, and whether the participant is currently receiving
benefit payments under the plan or (if not) the earliest date(s) such
payments could commence may be disclosed to the participant's spouse,
domestic partner, former spouse, former domestic partner, child, or
other dependent solely to obtain a qualified domestic relations order
under 29 U.S.C. 1056(d) and 26 U.S.C. 414(p). PBGC will disclose the
information only upon the receipt of a written request by a prospective
alternate payee, or the alternate payee's representative, that
describes the requester's relationship to the participant and states
that the information will be used solely to obtain a qualified domestic
relations order under state domestic relations law. PBGC will notify
the participant of any information disclosed to a prospective alternate
payee or their representative under this routine use.
7. Information from an initial benefit determination under 29 CFR
4003 (excluding the participant's address, telephone number, social
security number, and any sensitive medical information) may be
disclosed to an alternate payee, or their representative, under a
qualified domestic relations order issued pursuant to 29 U.S.C. 1056(d)
and 26 U.S.C. 414, et seq., to explain how PBGC determined the benefit
due the alternate payee so that the alternate payee can pursue an
administrative appeal of the benefit determination under 29 CFR 4003,
et seq. PBGC will notify the participant of the information disclosed
to an alternate payee or their representative under this routine use.
8. Information from an alternate payee's initial benefit
determination under 29 CFR 4003.1 (excluding the alternate payee's
address, telephone number, social security number, and any sensitive
medical information) may be disclosed to a participant, or their
representative, under a qualified domestic relations order issued
pursuant to 29 U.S.C. 1056(d) and 26 U.S.C. 414(p) to explain how PBGC
determined the benefit due to the alternate payee so that the
participant may pursue an administrative appeal of the benefit
determination under 29 CFR 4003, et seq. PBGC will notify the alternate
payee of the information
[[Page 73207]]
disclosed to a participant or their representative under this routine
use.
9. Information used in calculating the benefit, or share of the
benefit, of a participant or alternate payee (excluding the
participant's or alternate payee's address, telephone number, social
security number, and any sensitive medical information) may be
disclosed to a participant or an alternate payee, or their
representative, when (a) a qualified domestic relations order issued
pursuant to 29 U.S.C. 1056(d) and 26 U.S.C. 414(p) affects the
calculation of the benefit, or share of the benefit, of the participant
or alternate payee; and (b) the information is needed to explain to the
participant or alternate payee how PBGC calculated the benefit, or
share of the benefit, of the participant or alternate payee. PBGC will
notify the participant or the alternate payee, or their representative,
as appropriate, of the information disclosed to the participant or the
alternate payee, or their representative, under this routine use.
10. The names, addresses, social security numbers, dates of birth,
and the pension plan name and number of eligible PBGC pension
recipients may be disclosed to the Department of the Treasury and the
Department of Labor to implement the income tax credit for health
insurance costs under 26 U.S.C. 35 and the program for advance payment
of the tax credit under 26 U.S.C. 7527.
11. Names, addresses, social security numbers, and dates of birth
of eligible PBGC pension recipients residing in a particular state may
be disclosed to the state's workforce agency if the agency received a
National Dislocated Worker Grant from the Department of Labor under the
Workforce Innovation and Opportunity Act of 2014 to provide assistance
and support services for state residents under 29 U.S.C. 3225.
12. Payees' names, social security numbers, and dates of birth may
be provided to the Department of the Treasury's Bureau of the Fiscal
Service, the Social Security Administration, the Internal Revenue
Service, or a third party with whom PBGC has a contractual
relationship, to verify payees' eligibility to receive payments.
13. Names and social security numbers of participants and
beneficiaries may be provided to the Department of the Treasury, the
Department of the Treasury's financial agent, and the Federal Reserve
Bank for the purpose of learning which of PBGC's check payees have
electronic debit card accounts used for the electronic deposit of
Federal benefit payments, for establishing electronic debit card
accounts for eligible participants and beneficiaries, and for
administering payments to participants and beneficiaries who have
selected this method of payment.
14. Information relating to revocation of a power of attorney may
be disclosed to the former agent that was named in the revoked power of
attorney.
15. With the exception of third-party social security numbers, all
beneficiary information contained in the participant file (such as:
names, addresses, phone numbers, email addresses and dates of birth)
provided by the subject of the record may be disclosed to the subject
of the record, upon written request to the Disclosure Officer in
accordance with the Record Access Procedure outlined below.
16. Names, social security numbers, last known addresses, dates of
birth and death, amount of benefit, plan name, plan EIN/PIN number,
name of plan sponsor, and the city and state of the plan sponsor of
plan participants and beneficiaries may be disclosed to third parties,
with whom PBGC has a contractual relationship, that provide locator
services (including credit reporting agencies, debt collection firms,
or other Federal agencies) to locate participants and beneficiaries.
Such information will be disclosed only if PBGC has no address for an
individual, if mail sent to the individual at the last known address is
returned as undeliverable, if PBGC has been unable to make benefit
payments to those participants, beneficiaries, and alternate payees
because the address on file is unable to be confirmed as current or
correct or if PBGC has been otherwise unsuccessful at contacting the
individual. Disclosure may be made only under a contract that subjects
the firm or agency providing the service and its employees to the civil
and criminal penalties of the Privacy Act. The information so disclosed
will be used exclusively pursuant to the terms and conditions of such
contract and will be used solely for the purposes prescribed therein.
The contract shall provide that the information so disclosed must be
returned or destroyed at the conclusion of the locating effort.
17. Names and addresses may be disclosed to licensees of the United
States Postal Service (USPS) to obtain current addresses under the
USPS's National Change of Address Linkage System (NCOA). Disclosure may
be made only under a contract that binds the licensee of the Postal
Service and its employees to the civil and criminal penalties of the
Privacy Act. The contract must provide that the records disclosed by
PBGC will be used exclusively for updating addresses under NCOA and
must be returned to PBGC or destroyed when the process is completed.
The records will be exchanged electronically in an encrypted format.
18. Names, social security numbers, last known addresses, dates of
birth and death, employment history, and pay status of individuals
covered by legal settlement agreements involving PBGC may be disclosed
to entities covered by or created under those agreements.
19. A record from this system may be disclosed to a consumer
reporting agency in accordance with 31 U.S.C. 3711(e).
20. A record from this system may be disclosed to law enforcement
in the event the record is connected to a violation or potential
violation of law, whether civil, criminal or regulatory in nature, and
whether arising by general statute, regulation, rule, or order issued
pursuant thereto. Such disclosure may be made to the appropriate
agency, whether federal, state, local, or tribal, or other public
authority responsible for enforcing, investigating or prosecuting such
violation or charged with enforcing or implementing the statute, or
rule, regulation, or order issued pursuant thereto, if PBGC determines
that the records are both relevant and necessary to any enforcement,
regulatory, investigative or prospective responsibility of the
receiving entity.
21. A record from this system of records may be disclosed to a
federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
22. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the proceeding and that the use is
compatible with the purpose for which PBGC collected the information.
23. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her
[[Page 73208]]
individual capacity whom PBGC (or DOJ) has agreed to represent is a
party to a proceeding before a court or other adjudicative body, or the
United States or any other federal agency is a party and PBGC
determines that it has an interest in the proceeding, a record from
this system of records may be disclosed to DOJ if PBGC is consulting
with DOJ regarding the proceeding or has decided that DOJ will
represent PBGC, or its interest, in the proceeding and PBGC determines
that the record is relevant and necessary to the proceeding and that
the use is compatible with the purpose for which PBGC collected the
information.
24. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
25. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
26. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
27. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
28. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
29. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
30. To disclose information to a federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
31. To another federal agency or federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
32. To Another Agency or Non-Federal Entity in Connection with an
OIG Audit, Investigation, or Inspection: To another Federal agency or
non-Federal entity to compare such records in the agency's system of
records or to non-Federal records in coordination with the Office of
Inspector General conducting an audit, investigation, inspection, or
some other review as authorized by the Inspector General Act, as
amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form
(including computer databases or discs). Records may also be maintained
on back-up tapes, or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following: name;
social security number; customer identification number; address; date
of birth; or date of death.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 2.1: Plan, Participant, and Insurance Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
Paper and electronic records that contain Federal Tax Information
are stored under procedures that meet IRS safeguarding standards, as
reflected in IRS Publication 1075, and are kept in file folders in
areas of restricted access that are locked after office hours.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4 or to amend records pertaining to themselves in
accordance with 29 CFR 4902.5, should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
[[Page 73209]]
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-6, Plan Participant and Beneficiary Data (last published at 87
FR 79002 (Dec. 23, 2022)).
SYSTEM NAME AND NUMBER:
PBGC-8: Employee Relations Files.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101 (Records may be kept at an additional
location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Director, Human Resources Department, PBGC, 445 12th Street SW,
Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 44 U.S.C. 3101; 5 U.S.C. 301; 5 U.S.C. 7101; 42
U.S.C. 2000e et seq.
PURPOSE(S) OF THE SYSTEM:
The purpose of this system is to catalog, investigate, and
appropriately and timely respond to administrative and union grievances
and appeals filed by PBGC employees or the Union on behalf of an
employee pursuant to PBGC's Administrative Grievance Procedure and the
Collective Bargaining Agreement.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Current and former PBGC employees who have initiated grievances
under an administrative grievance procedure or under an applicable
collective bargaining agreement.
CATEGORIES OF RECORDS IN THE SYSTEM:
Administrative and union grievances submitted by PBGC employees or
the Union; agency responses to employees and Union grievances;
employees' appeals of responses to grievances; agency responses to such
appeals and related correspondence; investigative notes; records of
proceedings; appeal decisions; last chance, last rights, and settlement
agreements, and related information.
RECORD SOURCE CATEGORIES:
Subject individuals; subject individuals' supervisors, managers,
representatives or colleagues; PBGC Office of the General Counsel; PBGC
Human Resources Department staff; Department of Labor; Office of
Personnel Management; United States Office of Special Counsel; Federal
Labor Relations Authority; the Equal Employment Opportunity Commission;
the Merit Systems Protection Board; and other individuals with relevant
information.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record from this system of records may be disclosed to the
Office of Personnel Management, the Merit Systems Protection Board, the
Federal Labor Relations Authority, Office of Special Counsel, or the
Equal Employment Opportunity Commission to carry out their authorized
functions (under 5 U.S.C. 1103, 1204, 7105, and 42 U.S.C. 2000e-4, in
that order).
2. A record from this system may be disclosed to a union
representative, attorney, Hearing Examiner or Arbitrator for the
purpose of representation or in order to conduct a hearing in
connection with an employee's grievance or appeal.
3. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
4. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
5. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
6. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use is
compatible with the purpose for which PBGC collected the information.
7. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
8. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
9. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
10. A record from this system of records may be disclosed to an
official
[[Page 73210]]
of a labor organization recognized under 5 U.S.C. ch. 71 when necessary
for the labor organization to properly perform its duties as the
collective bargaining representative of PBGC employees in the
bargaining unit.
11. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
12. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
13. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
14. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
15. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
16. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form
(including computer databases or discs). Records may also be maintained
on back-up tapes, or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by employee name or social security number.
Retention and Disposal:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 1.2: Administrative Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, following the requirements of
Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-8, Employee Relations Files (last published at 83 FR 6258
(Feb. 13, 2018)).
SYSTEM NAME AND NUMBER:
PBGC-9: Unclaimed Retirement Funds.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101 and paying agent worksites. (Records may be
kept at an additional location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Chief of Benefits Administration, Office of Benefits
Administration, PBGC, 445 12th Street SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1055, 1056(d)(3), 1302, 1321, 1322, 1322a, 1341, 1342,
and 1350; 29 U.S.C. 1203; 44 U.S.C. 3101; 5 U.S.C. 301.
PURPOSE(S) OF THE SYSTEM:
This system of records is maintained to locate participants,
alternate payees,
[[Page 73211]]
and beneficiaries of defined benefit and defined contribution plan
funds who may be owed benefits as the result of a terminated plan or
defined contribution plan whose funds are held under the control or
authority of PBGC, and to provide information on insurance companies to
individuals who may have had annuities purchased for them by a
terminated plan.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Participants, alternate payees, and beneficiaries in defined
benefit plans and defined contribution plans.
CATEGORIES OF RECORDS IN THE SYSTEM:
Names; dates of birth and death; social security numbers;
addresses; email addresses; telephone numbers; names of plan sponsor;
names of defined benefit and defined contribution plans; plan numbers
for defined benefit and defined contribution plans; employment history;
pay status; amount of benefit owed; last known address of the plan
sponsor and plan sponsor EIN/PN.
RECORD SOURCE CATEGORIES:
PBGC-6; the SSA; the FAA; the IRS; other Federal agencies; plan
administrators; plan sponsors; insurance companies; labor organization
officials; firms or agencies providing locator services; USPS
licensees; and any other individual that provides PBGC with information
regarding a missing participant, beneficiary, or alternate payee.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. Names and social security numbers of plan participants,
beneficiaries, and alternate payees may be disclosed to the Internal
Revenue Service (IRS) to obtain current addresses from tax return
information and to the Social Security Administration (SSA) to obtain
current addresses. Such information will be disclosed only if PBGC has
no address for an individual or if mail sent to the individual at the
last known address is returned as undeliverable.
2. Names and last known addresses may be disclosed to an official
of a labor organization recognized as the collective bargaining
representative of participants for posting in union halls or for other
means of publication to obtain current addresses of participants and
beneficiaries. Such information will be disclosed only if PBGC has no
address for an individual, if mail sent to the individual at the last
known address is returned as undeliverable, or PBGC is unable to make
benefit payments to those participants, beneficiaries, and alternate
payees because the address on file is unable to be confirmed as current
or correct or if PBGC has been otherwise unsuccessful at contacting the
individual.
3. Names, social security numbers, last known addresses, dates of
birth and death, amount of benefit, retirement plan name, plan EIN/PN
number, name of plan sponsor, and the city and state of the plan
sponsor may be disclosed to private firms and agencies that provide
locator services, including credit reporting agencies and debt
collection firms or agencies, to locate participants, beneficiaries,
and alternate payees. Such information will be disclosed only if PBGC
has no address for an individual, if mail sent to the individual at the
last known address is returned as undeliverable, if PBGC has no address
for an individual, if mail sent to the individual at the last known
address is returned as undeliverable, or if PBGC has been otherwise
unsuccessful at contacting the individual or if PBGC is unable to make
benefit payments to those participants, beneficiaries, and alternate
payees because the address on file is unable to be confirmed as current
or correct or if PBGC has been otherwise unsuccessful at contacting the
individual. Disclosure may be made only under a contract that subjects
the firm or agency providing the service and its employees and
contractors to the civil and criminal penalties of the Privacy Act. The
information so disclosed will be used exclusively pursuant to the terms
and conditions of such contract and must be used solely for the
purposes prescribed therein. The contract must provide that the
information so disclosed will be returned or destroyed at the
conclusion of the locating effort.
4. Names and addresses may be disclosed to licensees of the United
States Postal Service (USPS) to obtain current addresses under the
USPS's National Change of Address Linkage System (NCOA). Disclosure may
be made only under a contract that binds the licensee of the Postal
Service and its employees to the civil and criminal penalties of the
Privacy Act. The contract must provide that the records disclosed by
PBGC will be used exclusively for updating addresses under NCOA and
must be returned to PBGC or destroyed when the process is completed.
The records will be exchanged electronically in an encrypted format.
5. Names and last known addresses may be disclosed to other
participants in, and beneficiaries under, a retirement plan to obtain
the current addresses of individuals. Such information will be
disclosed only if PBGC has no address for an individual or if mail sent
to the individual at the last known address is returned as
undeliverable.
6. Names of participants and beneficiaries, names and addresses of
participants' former employers, and the plan name may be disclosed to
the public to obtain the current addresses for participants,
beneficiaries, and alternate payees. Should PBGC disclose information
under this routine use, it may be disclosed to the public by publishing
on PBGC.GOV website when PBGC is unable to make benefit payments to
those participants, beneficiaries, and alternate payees because the
address on file is unable to be confirmed as current or correct.
7. Names, social security numbers, last known addresses, dates of
birth and death, employment history, and pay status of individuals
covered by legal settlement agreements involving PBGC may be disclosed
to entities covered by or created under those agreements.
8. Names, social security numbers, last known addresses, dates of
birth, and benefit amounts owed may be disclosed to other government
agencies under a Memorandum of Understanding or an Interagency
Agreement in order to locate missing participants.
9. Names, social security numbers, dates of birth and death, name
of plan sponsors, plan sponsor EIN/PN may be periodically disclosed to
insurance companies where annuities have been purchased by a terminated
plan.
10. A record from this system may be disclosed to law enforcement
in the event the record is connected to a violation or potential
violation of law, whether civil, criminal or regulatory in nature, and
whether arising by general statute, regulation, rule, or order issued
pursuant thereto. Such disclosure may be made to the appropriate
agency, whether federal, state, local, or tribal, or other public
authority responsible for enforcing, investigating or prosecuting such
violation or charged with enforcing or implementing the statute, or
rule, regulation, or order issued pursuant thereto, if PBGC determines
that the records are both relevant and necessary to any enforcement,
regulatory, investigative or prospective responsibility of the
receiving entity.
11. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official
[[Page 73212]]
capacity, an employee of PBGC in his or her individual capacity whom
PBGC (or the Department of Justice (DOJ)) has agreed to represent is a
party, or the United States or any other federal agency is a party and
PBGC determines that it has an interest in the proceeding, and if PBGC
determines that the record is relevant and necessary to the proceeding
and that the use is compatible with the purpose for which PBGC
collected the information.
12. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the proceeding and that the use is compatible with the
purpose for which PBGC collected the information.
13. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
14. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
15. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
16. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
17. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
18. To disclose information to a federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
19. To another federal agency or federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
20. To Another Agency or Non-Federal Entity in Connection with an
OIG Audit, Investigation, or Inspection: To another Federal agency or
non-Federal entity to compare such records in the agency's system of
records or to non-Federal records in coordination with the Office of
Inspector General conducting an audit, investigation, inspection, or
some other review as authorized by the Inspector General Act, as
amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form
(including computer databases or discs). Records may also be maintained
on back-up tapes, or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by employee name, social security number and/
or date of birth.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 2.1: Plan, Participant, and Insurance Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a
[[Page 73213]]
written request to the Disclosure Officer, PBGC, 445 12th Street SW,
Washington, DC 20024-2101, providing their name, address, date of
birth, and verification of their identity in accordance with 29 CFR
4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-9, Unclaimed Pensions (amended to Unclaimed Retirement Funds)
(last published at 83 FR 6256 (Feb. 13, 2018)).
SYSTEM NAME AND NUMBER:
PBGC-10: Administrative Appeals Files.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101. (Records may be kept at an additional
location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Manager of the Appeals Division, Office of the General Counsel,
PBGC, 445 12th Street SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 44 U.S.C. 3101; 5 U.S.C. 301; 29 U.S.C. ch. 18; 29
CFR 4003.
PURPOSE(S) OF THE SYSTEM:
The purpose of this system is to catalog, review, and respond to
administrative appeals of PBGC determinations (such as plan, benefit,
qualified domestic relations order, payment, and liability
determinations) by plan participants, beneficiaries and employers.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Individuals who file administrative appeals with the PBGC Appeals
Board.
CATEGORIES OF RECORDS IN THE SYSTEM:
Personal information (such as names, addresses, social security
numbers, gender, dates of birth, dates of hire and termination, salary,
marital status, marriage certificates, birth certificates, domestic
relations orders, medical records); employment and pension plan
information (such as the name of the pension plan, plan number, dates
of commencement of plan participation or employment, statements
regarding employment, dates of termination of plan participation or
retirement, benefit payment data, benefit election forms and data on
beneficiaries, pay status, calculations of benefit amounts,
calculations of amounts subject to recoupment and/or recovery, and
worker's compensation awards); Social Security Administration (SSA)
information; insurance claims and awards; correspondence; and other
information relating to appeals and initial and final PBGC
determinations.
RECORD SOURCE CATEGORIES:
Subject individuals; participants, beneficiaries, or alternate
payees; attorney or other authorized representative; plan
administrators, plan actuaries, paying agents, purchased annuity
providers, contributing sponsors (or other employer who maintained the
plan, which may include any predecessor, successor, or member of the
same control group); the labor organization recognized as the
collective bargaining representative of a participant; SSA; other
individuals who possess relevant records; and any third party affected
by the decision.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record from this system may be disclosed to third parties who
may be aggrieved by the decision of the Appeals Board under 29 CFR
4003.57.
2. A record from this system may be disclosed, upon request, to an
attorney representative or a non-attorney representative who has a
power of attorney for the subject individuals, under 29 CFR 4003.6.
3. A record from this system may be disclosed to third parties,
such as banks, insurance companies, and trustees, to effectuate benefit
payments to plan participants, beneficiaries, and/or alternate payees.
4. A record from this system may be disclosed to third parties,
such as contractors and expert witnesses, to obtain expert analysis of
an issue necessary to resolve an appeal.
5. A record from this system, specifically, the name and social
security number of a participant, may be disclosed to an official of a
labor organization recognized as the collective bargaining
representative of the participant to obtain information relevant to the
resolution of an appeal.
6. A record from this system may be disclosed to a consumer
reporting agency in accordance with 31 U.S.C. 3711(e).
7. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
8. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use is
compatible with the purpose for which PBGC collected the information.
9. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
10. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
11. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
12. A record from this system of records may be disclosed to an
official
[[Page 73214]]
of a labor organization recognized under 5 U.S.C. ch. 71 when necessary
for the labor organization to properly perform its duties as the
collective bargaining representative of PBGC employees in the
bargaining unit.
13. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm
14. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
15. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
16. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
17. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
18. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
19. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form
(including computer databases or discs). Records may also be maintained
on back-up tapes, or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following:
participant, beneficiary, and/or alternate payee's name, social
security number, or PBGC customer identification number; plan name;
appeal number; or extension request number.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 1.2: Administrative Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-10, Administrative Appeals Files (last published at 83 FR 6260
(Feb. 13, 2018)).
SYSTEM NAME AND NUMBER:
PBGC-11: Call Detail Records.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101. (Records may be kept at an additional
location as backup for continuity of operations.)
[[Page 73215]]
SYSTEM MANAGER(S):
Chief Information Officer, Office of Information Technology, PBGC,
445 12th Street SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 44 U.S.C. 3101; 5 U.S.C. 301.
PURPOSE(S) OF THE SYSTEM:
This system of records is used for Office of the Inspector General
investigations and other special investigation requests.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
PBGC employees, contractors, students and interns.
CATEGORIES OF RECORDS IN THE SYSTEM:
Records relating to the use of PBGC-issued communications devices
or communications software on PBGC-issued computers, portable
electronic devices, or desktop telephones, used to send communications
internally within or externally from PBGC and used to receive
communications internally within or externally from PBGC, and records
indicating the assignment of PBGC-issued communications devices or
communications software to PBGC employees.
RECORD SOURCE CATEGORIES:
Assignment records for PBGC-issued communications devices or
communications software on PBGC-issued computers, portable electronic
devices, or desktop telephones.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
2. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
3. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use is
compatible with the purpose for which PBGC collected the information.
4. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
5. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
6. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
7. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
8. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
9. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
10. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
11. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
12. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
13. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
[[Page 73216]]
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained in electronic form (including computer
databases or discs). Records may also be maintained on back-up tapes,
or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following: name of
employee or contractor; telephone extension number; PBGC-issued
portable electronic device number; or telephone number called.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 2.2: Governance Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-11, Call Detail Records (last published at 83 FR 6261 (Feb.
13, 2018)).
SYSTEM NAME AND NUMBER:
PBGC-12: Personnel Security Investigation Records.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101 (Records may be kept at an additional
location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Department Director, Information Technology Infrastructure
Operations Department, PBGC, 445 12th Street SW, Washington, DC 20024-
2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 5 U.S.C. 3301; 44 U.S.C. 3101; Executive Order
10577; Executive Order 12968; Executive Order 13467; Executive Order
13488; 5 CFR 5.2; 5 CFR 731, 732 and 736; 5 CFR 1400; OMB Circular No.
A-130 Revised; Federal Information Processing Standard 201; Homeland
Security Presidential Directive 12.
PURPOSE(S) OF THE SYSTEM:
The records in this system of records are used to document and
support decisions as to the suitability, eligibility, and fitness for
service of applicants for Federal employment and contract positions,
and may include students, interns, or vendors to the extent their
duties require access to Federal facilities, information, information
systems, or applications.
The records may also be used to help streamline and make the
background suitability investigations and adjudications processes more
efficient.
The records additionally may be used for insider threat
investigations, to document security violations and supervisory actions
taken in response to such violations, and to support PBGC's
participation in continuous vetting processes that conduct automated
database checks.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Current and former applicants, employees, students, interns,
government contractors, experts, instructors, vendors, and consultants
to Federal programs who undergo a personnel background investigation to
determining suitability for employment, contractor employee fitness,
credentialing for Homeland Security Presidential Directive 12, and/or
access to PBGG facilities or information technology system. Individuals
who have corresponded with PBGC regarding personnel security
investigations. This system also includes individuals accused of or
found in violation of PBGC's security rules and regulations.
CATEGORIES OF RECORDS IN THE SYSTEM:
Name; former names; date and place of birth; home address; email
address; phone numbers; employment history; residential history;
education and degrees; citizenship; passport information; name, date
and place of birth, social security number, and citizenship information
for spouse or cohabitant; the name and marriage information for current
and former spouse(s) or domestic partner, names of associates and
references and their contact information; names, dates and places of
birth, citizenship, and addresses of relatives; names of relatives who
work for the Federal government; information on foreign contacts and
activities; association records; information on loyalty to the United
States; criminal history; mental health history; drug use; financial
information; photographs; personal identity verification (PIV) card
information; information from the Internal Revenue
[[Page 73217]]
Service (IRS) pertaining to income tax returns; credit reports;
information pertaining to security clearances; other agency reports
furnished to PBGC in connection with the background investigation
process; summaries of personal and third party interviews conducted
during the background investigation; results of suitability decisions;
and additional records developed from records above.
Records pertaining to security violations may contain information
pertaining to circumstances of the violation; witness statements;
investigator's notes; and documentation of agency action taken in
response to security violations.
RECORD SOURCE CATEGORIES:
Questionnaires for national security, public trust, or non-
sensitive positions; information from personal interviews with the
applicant and various individuals, such as former employers,
references, neighbors, and other associates who may have information
about the subject of the investigation; investigative records and
notices of personnel actions furnished by other Federal agencies;
public records such as court filings; publications such as newspapers,
magazines, and periodicals; tax records; educational institutions;
police departments; credit bureaus; probation officials; prison
officials; and medical professionals.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record, from which information is requested during an
investigation or during continuous monitoring of investigations from
this system, may be disclosed to an authorized source (i.e., someone
who has the legal authority to request such information, such as an
investigator from the Federal agency conducting background
investigations, or the Office of the Inspector General) to the extent
necessary to identify the individual, inform the source of the nature
and purpose of the investigation, or identify the type of information
requested.
2. A record from this system of records may be disclosed to the
Federal agency conducting background investigations, the Office of
Personnel Management, the Merit Systems Protection Board, the Federal
Labor Relations Authority, or the Equal Employment Opportunity
Commission to carry out its respective authorized functions (under 5
U.S.C. 1204, and 7105, and 42 U.S.C. 2000e-4).
3. To designated officers and employees of agencies, offices, and
other establishments in the executive, legislative, and judicial
branches of the Federal Government, having a need to evaluate
qualifications, suitability, and loyalty to the United States
Government and/or a security clearance or access determination.
4. To designated officers and employees of agencies, offices, and
other establishments in the executive, legislative, and judicial
branches of the Federal Government, when such agency, office, or
establishment investigates an individual for purposes of granting a
security clearance, or for the purpose of making a determination of
qualifications, suitability, or loyalty to the United States
Government, or access to classified information or restricted areas.
5. To designated officers and employees of agencies, offices, and
other establishments in the executive, judicial, or legislative
branches of the Federal Government, having the responsibility to grant
clearances to make a determination regarding access to classified
information or restricted areas, or to evaluate qualifications,
suitability, or loyalty to the United States Government, in connection
with performance of a service to the Federal Government under a
contract or other agreement.
6. To U.S. intelligence agencies for use in intelligence
activities.
7. To the appropriate Federal, state, tribal, local, or other
public authority responsible for investigating, prosecuting, enforcing,
or implementing a statute, rule, regulation, or order where OPM becomes
aware of an indication of a violation or potential violation of civil
or criminal law or regulation.
8. To an agency, office, or other establishment in the executive,
legislative, or judicial branches of the Federal Government, in
response to its request, in connection with the hiring or retention of
an employee, the issuance of a security clearance, the conducting of a
security or suitability investigation of an individual, the classifying
of jobs, the letting of a contract, or the issuance of a license,
grant, or other benefit by the requesting agency, to the extent that
the information is relevant and necessary to the requesting agency's
decision on the matter.
9. To provide information to a congressional office from the record
of an individual in response to an inquiry from the congressional
office made at the request of that individual. However, to the extent
these records may reveal the identity of an individual who has provided
information pertaining to the investigation, the investigative file, or
the parts thereof, are exempt from release. Further, requests for
records contained in this system will be referred to the Federal agency
conducting background investigations.
10. To disclose information to contractors, experts, consultants,
or students performing or working on a contract, service, or job for
PBGC.
11. To disclose results of investigations or individuals records to
agencies, such as the Department of Labor, providing adjudicative
support services to PBGC.
12. To provide criminal history record information to the FBI, to
help ensure the accuracy and completeness of FBI and PBGC records.
13. To provide information to PBGC's Insider Threat program in
conjunction with determining the severity of the risk, if any, posed by
an employee or contractor.
14. A record from this system may be disclosed to law enforcement
in the event the record is connected to a violation or potential
violation of law, whether civil, criminal or regulatory in nature, and
whether arising by general statute, regulation, rule, or order issued
pursuant thereto. Such disclosure may be made to the appropriate
agency, whether federal, state, local, or tribal, or other public
authority responsible for enforcing, investigating or prosecuting such
violation or charged with enforcing or implementing the statute, or
rule, regulation, or order issued pursuant thereto, if PBGC determines
that the records are both relevant and necessary to any enforcement,
regulatory, investigative or prospective responsibility of the
receiving entity.
15. A record from this system of records may be disclosed to a
federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
16. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
[[Page 73218]]
grant, or other benefit may be disclosed to that federal agency.
17. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the proceeding and that the use is
compatible with the purpose for which PBGC collected the information.
18. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the proceeding and that the use is compatible with the
purpose for which PBGC collected the information.
19. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
20. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
21. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
22. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
23. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
24. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
25. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
26. To disclose information to a federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
27. To another federal agency or federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
28. To Another Agency or Non-Federal Entity in Connection with an
OIG Audit, Investigation, or Inspection: To another Federal agency or
non-Federal entity to compare such records in the agency's system of
records or to non-Federal records in coordination with the Office of
Inspector General conducting an audit, investigation, inspection, or
some other review as authorized by the Inspector General Act, as
amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form
(including computer databases or discs). Records may also be maintained
on back-up tapes, or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following: name;
social security number; unique case serial number; or other unique
identifier.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 1.2: Administrative Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR
[[Page 73219]]
4902.4, should submit a written request to the Disclosure Officer,
PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing their
name, address, date of birth, and verification of their identity in
accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
Pursuant to 5 U.S.C. 552a(k)(2), records in this system are exempt
from the requirements of subsections (c)(3), (d), (e)(1), (e)(4) (G),
(H), (I), and (f) of 5 U.S.C. 552a, provided, however, that if any
individual is denied any right, privilege, or benefit that he or she
would otherwise be entitled to by Federal law, or for which he or she
would otherwise be eligible, as a result of the maintenance of these
records, such material will be provided to the individual, except to
the extent that the disclosure of the material would reveal the
identity of a source who furnished information to the Government with
an express promise that the identity of the source would be held in
confidence.
HISTORY:
PBGC-12, Personnel Security Investigation Records (last published
at 83 FR 6262 (Feb. 13, 2018)).
SYSTEM NAME AND NUMBER:
PBGC-13: Debt Collection
SECURITY CLASSIFICATION:
Unclassified
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101 and/or plan administrator worksites, and
paying agents worksites. (Records may be kept at an additional location
as backup for continuity of operations.)
SYSTEM MANAGER(S):
Director, Financial Operations Department, PBGC, 445 12th Street
SW, Washington, DC 20024-2101.
Chief of Benefits Administration, Office of Benefits
Administration, PBGC, 445 12th Street SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 31 U.S.C. 3711(a); 44 U.S.C. 3101; 5 U.S.C. 301;
Executive Order 13019.
PURPOSE(S) OF THE SYSTEM:
This system of records is maintained for the purpose of collecting
debts owed to PBGC by various individuals, including, but not limited
to, pension plans and/or sponsors owing insurance premiums, interest
and penalties; PBGC employees and former employees; consultants and
vendors; participants, alternate payees, and beneficiaries in
retirement plans coming under the control or authority of PBGC; and
individuals who received payments from PBGC to which they are not
entitled. This system facilitates PBGC's compliance with the Debt
Collection Improvement Act of 1996.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Any individual who may owe a debt to PBGC, including but not
limited to: pension plans and/or sponsors owing insurance premiums,
interest, and penalties; employees and former employees of PBGC;
individuals who are consultants and vendors to PBGC; participants,
alternate payees, and beneficiaries in terminating and terminated
defined benefit or defined contribution plans coming under the control
or authority of PBGC; and any individual who received payments to which
they are not entitled.
CATEGORIES OF RECORDS IN THE SYSTEM:
Plan filings; names; addresses; social security numbers; taxpayer
identification numbers; employee numbers; pay records; travel vouchers
and related documents filed by PBGC employees; invoices filed by
consultants and vendors to PBGC; records of benefit payments made to
participants, alternate payees, and beneficiaries in plans covered by
ERISA; and other relevant records relating to a debt including
financial information, bank account numbers, the amount, status, and
history of the debt, and the program under which the debt arose.
RECORD SOURCE CATEGORIES:
Subject individuals; plan administrators; labor organization
officials; debt collection agencies or firms; firms or agencies
providing locator services; and other Federal agencies.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record from this system of records may be disclosed to the
United States Department of the Treasury for cross-servicing to effect
debt collection in accordance with 31 U.S.C. 3711(e).
2. Names, addresses, and telephone numbers of employees,
participants, beneficiaries, alternate payees and any other individual
owing a debt to PBGC, and information pertaining to debts owed by such
individuals to PBGC may be disclosed to a debt collection agency to
collect a claim. Disclosure to a debt collection agency or firm may be
made only under a contract that binds any such contractor or employee
of such contractor to the criminal penalties of the Privacy Act. The
information so disclosed will be used exclusively pursuant to the terms
and conditions of such contract and will be used solely for the
purposes prescribed therein. The contract must provide that the
information so disclosed will be returned at the conclusion of the debt
collection effort.
3. These records may be used to disclose information to any Federal
agency, state or local agency, tribal governments, U.S. territory or
commonwealth, or the District of Columbia, or their agents or
contractors, including private collection agencies (consumer and
commercial):
a. To facilitate the collection of debts through the use of any
combination of various debt collection methods required or authorized
by law, including, but not limited to:
i. Request for repayment by telephone or in writing;
ii. Negotiation of voluntary repayment or compromise agreements;
iii. Offset of Federal payments, which may include the disclosure
of information contained in the records for the purpose of providing
the debtor with appropriate pre-offset notice and to otherwise comply
with offset prerequisites, to facilitate voluntary repayment in lieu of
offset, and to otherwise effectuate the offset process;
iv. Referral of debts to private collection agencies, to Treasury
designated debt collection centers, or for litigation;
v. Administrative and court-ordered wage garnishment;
[[Page 73220]]
vi. Debt sales;
vii. Publication of names and identities of delinquent debtors in
the media or other appropriate news or websites; and
viii. Any other debt collection method authorized by law;
b. To collect a debt owed to the United States through the offset
of payments made by states, territories, commonwealths, tribal
governments, or the District of Columbia;
c. To account or report on the status of debts for which such
entity has a financial or other legitimate need for the information in
the performance of official duties; or
d. For any other appropriate debt collection purpose.
4. A record from this system may be disclosed to a consumer
reporting agency in accordance with 31 U.S.C. 3711(e).
5. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
6. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
7. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
8. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use is
compatible with the purpose for which PBGC collected the information.
9. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
10. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
11. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
12. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
13. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
14. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
15. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
16. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
17. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
18. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
19. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form
(including computer databases or discs). Records may also be maintained
on back-up tapes, or on a PBGC or a contractor-hosted network.
[[Page 73221]]
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following: employer
identification number; social security number; customer identification
number; plan number; recovery tracking number; name of debtor, plan,
plan sponsor, plan administrator, participant, alternate payee, or
beneficiary.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 1.2: Administrative Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-13, Debt Collection (last published at 83 FR 6264 (Feb. 13,
2018)).
SYSTEM NAME AND NUMBER:
PBGC-14: My Plan Administration Account Records.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101 and at its Oracle Service Cloud. (Records may
be kept at an additional location as backup for continuity of
operations.)
SYSTEM MANAGER(S):
Director, Financial Operations Department, PBGC, 445 12th Street
SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302, 1306, and 1343; 44 U.S.C. 3101; 5 U.S.C. 301; 44
U.S.C. 3601, et seq.
PURPOSE(S) OF THE SYSTEM:
This system of records is maintained for use in verifying the
identity of individuals who register to use the My PAA application to
make PBGC filings, and receiving, authenticating, processing, and
keeping a history of filings and premium payments submitted to PBGC by
registered users. Information from this system is used to provide the
public with contact information for plan sponsors, plan administrators,
pension practitioners, actuaries and pension benefit professionals who
submit plan information through My PAA.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Individuals who use the My Plan Administration Account (My PAA)
application to make PBGC filings and payments electronically via PBGC's
website (www.pbgc.gov), including individuals acting for plan sponsors,
plan administrators, pension practitioners, actuaries, pension benefit
professionals.
CATEGORIES OF RECORDS IN THE SYSTEM:
User name; email address and universally unique identifier (UUID)
from Login.gov for account creation and authentication, work telephone
number; work email address; other contact information; a temporary
PBGC-issued user ID and password; a user-selected user ID and password;
a secret question/secret answer combination for authentication; IP
addresses; cookies (session and persistent); financial information;
taxpayer identification number; bank information; for each pension plan
for which the user intends to participate in making filings with PBGC:
the plan name; employer identification number; plan number; the plan
administrator's name, address, phone number, email address, and other
contact information; and the role that the user will play in the filing
process, e.g., creating and editing filings, signing filings
electronically as the plan administrator, signing filings
electronically as the enrolled actuary, or authorizing payments to
PBGC.
RECORD SOURCE CATEGORIES:
Registered users; and the General Services Administration (GSA).
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. Names, addresses and phone numbers of plan sponsors, plan
administrators, pension practitioners, actuaries and pension benefit
professionals who submit plan information to My PAA may be disclosed to
the public in order to ensure the public has access to contact
information for those individuals submitting information regarding
pension plans and those responsible for the administration of pension
plans
[[Page 73222]]
covered by the Employee Retirement Income Security Act of 1974 (ERISA).
2. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
3. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use is
compatible with the purpose for which PBGC collected the information.
4. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
5. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
6. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
7. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
8. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
9. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
10. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
11. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
12. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form
(including computer databases or discs). Records may also be maintained
on back-up tapes, or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following: name;
user ID; email address; telephone number; plan name; EIN; or plan
number.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 2.1: Plan, Participant, and Insurance Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
[[Page 73223]]
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-14, My Plan Administration Account Records (last published at
83 FR 6265 (Feb. 13, 2018)).
SYSTEM NAME AND NUMBER:
PBGC-15: Emergency Notification Records.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101. (Records may be kept at an additional
location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Director, Workplace Solutions Department, PBGC, 445 12th Street SW,
Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 44 U.S.C. 3101; 5 U.S.C. 301; Executive Order
12656.
PURPOSE(S) OF THE SYSTEM:
This system of records is maintained for notifying PBGC employees,
students, interns, and contractors of PBGC's operating status in the
event of an emergency, natural disaster or other event affecting PBGC
operations; and for contacting employees, students, interns, and
contractors who are out of the office on leave or after regular duty
hours to provide information necessary for official business.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
PBGC employees, students, interns, and individuals who work for
PBGC as contractors or as employees of contractors.
CATEGORIES OF RECORDS IN THE SYSTEM:
Name; title; organizational component; employer; PBGC and personal
telephone numbers; PBGC and personal email addresses; other contact
information; user ID; a temporary PBGC-issued password; and a user-
selected password.
RECORD SOURCE CATEGORIES:
Subject individuals.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record in this system of records may be disclosed to family
members, emergency medical personnel, or to law enforcement officials
in case of a medical or other emergency involving compelling
circumstances affecting the health or safety of the subject individual
excepted by 5 U.S.C. 552a(b)(8).
2. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
3. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use is
compatible with the purpose for which PBGC collected the information.
4. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
5. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
6. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
7. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
8. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
[[Page 73224]]
9. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
10. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
11. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained in electronic form (including computer
databases or discs). Records may also be maintained on back-up tapes,
or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following: name;
organizational component; or user ID and password.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 1.2: Administrative Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-15, Emergency Notification Records (last published at 83 FR
6266 (Feb. 13, 2018)).
SYSTEM NAME AND NUMBER:
PBGC-16: PBGC Connect Search Center.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101. (Records may be kept at an additional
location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Division Manager, Information Technology Customer and Operations
Service Division, PBGC, 445 12th Street SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 44 U.S.C. 3101; 5 U.S.C. 301.
PURPOSE(S) OF THE SYSTEM:
This system of records is used by PBGC employees, interns and
contractors to identify other PBGC employees, interns and contractors;
and to access contact information for PBGC employees, interns and
contractors.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
PBGC employees and contractors with PBGC network access.
CATEGORIES OF RECORDS IN THE SYSTEM:
Name; photograph; personal description; skills; interests; schools;
birthday; mobile phone number; home phone number; organizational
component and title; supervisor's name; PBGC street address; room or
workstation number; PBGC network ID; work email address; and work
telephone number and extension.
RECORD SOURCE CATEGORIES:
Subject individuals and PBGC personnel records.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting
[[Page 73225]]
such violation or charged with enforcing or implementing the statute,
or rule, regulation, or order issued pursuant thereto, if PBGC
determines that the records are both relevant and necessary to any
enforcement, regulatory, investigative or prospective responsibility of
the receiving entity.
2. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
3. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
4. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use is
compatible with the purpose for which PBGC collected the information.
5. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
6. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
7. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
8. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
9. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
10. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
11. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
12. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
13. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
14. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
15. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained in electronic form (including computer
databases or discs). Records may also be maintained on back-up tapes,
or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following: name;
username; organizational component; job title; work phone number;
office number; supervisor; work email; skills; interests; birth date;
education; peers; and employee type (Federal or contractor).
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 1.2: Administrative Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are
[[Page 73226]]
maintained in a secure, password protected electronic system that
utilizes security hardware and software to include multiple firewalls,
active intruder detection, and role-based access controls. PBGC has
adopted appropriate administrative, technical, and physical controls in
accordance with PBGC's security program to protect the confidentiality,
integrity, and availability of the information, and to ensure that
records are not disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-16, PBGC Connect Search Center (last published at 83 FR 6267
(Feb. 13, 2018)).
SYSTEM NAME AND NUMBER:
PBGC-17: Office of Inspector General Investigative File System.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Office of Inspector General, Pension Benefit Guaranty Corporation
(PBGC), 445 12th Street SW, Washington, DC 20024-2101.
SYSTEM MANAGER(S):
Office of the Inspector General, PBGC, 445 12th Street SW,
Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
5 U.S.C. app. 3, sections 2 and 4.
PURPOSE(S) OF THE SYSTEM:
This system of records is maintained to supervise and conduct
investigations relating to programs and operations of PBGC by the
Office of the Inspector General (OIG).
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Individuals named in investigations conducted by the OIG;
complainants and subjects of complaints collected through the operation
of the OIG Hotline; other individuals, including witnesses, sources,
and members of the general public who are named individuals in
connection with investigations conducted by OIG.
CATEGORIES OF RECORDS IN THE SYSTEM:
Information within this system relates to OIG investigations
carried out under applicable statutes, regulations, policies, and
procedures. The investigations may relate to criminal, civil, or
administrative matters. These OIG files may contain investigative
reports; transcripts; internal staff memoranda; working drafts of
papers to PBGC employees; investigative plans; litigation strategies;
copies of personnel, financial, contractual, and property management
records maintained by PBGC; information submitted by or about pension
plan sponsors or plan participants; background data including arrest
records, statements of informants and witnesses, and laboratory reports
of evidence analysis; information and documentation received from other
government agencies; search warrants, summonses and subpoenas; and
other information related to investigations. Personal data in the
system may consist of names and aliases, social security numbers,
telephone and cell phone numbers, physical and mailing addresses,
electronic mailing addresses, dates of birth and death, fingerprints,
handwriting samples, reports of confidential informants, physical
identifying data, voiceprints, polygraph tests, photographs, individual
personnel and payroll information, and any other personal information
relevant to the subject matter of an OIG investigation.
RECORD SOURCE CATEGORIES:
Subject individuals; individual complainants; witnesses; interviews
conducted during investigations; Federal, state, tribal, and local
government records; individual or company records; claim and payment
files; employer medical records; insurance records; court records;
articles from publications; financial data; bank information; telephone
data; service providers; other law enforcement organizations; grantees
and sub-grantees; contractors and subcontractors; pension plan sponsors
and participants; and other sources.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b) and:
1. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal, or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
2. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
3. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official
[[Page 73227]]
capacity, an employee of PBGC in his or her individual capacity whom
PBGC (or the Department of Justice (DOJ)) has agreed to represent is a
party, or the United States or any other Federal agency is a party and
PBGC determines that it has an interest in the proceeding, and if PBGC
determines that the record is relevant and necessary to the litigation
and that the use of the record is compatible with the purpose for which
PBGC collected the information.
4. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use of the record is
compatible with the purpose for which PBGC collected the information.
5. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
6. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
7. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
8. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
9. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
10. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
11. To another federal agency or federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
12. A record relating to a person held in custody pending or during
arraignment, trial, sentence, or extradition proceedings or after
conviction may be disclosed to a Federal, state, local, tribal or
foreign prison; probation, parole, or pardon authority; or any other
agency or individual involved with the maintenance, transportation, or
release of such a person.
13. A record relating to a case or matter may be disclosed to an
actual or potential party or his or her attorney for the purpose of
negotiation or discussion on such matters as settlement of the case or
matter, plea bargaining, or informal discovery proceedings.
14. A record may be disclosed to any source, either private or
governmental, when reasonably necessary to elicit information or obtain
the cooperation of a witness or informant when conducting any official
investigation or during a trial or hearing or when preparing for a
trial or hearing.
15. A record relating to a case or matter may be disclosed to a
foreign country, through the United States Department of State or
directly to the representative of such country, under an international
treaty, convention, or executive agreement; or to the extent necessary
to assist the U.S. Department of State, law enforcement officials, and
such country in apprehending or returning a fugitive to a jurisdiction
that seeks that individual's return.
16. A record originating exclusively within this system of records
may be disclosed to other Federal offices of inspectors general and
councils comprising officials from other Federal offices of inspectors
general, as required by the Inspector General Act of 1978, as amended.
The purpose is to ensure that OIG investigative operations can be
subject to integrity and efficiency peer reviews, and to permit other
offices of inspectors general to investigate and report on allegations
of misconduct by senior OIG officials as directed by a council, the
President, or Congress. Records originating from any other PBGC systems
of records, which may be duplicated in or incorporated into this
system, also may be disclosed with all identifiable information
redacted.
17. A record may be disclosed to the Department of the Treasury and
the Department of Justice when the OIG seeks an ex parte court order to
obtain taxpayer information from the Internal Revenue Service.
18. A record may be disclosed to any governmental, professional, or
licensing authority when such record reflects on qualifications, either
moral, educational or vocational, of an individual seeking to be
licensed or to maintain a license.
19. A record may be disclosed to any direct or indirect recipient
of Federal funds, e.g., a contractor, where such record reflects
problems with the personnel working for a recipient, and disclosure of
the record is made to permit a recipient to take corrective action
beneficial to the Government.
20. A record may be disclosed where there is an indication of a
violation or a potential violation of law, rule, regulation, or order
whether civil, criminal, administrative or regulatory in nature, to the
appropriate agency, whether Federal, state, tribal or local, or to a
securities self-regulatory organization, charged with enforcing or
implementing the statute, or rule, regulation, or order.
21. A record may be disclosed to Federal, state, tribal or local
authorities in order to obtain information or records relevant to an
Office of Inspector General investigation or inquiry.
22. A record may be disclosed to a bar association, state
accountancy board, or other Federal, state, tribal, local, or foreign
licensing or oversight authority; or professional association or self-
regulatory authority to the extent that it performs similar functions
(including the Public Company Accounting Oversight Board) for
investigations or possible disciplinary action.
[[Page 73228]]
23. A record may be disclosed to inform complainants, victims, and
witnesses of the results of an investigation or inquiry.
24. A record may be disclosed to the Department of Justice for the
purpose of obtaining advice on investigatory matters or to refer
information for the purpose of prosecution.
25. A record may be disclosed to contractors, interns and experts
who have been engaged to assist in an OIG investigation or in the
performance of a service related to this system of records and require
access to these records for the purpose of assisting the OIG in the
efficient administration of its duties. All recipients of these records
will be required to comply with the requirements of the Privacy Act of
1974, as amended.
26. A record may be disclosed to the public when the matter under
investigation has become public knowledge, or when the Inspector
General determines that such disclosure is necessary to preserve
confidence in the integrity of the OIG investigative process, to
demonstrate the accountability of PBGC employees, or other individuals
covered by this system, or when there exists a legitimate public
interest, unless the Inspector General has determined that disclosure
of specific information would constitute an unwarranted invasion of
personal privacy.
27. A record to compare such records in other Federal agencies'
systems of records or to non-Federal records.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form
(including computer databases or discs). Records may also be maintained
on back-up tapes, or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records may be retrieved by any one or more of the following: name;
social security number; subject category; or assigned case number.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. See General Record Schedule 4.2 Inspector
General Item: 080. Records existing on paper are destroyed beyond
recognition.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
This system is exempt from the notification and record access
requirements. However, consideration will be given to requests made in
compliance with 29 CFR 4902.3 and 4902.4.
CONTESTING RECORD PROCEDURES:
This system is exempt from amendment requirements. However,
consideration will be given to requests made in compliance with 29 CFR
4902.3 and 4902.5.
NOTIFICATION PROCEDURES:
This system is exempt from the notification requirements. However,
consideration will be given to inquiries made in compliance with 29 CFR
4902.3.
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
Pursuant to 5 U.S.C. 552a(j) and (k), PBGC has established
regulations at 29 CFR 4902.11 that exempt records in this system
depending on their purpose.
HISTORY:
PBGC-17, Inspector General Investigative File System (last
published at 89 FR 3436 (Jan. 18, 2024)).
SYSTEM NAME AND NUMBER:
PBGC-19: Office of Negotiations and Restructuring/Office of General
Counsel Case Management System.
SECURITY CLASSIFICATION:
Unclassified
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101 (Records may be kept at an additional
location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Office of the General Counsel (OGC), PBGC, 445 12th Street SW,
Washington, DC 20024-2101.
Office of Negotiations and Restructuring (ONR), PBGC, 445 12th
Street SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1055, 1056(d)(3), 1302, 1303, 1310, 1321, 1322a, 1341,
1342, 1343, 1350; 1431, and 1432; 5 U.S.C. app. 105; 5 U.S.C. 301,
552(a), 552a(d), 7101; 42 U.S.C. 2000e, et seq.; 44 U.S.C. 3101.
PURPOSE(S) OF THE SYSTEM:
The purpose of this system of records is to catalog, litigate,
review or otherwise resolve any case or matter handled by the ONR or
the OGC.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Individuals who are participants, beneficiaries, and alternate
payees in pension plans covered by the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. 1301, et seq.; pension plan
sponsors, administrators, control group members and third parties, who
are responsible for, manage, or have control over ERISA pension plans;
other individuals who are identified in connection with investigations
conducted pursuant to 29 U.S.C. 1303 or litigation conducted with
regard to ERISA pension plans; individuals (including PBGC employees)
who are parties or witnesses in civil litigation or administrative
proceedings involving or concerning PBGC or its officers or employees;
individuals who are the subject of a breach of personally identifiable
information; individuals who are potential contractors or contractors
with PBGC or are otherwise personally associated with a contract or
procurement matter; individuals who receive legal advice from OGC; and
other individuals (including current, former, and potential PBGC
employees, contract employees, interns, and externs) who are the
subject of or are otherwise connected to an inquiry, investigation,
other matter handled by the OGC.
CATEGORIES OF RECORDS IN THE SYSTEM:
Draft and final versions of notes, reports, memoranda; settlements;
legal opinions; agreements; correspondence; contracts; contract
proposals and other
[[Page 73229]]
procurement documents; plan documents; participant, alternate payee,
and beneficiary files; initial and final PBGC determinations of ERISA
matters; Freedom of Information Act (FOIA) and the Privacy Act of 1974
disclosures, determinations, appeals and decisions of those appeals;
records and information obtained from other Federal, state, tribal, and
local agencies and departments, including, but not limited to: Office
of Personnel Management, Social Security Administration, Department of
Treasury and Department of Justice; drafts and legal reviews of
proposed personnel actions; ethics inquiries; personnel records;
financial records; individual tax returns; litigation files; labor
relations files; information provided by labor unions or other
organizations; witness statements; summonses, subpoenas, discovery
requests and responses; breach reports and supporting documentation;
and universally unique identifier (UUID), name, and email address from
Login.gov for account creation and authentication.
RECORD SOURCE CATEGORIES:
Subject individuals; pension plan participants, sponsors,
administrators and third parties; Federal government records; current
and former employees, contractors, interns, and externs; PBGC debt and
disbursement records; insurers; the Social Security Administration; the
General Services Administration; labor organizations; court records;
articles from publications; and other individuals, organizations, and
corporate entities with relevant knowledge/information.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record from this system of records may be disclosed, in
furtherance of proceedings under Title IV of ERISA, to a contributing
sponsor (or other employer who maintained the plan), including any
predecessor or successor, and any member of the same control group.
2. Names, addresses, and telephone numbers of employees, former
employees, participants, and beneficiaries and information pertaining
to debts to PBGC may be disclosed to the Department of Treasury, the
Department of Justice, a credit agency, and a debt collection to
collect the debt. Disclosure to a debt collection may be made only
under a contract that binds any such contractor or employee of such
contractor to criminal penalties of the Privacy Act.
3. Information may be disclosed to a court, magistrate, or
administrative tribunal in the course of presenting evidence, including
disclosures to opposing counsel or witnesses in the course of civil
discovery, litigation, or settlement negotiations in response to a
court order or in connection with criminal law proceedings.
4. Information may be provided to a congressional office in
response to an inquiry made at the request of the individual to whom
the record pertains.
5. Information may be provided to third parties during the course
of an investigation to the extent necessary to obtain information
pertinent to the investigation.
6. Relevant and necessary information may be disclosed to a former
employee of PBGC for the purposes of: (1) responding to an official
inquiry by Federal, state, tribal or local government entity or
professional licensing authority; or (2) facilitating communications
with a former employee that may be necessary for personnel-related or
other official purposes where PBGC requires information and/or
consultation assistance from the former employee regarding a matter
within that person's former area of responsibility.
7. A record relating to a case or matter may be disseminated to a
foreign country pursuant to an international treaty or convention
entered into and ratified by the United States or to an executive
agreement.
8. A record may be disseminated to a foreign country, through the
United States Department of State or directly to the representative of
such country, to the extent necessary to assist such country in civil
or criminal proceedings in which the United States or one of its
officers or agencies has an interest.
9. A record from this system of records may be disclosed to the
National Archives and Records Administration (NARA), Office of
Government Information Services (OGIS), to the extent necessary to
fulfill its responsibilities in 5 U.S.C. 552(h), to review
administrative agency policies, procedures and compliance with the
FOIA, and to facilitate use of OGIS' mediation services.
10. A record from this system may be disclosed to a consumer
reporting agency in accordance with 31 U.S.C. 3711(e).
11. A record from this system of records may be disclosed under a
Memorandum of Understanding or an Interagency Agreement to: (1) the
Department of Treasury (USDT) or (2) the Department of Labor's Employee
Benefits Security Administration (EBSA) to facilitate an investigation
or inquiry relating to a multiemployer plan's compliance with
applicable provisions under ERISA or the Internal Revenue Code,
including the special financial assistance program created by the
American Rescue Plan (ARP) Act of 2021 (P.L. 117-2).
12. A record from this system may be disclosed to law enforcement
in the event the record is connected to a violation or potential
violation of law, whether civil, criminal or regulatory in nature, and
whether arising by general statute, regulation, rule, or order issued
pursuant thereto. Such disclosure may be made to the appropriate
agency, whether Federal, state, local, or tribal, or other public
authority responsible for enforcing, investigating or prosecuting such
violation or charged with enforcing or implementing the statute, or
rule, regulation, or order issued pursuant thereto, if PBGC determines
that the records are both relevant and necessary to any enforcement,
regulatory, investigative or prospective responsibility of the
receiving entity.
13. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
14. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
15. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use is
compatible
[[Page 73230]]
with the purpose for which PBGC collected the information.
16. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
17. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
18. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
19. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
20. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
21. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
22. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
23. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
24. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
25. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
26. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form
(including computer databases or discs). Records may also be maintained
on back-up tapes, or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are indexed by assigned case number and sequential record
identifier. Records are full-text indexed and information from this
system may be retrieved using any free-form key, which may include
names, social security number, address, representative or any other
personal identifiers. For certain systems, only individuals assigned to
the particular matter may retrieve associated records.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 1.8: Legal Administrative Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals. Paper records are
kept in file folders in areas of restricted access that are locked
after office hours.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically. Further, for
certain systems covered by this notice, heightened security access is
required. Such access is granted by the specific permissions group
assigned to monitor that particular system and only authorized
employees of the agency may retrieve, review or modify those records.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
[[Page 73231]]
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
Pursuant to 5 U.S.C. 552a(k)(2), records in this system are exempt
from the requirements of subsections (c)(3), (d), (e)(1), (e)(4) (G),
(H), (I), and (f) of 5 U.S.C. 552a, provided, however, that if any
individual is denied any right, privilege, or benefit that he or she
would otherwise be entitled to by Federal law, or for which he or she
would otherwise be eligible, as a result of the maintenance of these
records, such material will be provided to the individual, except to
the extent that the disclosure of the material would reveal the
identity of a source who furnished information to the Government with
an express promise that the identity of the source would be held in
confidence.
HISTORY:
PBGC-19, Office of General Counsel Case Management System (last
published at 86 FR 49061 (Sep. 01, 2021)).
SYSTEM NAME AND NUMBER:
PBGC-21: Reasonable Accommodation Records.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation, 445 12th Street SW,
Washington, DC 20024-2101. (Records may be kept at an additional
location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Reasonable Accommodations Coordinator, Human Resources Department,
PBGC, 445 12th Street SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 44 U.S.C. 3101; 5 U.S.C. 301; 29 U.S.C. 701 et
seq.; 29 U.S.C. 791; 42 U.S.C. 12101 et seq.; 42 U.S.C. 2000e et seq.;
42 U.S.C. 2000bb; 42 U.S.C. Ch. 21, 126; 29 CFR parts 1605, 1614, 1630;
Executive Order 13164 (July 26, 2000); and Executive Order 13548 (July
26, 2010).
PURPOSE(S) OF THE SYSTEM:
The purposes of this system are: (1) to allow PBGC to collect and
maintain records on prospective, current, and former employees with
disabilities or sincerely held religious beliefs, practices, or
observances who requested or received reasonable accommodation by PBGC;
(2) to track and report the processing of requests for reasonable
accommodation PBGC-wide to comply with applicable law and regulations;
and (3) to maintain the confidentiality of medical or religious
information submitted by or on behalf of applicants or employees
requesting reasonable accommodation.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Prospective, current, and former employees of PBGC who request and/
or receive a reasonable accommodation for a disability or religious
belief, practice, or observance authorized individuals or
representatives (e.g., family members, union representatives, or
attorneys) who submit a request for a reasonable accommodation on
behalf of a prospective, current, or former employee.
CATEGORIES OF RECORDS IN THE SYSTEM:
Name and employment information of current or prospective employee
needing an accommodation; requester's name and contact information (if
different than the employee who needs an accommodation); date request
was initiated; information concerning the nature of the disability or
religious belief, practice, or observance and the need for
accommodation, including appropriate medical or other documentation;
occupational series; pay grade; essential duties of the position;
details of the accommodation request, such as: type of accommodation
requested, how the requested accommodation would assist in job or allow
job performance while accommodating the disability or religious belief,
practice, or observance, the sources of technical assistance consulted
in trying to identify alternative reasonable accommodation, any
additional information provided by the requester relating to the
processing of the request, whether the request was approved or denied,
whether the accommodation was approved for a trial period; and,
documentation between the employee and his/her supervisor(s) regarding
the accommodation.
RECORD SOURCE CATEGORIES:
Subject individuals; individual making the request (if different
than the subject individuals); medical and equal employment opportunity
professionals; and the subject individuals' supervisor(s).
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record from this system may be disclosed to physicians or
other medical professionals to provide them with or obtain from them
the necessary medical documentation and/or certification for reasonable
accommodation.
2. A record from this system may be disclosed to another federal
agency or commission with responsibility for labor or employment
relations or other issues, including equal employment opportunity and
reasonable accommodation issues, when that agency or commission has
jurisdiction over reasonable accommodation issues.
3. A record from this system may be disclosed to the Office of
Management and Budget (OMB), Department of Labor (DOL), Office of
Personnel Management (OPM), Equal Employment Opportunity Commission
(EEOC), or Office of Special Counsel (OSC) to obtain advice regarding
statutory, regulatory, policy, and other requirements related to
reasonable accommodation.
4. A record from this system may be disclosed to appropriate third-
parties contracted by the Agency to facilitate mediation or other
dispute resolution procedures or programs.
5. A record from this system may be disclosed to the Department of
Defense (DOD) for purposes of procuring assistive technologies and
services through the Computer/Electronic Accommodation Program in
response to a request for reasonable accommodation.
6. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law,
[[Page 73232]]
whether civil, criminal or regulatory in nature, and whether arising by
general statute, regulation, rule, or order issued pursuant thereto.
Such disclosure may be made to the appropriate agency, whether Federal,
state, local, or tribal, or other public authority responsible for
enforcing, investigating or prosecuting such violation or charged with
enforcing or implementing the statute, or rule, regulation, or order
issued pursuant thereto, if PBGC determines that the records are both
relevant and necessary to any enforcement, regulatory, investigative or
prospective responsibility of the receiving entity.
7. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
8. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
9. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use is
compatible with the purpose for which PBGC collected the information.
10. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
11. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
12. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
13. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
14. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
15. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
16. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
17. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
18. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
19. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
20. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form
(including computer databases or discs). Records may also be maintained
on back-up tapes, or on a PBGC or a contractor- hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following: employee
name or assigned case number.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to
[[Page 73233]]
include multiple firewalls, active intruder detection, and role-based
access controls. PBGC has adopted appropriate administrative,
technical, and physical controls in accordance with PBGC's security
program to protect the confidentiality, integrity, and availability of
the information, and to ensure that records are not disclosed to or
accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4 or to amend records pertaining to themselves in
accordance with 29 CFR 4902.5, should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend, in accordance with 29 CFR 4902.5, their
records must submit a written request identifying the information they
wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-21, Reasonable Accommodation Records (last published at 86 FR
63426 (Nov. 16, 2021)).
SYSTEM NAME AND NUMBER:
PBGC-22: Remote Work, Telework, and Alternative Worksite Records.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101. (Records may be kept at an additional
location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Remote Work and Telework Managing Officers, Human Resources
Department, PBGC, 445 12th Street SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 44 U.S.C. 3101; 5 U.S.C. 301; 5 U.S.C. 6120.
PURPOSE(S) OF THE SYSTEM:
The purpose of this system of records is to collect and maintain
records on current and former employees who have participated in,
presently participate in, or have sought to participate in PBGC's
Remote Work or Telework Programs.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Current and former employees of PBGC who have requested to
participate in PBGC's Remote Work or Telework Programs in order to work
at an alternative worksite other than their official PBGC duty station
and physicians who certify eligibility for medical telework.
CATEGORIES OF RECORDS IN THE SYSTEM:
Name, position title, grade, series, and department name; official
PBGC duty station address and telephone number; alternative worksite
address and telephone number(s); date telework agreement received and
approved/denied; telework agreement, self-certification home safety
checklist, and supervisor-employee checklist; type of telework
requested (e.g., medical, episodic, or regular); regular work schedule;
remote work or telework schedule; approvals/disapprovals; mass transit
benefits received through PBGC's mass transit subsidy program;
physician certification for medical telework; and any other
miscellaneous documents supporting telework.
RECORD SOURCE CATEGORIES:
Subject individuals; subject individuals' supervisors; and
physicians.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record from this system may be disclosed to Federal, state,
tribal or local governments during actual emergencies, exercises, or
continuity of operations tests for the purposes of emergency
preparedness and responding to emergency situations.
2. A record from this system may be disclosed to the Department of
Labor when an employee is injured when working at home while in the
performance of normal duties.
3. A record from this system may be disclosed to the Office of
Personnel Management (OPM) for use in its Telework Survey to provide
consolidated data on participation in PBGC's Telework Program.
4. A record from this system of records may be disclosed to
appropriate third parties contracted by the agency to facilitate
mediation or other dispute resolution procedures or programs.
5. A record from this system may be disclosed to the PBGC
Information Technology Infrastructure Operations Department (ITIOD)
when necessary for the shipping of Government-owned IT equipment to an
employee's approved alternative work location.
6. A record from this system may be disclosed to the PBGC Workplace
Solutions Department (WSD) when necessary to account for office
furniture loaned to an employee for use at their approved alternate
work location.
7. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
8. A record from this system of records may be disclosed to a
federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other
[[Page 73234]]
pertinent information if, and to the extent necessary, to obtain
information relevant to a PBGC decision concerning the hiring or
retention of an employee, the retention of a security clearance, or the
letting of a contract.
9. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that federal agency.
10. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the proceeding and that the use is
compatible with the purpose for which PBGC collected the information.
11. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the proceeding and that the use is compatible with the
purpose for which PBGC collected the information.
12. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
13. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
14. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
15. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
16. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
17. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
18. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
19. To disclose information to a federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
20. To another federal agency or federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
21. To Another Agency or Non-Federal Entity in Connection with an
OIG Audit, Investigation, or Inspection: To another Federal agency or
non-Federal entity to compare such records in the agency's system of
records or to non-Federal records in coordination with the Office of
Inspector General conducting an audit, investigation, inspection, or
some other review as authorized by the Inspector General Act, as
amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form
(including computer databases). Records may also be maintained on back-
up tapes, or on a PBGC or a contractor-hosted network. Also, each of
PBGC's departments has a Remote Work or Telework Liaison who may
maintain copies of the records pertaining to employees working in his
or her department.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records may be retrieved by any one or more of the following:
employee name, and the department in which the employee works, will
work, or previously worked.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 1.2: Administrative Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect
[[Page 73235]]
the confidentiality, integrity, and availability of the information,
and to ensure that records are not disclosed to or accessed by
unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-22, Telework and Alternative Worksite Records (last published
at 83 FR 6272 (Feb. 13, 2018)).
SYSTEM NAME AND NUMBER:
PBGC-23: Internal Inquiries of Allegations of Harassing Conduct.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101. (Records may be kept at an additional
location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Director, Human Resources Department, PBGC, 445 12th Street SW,
Washington, DC 20024-2101.
Director, Office of General Counsel's General Law and Operations
Department, 445 12th Street SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 44 U.S.C. 3101; 5 U.S.C. 301; 42 U.S.C. 2000e, et
seq.
PURPOSE(S) OF THE SYSTEM:
This system of records is maintained for the purpose of upholding
PBGC's policy to prevent and eradicate harassing conduct in the
workplace, including conducting and resolving internal inquiries of
allegations of harassing conduct brought by or against PBGC employees,
contractors, or interns.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Current or former PBGC employees, contractors, and interns who have
made a report of harassment, or have been accused of harassing conduct.
CATEGORIES OF RECORDS IN THE SYSTEM:
The system contains all documents related to a report of
harassment, which may include the name, position, grade, and
supervisor(s) of the complainant and the accused; the Harassment
Inquiry Committee intake form; statements of witnesses; reports of
interviews; medical records; final decisions and corrective actions
taken; and related correspondence and exhibits.
RECORD SOURCE CATEGORIES:
PBGC employees, contractors, and others with knowledge; outside
counsel; and medical professionals.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. Disclosure of information from this system of records regarding
the status of any inquiry that may have been conducted may be made to
the complaining party and to the individual against whom the complaint
was made when the purpose of the disclosure is both relevant and
necessary and is compatible with the purpose for which the information
was collected.
2. Disclosure of information from this system of records may be
made to the PBGC Office of Equal Employment Opportunity or the PBGC
Office of the Inspector General when related to investigations under
their jurisdiction.
3. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
4. A record from this system of records may be disclosed to a
federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
5. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that federal agency.
6. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the proceeding and that the use is
compatible with the purpose for which PBGC collected the information.
7. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her
[[Page 73236]]
individual capacity whom PBGC (or DOJ) has agreed to represent is a
party to a proceeding before a court or other adjudicative body, or the
United States or any other federal agency is a party and PBGC
determines that it has an interest in the proceeding, a record from
this system of records may be disclosed to DOJ if PBGC is consulting
with DOJ regarding the proceeding or has decided that DOJ will
represent PBGC, or its interest, in the proceeding and PBGC determines
that the record is relevant and necessary to the proceeding and that
the use is compatible with the purpose for which PBGC collected the
information.
8. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
9. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
10. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
11. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
12. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
13. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
14. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
15. To disclose information to a federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
16. To another federal agency or federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
17. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form
(including computer databases or discs). Records may also be maintained
on back-up tapes, or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following: name;
department; or unique identifier assigned to each incident reported.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 1.2: Administrative Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Paper records are kept in cabinets in areas of restricted access
that are locked after office hours. Electronic records are stored on
computer networks, which may include cloud-based systems, and protected
by controlled access with Personal Identity Verification (PIV) cards,
assigning user accounts to individuals needing access to the records
and by passwords set by authorized users that must be changed
periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether
[[Page 73237]]
this system of records contains information about them should submit a
written request to the Disclosure Officer, PBGC, 445 12th Street SW,
Washington, DC 20024-2101, providing their name, address, date of
birth, and verification of their identity in accordance with 29 CFR
4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-23, Internal Investigations of Allegations of Harassing
Conduct (last published at 83 FR 6273 (Feb. 13, 2018)).
SYSTEM NAME AND NUMBER:
PBGC-25: Comment Management System.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101. (Records may be kept at an additional
location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Director, Office of General Counsel's Program Law and Policy
Department, PBGC, 445 12th Street SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302; 44 U.S.C. 3101; 44 U.S.C. Ch 36; 5 U.S.C. 301.
PURPOSE(S) OF THE SYSTEM:
The information in this system is maintained to: provide a central
location to search, view, download and comment on Federal rulemaking
documents; respond to the public's comments; track regulatory feedback;
and retain commenter information in order to respond to the public.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Any individual commenting on PBGC's rulemaking activities or
submitting supporting materials; any individual initiating contact with
PBGC through use of the agency website.
CATEGORIES OF RECORDS IN THE SYSTEM:
Comments and supporting documentation from the public; agency
rulemaking materials; Federal Register publications; scientific and
financial studies; cookies (session and persistent); and internet
protocol (IP) addresses.
RECORD SOURCE CATEGORIES:
Individuals commenting on agency rulemaking; individuals contacting
PBGC via the agency website.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. Information, including personally identifiable information
(PII), contained in comments about agency rulemaking, whether submitted
through pbgc.gov or regulations.gov, may be published to the PBGC
website.
2. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
3. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
4. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
5. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use is
compatible with the purpose for which PBGC collected the information.
6. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
7. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
8. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
9. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
10. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm
11. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided
[[Page 73238]]
information under this routine use are subject to the same Privacy Act
requirements and limitations on disclosure as are applicable to PBGC
employees.
12. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
13. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
14. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
15. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
16. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained in electronic form (including computer
databases or discs). Records may also be maintained on back-up tapes,
or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Information from this system may be retrieved by numerous data
elements and key word searches, including, but not limited to name,
dates, subject, and other information retrievable with full-text
searching capability.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule Item 1.2: Administrative Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-25, PBGC.GOV Comment Management System (last published at 83
FR 6274 (Feb. 13, 2018)).
SYSTEM NAME AND NUMBER:
PBGC-26: PBGC Insider Threat and Data Loss Prevention.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101. (Records may be kept at an additional
location as backup for continuity of operations.)
SYSTEM MANAGER(S):
Chief Information Officer, Office of Information Technology, PBGC,
445 12th Street SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1302(b)(3); 5 U.S.C. 301; 44 U.S.C. 3101; 44 U.S.C. 3554;
Executive Order 13587, Structural Reforms To Improve the Security of
Classified Networks and the Responsible Sharing and Safeguarding of
Classified Information (Oct. 7, 2011); Presidential Memorandum--
National Insider Threat Policy and Minimum Standards for Executive
Branch Insider Threat Programs (Nov. 21, 2012); Executive Orders 13488
and 13467, as amended by 13764, To Modernize the Executive Branch-Wide
Governance Structure and Processes for Security Clearances, Suitability
and Fitness for Employment, and Credentialing, and Related Matters;
Executive Order 3356, Controlled Unclassified Information (Nov. 4,
2010); 5 CFR 731; 5 CFR 302; OMB Circular A-130 (July 28, 2016);
National Institute of Standards and Technology Special Publication 800-
53.
[[Page 73239]]
PURPOSE(S) OF THE SYSTEM:
The purpose of the system is to detect anomalous behavior by PBGC
insiders and, as warranted, gather information from sources or existing
PBGC systems of records to support an investigation of the incident.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
The categories of individuals covered by this system are PBGC
insiders, defined as any person with authorized access to any PBGC
resource including facilities, information, equipment, networks, or
systems.
CATEGORIES OF RECORDS IN THE SYSTEM:
A. The system will contain these categories of records:
Information collected through user activity monitoring, including
keystrokes, screen captures, and content transmitted via email, chat,
or data import or export.
Reports of investigation regarding security violations and privacy
breaches, including incident reports; usernames and aliases, levels of
network access, audit data, information regarding misuse of PBGC
devices, information regarding unauthorized use of removable media, and
logs of printer, copier, and facsimile machine use.
Records relating to the management and operation of PBGC personnel
and physical security, including information relating to continued
eligibility for access to PBGC facilities, information, and information
systems.
Information identifying threats to PBGC personnel, property,
facilities, and information; information obtained from the Department
of Justice, the Federal Bureau of Investigation, or from other agencies
or organizations about individuals known or suspected of being engaged
in conduct constituting, preparing for, aiding, or relating to an
insider threat, including, including but not limited to, espionage or
unauthorized disclosure of personally identifiable information (PII).
B. The system may include these categories of records:
Publicly available information, such as information regarding:
Arrests and detentions; real property; bankruptcy; liens or holds on
property; vehicles; licensure (including professional and pilot's
licenses, firearms and explosive permits); business licenses and
filings; and from social media.
Reports furnished to PBGC, or collected by PBGC, in connection with
personnel security investigations and Insider Threat Detection Program
operated by PBGC pursuant to Federal laws and Executive Orders, rules,
regulations, guidance, and PBGC policies.
Documentation pertaining to investigative or analytical efforts by
PBGC Insider Threat Program Personnel to identify threats to PBGC
personnel, property, facilities, and information.
Intelligence reports and database query results relating to
individuals covered by this system.
RECORD SOURCE CATEGORIES:
To monitor for, identify, and respond to potential insider threats,
information in the system will be received on an as-needed basis from
PBGC employees, contractors, vendors, interns, and detailees; officials
from other foreign, Federal, tribal, state, and local government
agencies and organizations; non-government, commercial, public, and
private agencies and organizations; complainants, informants, suspects,
and witnesses; and from relevant records, including counterintelligence
and security databases and files; personnel security databases and
files; PBGC human resources databases and files; PBGC contractor files;
PBGC's Office of Information Technology; information collected through
user activity monitoring; PBGC telephone usage records; Federal, state,
tribal, territorial, and local law enforcement and investigatory
records; Inspector General records; available U.S. Government
intelligence and counterintelligence reporting information and analytic
products pertaining to adversarial threats; other Federal agencies; and
publicly available information.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. Records may be disclosed to any person, organization, or
governmental entity in order to notify them of a serious threat for the
purpose of guarding against or responding to the threat.
2. Records may be disclosed to a Federal, state, or local agency,
or other appropriate entities or individuals, or through established
liaison channels to selected foreign governments, in order to enable
the intelligence agency with the relevant authority and responsibility
for the matter to carry out its responsibilities under the National
Security Act of 1947 as amended, the CIA act of 1949 as emended,
Executive Order 12333 or any successor order, applicable national
security directives, or classified implementing procedures approved by
the Attorney General and promulgated pursuant to such statutes, orders
or directives.
3. Records may be disclosed to the U.S. Department of Homeland
Security (DHS) if captured in an intrusion detection system used by
PBGC and DHS pursuant to a DHS cybersecurity program that monitors
internet traffic to and from Federal government computer networks to
prevent a variety of types of cybersecurity incidents.
4. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
5. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
6. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
7. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the
[[Page 73240]]
litigation and that the use is compatible with the purpose for which
PBGC collected the information.
8. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
9. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
10. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
11. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
12. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
13. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
14. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
15. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
16. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
17. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
18. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained in electronic form (including computer
databases or discs). Records may also be maintained on back-up tapes,
or on a PBGC or a contractor-hosted network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Information from this system may be retrieved by numerous data
elements and key word searches, including, but not limited to name,
dates, subject, and other information retrievable with full text
searching capability.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
The records in this system of records are covered by National
Archives and Records Administration General Records Schedule 5.6, items
210, 220, 230, and 240.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer,
[[Page 73241]]
PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing their
name, address, date of birth, and verification of their identity in
accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
Pursuant to 5 U.S.C. 552a(k)(2), PBGC has established regulations
at 29 CFR 4902.12 that exempt records in this system depending on their
purpose.
HISTORY:
PBGC-26, PBGC Insider Threat and Data Loss Prevention (last
published at 84 FR 32786 (Jul. 9, 2019)).
SYSTEM NAME AND NUMBER:
PBGC-27: Ensuring Workplace Health and Safety in Response to a
Public Health Emergency.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
PBGC, 445 12th Street SW, Washington, DC 20024-2101 (Records may be
kept at an additional location as backup for Continuity of Operations).
SYSTEM MANAGER(S):
Workplace Solutions Department/Emergency Management, PBGC, 445 12th
Street SW, Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
General Duty Clause, Section 5(a)(1) of the Occupational Safety and
Health (OSH) Act of 1970 (29 U.S.C. 627), Executive Order 12196,
Occupational safety and health programs for Federal employees (Feb. 26,
1980)Executive Order 14043, Requiring Coronavirus Disease 2019
Vaccination for Federal Employees (Sep. 14, 2021), Executive Order
14042, Executive Order on Ensuring Adequate COVID Safety Protocols for
Federal Contractors (Sep. 9, 2021), and the National Defense
Authorization Act For Fiscal Year 2017 (5 U.S.C. 6329c(b)). Information
will be collected and maintained in accordance with the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.)
PURPOSE(S) OF THE SYSTEM:
The information in the system is collected to assist PBGC with
maintaining a safe and healthy workplace and to protect PBGC staff
working on-site from risks associated with a public health emergency
(as defined by the U.S. Department of Health and Human Services and
declared by its Secretary), such as a pandemic or epidemic.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Individuals covered by this system include PBGC staff (e.g.,
political appointees, employees, detailees, contractors, consultants,
interns, and volunteers) and visitors to a PBGC facility during a
public health emergency, such as a pandemic or epidemic.
CATEGORIES OF RECORDS IN THE SYSTEM:
This system maintains information collected about PBGC staff and
visitors accessing PBGC facilities during a public health emergency,
including a pandemic or epidemic. It maintains biographical information
collected about PBGC staff and visitors that includes, but is not
limited to, their name, contact information, or whether they are in a
high-risk category. It maintains health information collected about
PBGC staff that includes, but is not limited to, temperature checks,
test results, dates, symptoms, and potential or actual exposure to a
pathogen. It maintains health information collected about building
visitors, that includes, but is not limited to, temperature checks,
test results, dates, symptoms, and potential or actual exposure to a
pathogen. It maintains information collected about PBGC staff and
visitors to a PBGC facility necessary to conduct contact tracing that
includes, but is not limited to, the dates when they visited the
facility, the locations that they visited within the facility (e.g.,
office and cubicle number), the duration of time spent in the facility,
whether they may have potentially come into contact with a contagious
person while visiting the facility, travel dates and locations, and a
preferred contact number. It maintains information about emergency
contacts for PBGC staff that includes, but is not limited to, the
emergency contact's name, phone number, and email address.
RECORD SOURCE CATEGORIES:
The information in this system is collected in part directly from
the individual or from the individual's emergency contact. Information
is also collected from human resources systems, emergency notification
systems, and Federal, state, and local agencies assisting with the
response to a public health emergency. Information may also be
collected from property management companies responsible for managing
office buildings that house PBGC facilities including security systems
monitoring access to PBGC facilities, video surveillance, and access
control devices.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. To a Federal, state, or local agency to the extent necessary to
comply with laws governing reporting of infectious disease;
2. To PBGC staff member's emergency contact for purposes of
locating a staff member during a public health emergency;
3. To federal contractors performing physical security and/or
access control duties at PBGC facilities.
4. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
5. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
6. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
7. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has
[[Page 73242]]
agreed to represent is a party, or the United States or any other
Federal agency is a party and PBGC determines that it has an interest
in the proceeding, and if PBGC determines that the record is relevant
and necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
8. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
9. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
10. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
11. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
12. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
13. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
14. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
15. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
16. To disclose information to a Federal agency, in response to its
request, in connection with hiring or retaining an employee, issuing a
security clearance, conducting a security or suitability investigation
of an individual, or classifying jobs, to the extent that the
information is relevant and necessary to the requesting agency's
decision on the matter.
17. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
18. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form,
including computer databases, magnetic tapes, and discs. Records are
also maintained on PBGC's secure network and back-up tapes.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by the name of the individual.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained in accordance with the General Records
Retention Schedules issued by the National Archives and Records
Administration (NARA) or a PBGC records disposition schedule approved
by NARA. Records existing on paper are destroyed beyond recognition.
Records existing on computer storage media are destroyed according to
the applicable PBGC media practice Records of emergency contacts for
PBGC staff will be maintained in accordance with General Records
Schedule 5.3, Items 010: Continuity planning and related emergency
planning files; and 020: Employee Emergency Contact Information, which
requires that the records be destroyed when superseded or obsolete, or
upon separation or transfer of employee. PBGC will work with the
National Archives and Records Administration (NARA) to draft and secure
approval of a records disposition schedule to cover the remainder of
the records described in this SORN. Until this records disposition
schedule is approved by NARA, PBGC will maintain, and not destroy,
these records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has adopted appropriate administrative, technical, and
physical controls in accordance with PBGC's security program to protect
the security, integrity, and availability of the information, and to
ensure that records are not disclosed to or accessed by unauthorized
individuals.
Paper records are kept in file cabinets in areas of restricted
access that are locked after office hours. Electronic records are
stored on computer networks and protected by assigning user
identification numbers to individuals needing access to the records and
by passwords set by authorized users that must be changed periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
[[Page 73243]]
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-27, Ensuring Workplace Health and Safety in Response to a
Public Health Emergency (last published at 87 FR 4668 (Jan. 28,2022)).
SYSTEM NAME AND NUMBER:
PBGC-28: Physical Security and Facility Access.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101.
SYSTEM MANAGER(S):
Director, Workplace Solutions Department, PBGC, 445 12th Street SW,
Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
Executive Order 12977; 6 CFR part 37; Homeland Security
Presidential Directive (HSPD) 12: Policy for a Common Identification
Standard for Federal Employees and Contractors.
PURPOSE(S) OF THE SYSTEM:
The purpose of this system is to maintain information to allow PBGC
to provide for its facilities: control of visitor, employee, and
government contractor access; physical and operational security; and
video surveillance. It can also be used to maintain information from
issuing temporary facility access for employees and contractors who are
not in possession of their Personal Identity Verification (PIV) card or
office key.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Current PBGC employees, students, interns, government contractors,
employees of other agencies, vendors, and other authorized visitors who
access PBGC facilities.
CATEGORIES OF RECORDS IN THE SYSTEM:
This system contains records relating to employee and government
contractor access, visitor access, and facility security. This includes
government Personal Identity Verification (PIV) cards, visitor,
contractor, and employee access records, temporary access cards,
biometric data, and video surveillance recordings. PIV card records
include the following information: name, photo, type of access,
employee affiliation, expiration date, activation date, credential
serial number to include the full Card Holder Unique Identifier
(CHUID), height, eye color, and hair color. Visitor access records
include the following information: name, phone number, email address,
digital photo, scan of government-issued photo identification, reason
for visit, organization name, date and time of visit, floor visited,
and temporary visitor badge number or barcode. Employee access records
include date and time of room or facility access and fingerprint or
other biometric data.
RECORD SOURCE CATEGORIES:
Subject individuals, employees, visitors, contractors, vendors, and
others visiting PBGC facilities.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
2. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
3. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
4. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use of the
record is compatible with the purpose for which PBGC collected the
information.
5. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use of the record is
compatible with the purpose for which PBGC collected the information.
6. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
7. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
[[Page 73244]]
8. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
9. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
10. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
11. To any source from which information is requested in the course
of processing a grievance, investigation, arbitration, or other
litigation, to the extent necessary to identify the individual, inform
the source of the purpose(s) of the request, and identify the type of
information requested.
12. Records from this system may be disclosed to a third party for
purposes of providing access to facilities leased by PBGC or on PBGC's
behalf.
13. To another Federal agency or non-Federal entity to compare such
records in the agency's system of records or to non-Federal records in
coordination with the Office of Inspector General conducting an audit,
investigation, inspection, or some other review as authorized by the
Inspector General Act, as amended.
14. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained manually in paper and/or electronic form
(including computer databases or discs). Records may also be maintained
on back-up tapes, or on a PBGC or a third-party physical access control
system.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one of the following: employee or
contractor name, PIV card number, temporary access card number, access
clearance, key number, key removal date and time, visitor name, date
and time of visit, organization, name of PBGC personnel escorting the
visitor, visitor badge number, and reason for visit.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for physical
security and access control systems and will be maintained in
accordance with General Records Schedule 5.6 Security Records Items:
010, 021, 100, 111, 120, 121, 130, and 240.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
PIV cards, assigning user accounts to individuals needing access to the
records and by passwords set by authorized users that must be changed
periodically.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, or by
emailing pbgc.gov">disclosure@pbgc.gov, providing their name, address, date of
birth, and verification of their identity in accordance with 29 CFR
4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, following the requirements of
Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, or by emailing pbgc.gov">disclosure@pbgc.gov, providing their name,
address, date of birth, and verification of their identity in
accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-28, Physical Security and Facility Access (last published at
89 FR 3436 (Jan. 18, 2024)).
SYSTEM NAME AND NUMBER:
PBGC-29: Freedom of Information Act and Privacy Act Request
Records.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101. (Records may be kept at an additional
location as backup for continuity of operations at AINS LLC, DBA
OPEXUS, 1101 17th St NW #1200, Washington, DC 20036.)
SYSTEM MANAGER(S):
Deputy General Counsel, Office of the General Counsel (OGC), PBGC,
445 12th Street SW, Washington, DC 20024-2101.
[[Page 73245]]
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
5 U.S.C. 552, The Freedom of Information Act (FOIA), and 5 U.S.C.
552a, The Privacy Act of 1974 (PA).
PURPOSE(S) OF THE SYSTEM:
The purpose of this system is to process requests for records made
under the provisions of the FOIA and PA, and to assist PBGC in carrying
out other responsibilities relating to FOIA and PA including
operational, management, and reporting purposes.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Individuals or their representatives who have submitted FOIA
requests, PA requests, or combined FOIA and PA requests for records or
information and administrative appeals or have litigation pending with
a federal agency; individuals whose requests, appeals or records have
been referred to PBGC by other agencies and/or the PBGC personnel
assigned to handle such requests, appeals and litigation.
CATEGORIES OF RECORDS IN THE SYSTEM:
Records in the system may contain names, mailing addresses, email
addresses and telephone numbers of individuals making requests for
records or information pursuant to the FOIA/PA; online identity
verification information (User name and password), Universally Unique
Identification (UUID), name, and email address from Login.gov for
account creation and authentication, and any other information
voluntarily submitted, such as an individual's social security number;
tracking numbers, correspondence with the requester or the requester's
representatives, internal PBGC correspondence and memoranda to or from
other agencies or entities having a substantial interest in the
determination of the request; responses to the request and appeals, and
copies of responsive records. These records may contain personal
information retrieved in response to a request. FOIA and PA case
records may contain inquiries and requests regarding any of PBGC's
other systems of records subject to the FOIA and PA, and information
about individuals from any of these other systems may become part of
this system of records.
RECORD SOURCE CATEGORIES:
Requesters and persons acting on behalf of requesters, PBGC and
other Federal agencies having a substantial interest in the
determination of the request, and employees processing the requests.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. To law enforcement in the event the record is connected to a
violation or potential violation of law, whether civil, criminal or
regulatory in nature, and whether arising by general statute,
regulation, rule, or order issued pursuant thereto. Such disclosure may
be made to the appropriate agency, whether Federal, state, local, or
tribal, or other public authority responsible for enforcing,
investigating or prosecuting such violation or charged with enforcing
or implementing the statute, or rule, regulation, or order issued
pursuant thereto, if PBGC determines that the records are both relevant
and necessary to any enforcement, regulatory, investigative or
prospective responsibility of the receiving entity.
2. To a Federal, state, tribal or local agency or to another public
or private source maintaining civil, criminal, or other relevant
enforcement information or other pertinent information if, and to the
extent necessary, to obtain information relevant to a PBGC decision
concerning the hiring or retention of an employee, the retention of a
security clearance, or the letting of a contract.
3. With the approval of the Director, Human Resources Department
(or his or her designee), the fact that this system of records includes
information relevant to a Federal agency's decision in connection with
the hiring or retention of an employee, the retention of a security
clearance, the letting of a contract, or the issuance of a license,
grant, or other benefit may be disclosed to that Federal agency.
4. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the disclosure of
the records to use is compatible with the purpose for which PBGC
collected the information.
5. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use is compatible with the
purpose for which PBGC collected the information.
6. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
7. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
8. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
9. To another Federal agency or Federal entity, when PBGC
determines that information from this system of records is reasonably
necessary to assist the recipient agency or entity in (1) responding to
a suspected or confirmed breach or (2) preventing, minimizing, or
remedying the risk of harm to individuals, the recipient agency or
entity (including its information systems, programs, and operations),
the Federal Government, or national security, resulting from a
suspected or confirmed breach.
10. To the extent needed to perform duties under the contract, to
third party contractors who are performing or working on a contract in
connection with the performance of an IT service or in support of
PBGC's Disclosure Division related to this system of records.
Recipients of these records shall be required to comply with the
[[Page 73246]]
requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a.
11. To respond to FOIA requests and appeals made through the
agencies electronic FOIA and PA request system, including the names of
FOIA requesters, dates related to the processing of the request, and a
description of the records sought by the requester (excluding any
personally identifiable information in the description of the records,
such as telephone or cell phone numbers, home or email addresses,
social security numbers), unless the requester asks for the redaction
of any personally identifiable information (PII). This information may
also be used to create a publicly available log of requests;
12. To assist PBGC in making an access determination, a record from
this system may be shared with (a) the person or entity that originally
submitted the record to the agency or is the subject of the record or
information; or (b) another Federal entity;
13. To the National Archives and Record Administration's (NARA),
Office of Government Information Services (OGIS), to the extent
necessary to fulfill its responsibilities in 5 U.S.C. 552(h), to review
administrative agency policies, procedures and compliance with the
FOIA, and to facilitate OGIS's offering of mediation services to
resolve disputes between persons making FOIA requests and
administrative agencies;
14. To the Department of Justice (DOJ), to the Department of the
Treasury, or to a consumer reporting agency for collection action for
unpaid FOIA fees when circumstances warrant; and,
15. To the Office of Management and Budget (OMB) or the DOJ to
obtain advice regarding statutory and other requirements under the FOIA
or Privacy Act.
16. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained in electronic databases. Records may also be
maintained on back-up tapes, or on a PBGC or a contractor-hosted
network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Records are retrieved by any one or more of the following: Name,
subject, request file/tracking number, or other data element as may be
permitted by an automated system.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for
participant systems and will be maintained in accordance with PBGC
Records Schedule. See General Records Schedule (GRS) Items 4.2 Items
001,010, 020, 040, 050, 090. See also PBGC Records Schedule Item 1.2:
Administrative Records--Privacy Act.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals. Paper records are
kept in file folders in areas of restricted access that are locked
after office hours.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically. Further, for
certain systems covered by this notice, heightened security access is
required. Such access is granted by the specific permissions group
assigned to monitor that particular system and only authorized
employees of the agency may retrieve, review or modify those records.
All employees are annually required to agree to and comply with PBGC's
Rules of Behavior with respect to PBGC's IT systems and PII.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, providing
their name, address, date of birth, and verification of their identity
in accordance with 29 CFR 4902.3(c), or via PBGC's online FOIA/PA
system the link to which is located at https://www.pbgc.gov/about/pg/footer/foia. Individuals or third parties will be required to provide
information to verify their identity when making a request.
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, providing their name, address, date of birth, and verification of
their identity in accordance with 29 CFR 4902.3(c), or via PBGC's
online FOIA/PA system the link to which is located at https://www.pbgc.gov/about/pg/footer/foia. Individuals or third parties will be
required to provide information to verify their identity when making a
request.
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
To the extent that copies of exempt records from other systems of
records are entered into this system, PBGC claims the same exemptions
for those records that are claimed for the original primary systems of
records from which they originated.
HISTORY:
PBGC-29: Freedom of Information Act and Privacy Act Request
Records--PBGC (last published at 88 FR 41663 (Jun. 27, 2023)).
SYSTEM NAME AND NUMBER:
PBGC-30: Surveys and Complaints.
[[Page 73247]]
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
Pension Benefit Guaranty Corporation (PBGC), 445 12th Street SW,
Washington, DC 20024-2101. (Records may be kept at an additional
location of the commercial service provider of Qualtrics, 333 W. River
Park Drive Provo, UT 84604, in the Amazon Web Services Government
Commercial Cloud).
SYSTEM MANAGER(S):
Office of the General Counsel (OGC), PBGC, 445 12th Street SW,
Washington, DC 20024-2101.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
29 U.S.C. 1055, 1056(d)(3), 1302, 1303, 1310, 1321, 1322a, 1341,
1342, 1343, 1350; 1431, and 1432; 5 U.S.C. 301; 44 U.S.C. 3101 et seq.
PURPOSE(S) OF THE SYSTEM:
The purpose of this system of records is for all departments at
PBGC to elicit feedback through surveys and respond to complaints PBGC
receives from communications contained within them. This includes a
process for tracking, receiving, and responding to surveys, complaints,
concerns, or questions from individuals about the organizational
security and privacy practices. Names, addresses, and telephone numbers
are used to survey customers to measure their satisfaction with PBGC's
services and to track (for follow-up) those who do not respond to
surveys. De-identified, aggregated information from this system may be
used for research and statistical purposes.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Individuals who access a website operated by or on behalf of PBGC;
and individuals who are the subject of or are otherwise connected to an
inquiry, investigation, or complaint concerning PBGC's privacy or
cybersecurity programs.
CATEGORIES OF RECORDS IN THE SYSTEM:
Responses to individual survey questions or complaint forms; IP
addresses; cookies (session and persistent); email communications; and
information pertaining to the individual's complaint such as their
name, email address, phone number, and details about their experience
using a PBGC website or their complaint.
RECORD SOURCE CATEGORIES:
Subject individuals; pension plan participants, sponsors,
administrators and third parties; current and former employees or
contractors.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
Information about covered individuals may be disclosed without
consent as permitted by the Privacy Act of 1974, 5 U.S.C. 552a(b), and:
1. A record from this system may be disclosed to law enforcement in
the event the record is connected to a violation or potential violation
of law, whether civil, criminal, or regulatory in nature, and whether
arising by general statute, regulation, rule, or order issued pursuant
thereto. Such disclosure may be made to the appropriate agency, whether
Federal, state, local, or tribal, or other public authority responsible
for enforcing, investigating or prosecuting such violation or charged
with enforcing or implementing the statute, or rule, regulation, or
order issued pursuant thereto, if PBGC determines that the records are
both relevant and necessary to any enforcement, regulatory,
investigative or prospective responsibility of the receiving entity.
2. A record from this system of records may be disclosed to a
Federal, state, tribal or local agency or to another public or private
source maintaining civil, criminal, or other relevant enforcement
information or other pertinent information if, and to the extent
necessary, to obtain information relevant to a PBGC decision concerning
the hiring or retention of an employee, the retention of a security
clearance, or the letting of a contract.
3. A record from this system of records may be disclosed in a
proceeding before a court or other adjudicative body in which PBGC, an
employee of PBGC in his or her official capacity, an employee of PBGC
in his or her individual capacity whom PBGC (or the Department of
Justice (DOJ)) has agreed to represent is a party, or the United States
or any other Federal agency is a party and PBGC determines that it has
an interest in the proceeding, and if PBGC determines that the record
is relevant and necessary to the litigation and that the use of the
record is compatible with the purpose for which PBGC collected the
information.
4. When PBGC, an employee of PBGC in his or her official capacity,
or an employee of PBGC in his or her individual capacity whom PBGC (or
DOJ) has agreed to represent is a party to a proceeding before a court
or other adjudicative body, or the United States or any other Federal
agency is a party and PBGC determines that it has an interest in the
proceeding, a record from this system of records may be disclosed to
DOJ if PBGC is consulting with DOJ regarding the proceeding or has
decided that DOJ will represent PBGC, or its interest, in the
proceeding and PBGC determines that the record is relevant and
necessary to the litigation and that the use of the record is
compatible with the purpose for which PBGC collected the information.
5. A record from this system of records may be disclosed to OMB in
connection with the review of private relief legislation as set forth
in OMB Circular No. A-19 at any stage of the legislative coordination
and clearance process as set forth in that Circular.
6. A record from this system of records may be disclosed to a
congressional office in response to an inquiry from the congressional
office made at the request of the individual.
7. A record from this system of records may be disclosed to an
official of a labor organization recognized under 5 U.S.C. ch. 71 when
necessary for the labor organization to properly perform its duties as
the collective bargaining representative of PBGC employees in the
bargaining unit.
8. A record from this system of records may be disclosed to
appropriate agencies, entities, and persons when (1) PBGC suspects or
has confirmed that there has been a breach of the system of records;
(2) PBGC has determined that as a result of the suspected or confirmed
breach there is a risk of harm to individuals, PBGC (including its
information systems, programs and operations), the Federal Government,
or national security; and (3) the disclosure made to such agencies,
entities, and persons is reasonably necessary to assist in connection
with PBGC's efforts to respond to the suspected or confirmed breach or
to prevent, minimize, or remedy such harm.
9. To contractors, experts, consultants, and the agents thereof,
and others performing or working on a contract, service, cooperative
agreement, or other assignment for PBGC when necessary to accomplish an
agency function. Individuals provided information under this routine
use are subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to PBGC employees.
10. To the National Archives and Records Administration or to the
General Services Administration for records management inspections
conducted under 44 U.S.C. 2904 and 2906.
11. To any source from which information is requested in the course
of processing a grievance, investigation,
[[Page 73248]]
arbitration, or other litigation, to the extent necessary to identify
the individual, inform the source of the purpose(s) of the request, and
identify the type of information requested.
12. To Another Agency or Non-Federal Entity in Connection with an
OIG Audit, Investigation, or Inspection: To another Federal agency or
non-Federal entity to compare such records in the agency's system of
records or to non-Federal records in coordination with the Office of
Inspector General conducting an audit, investigation, inspection, or
some other review as authorized by the Inspector General Act, as
amended.
13. To another Federal agency or Federal entity, when information
from this system of records is reasonably necessary to assist the
recipient agency or entity in (1) responding to a suspected or
confirmed breach or (2) preventing, minimizing, or remedying the risk
of harm to individuals, the agency (including its information systems,
programs, and operations), the Federal Government, or national
security.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Records are maintained in electronic databases. Records may also be
maintained on back-up tapes, or on a PBGC or a contractor-hosted
network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
Indexing surveys and complaints will be determined by individual
system implementations, but records are generally indexed by a generic,
sequential survey or complaint record identifier. Records may be
indexed by a combination of survey responses and contact information
that is voluntarily provided through the survey or complaint form.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Records are maintained and destroyed in accordance with the
National Archives and Record Administration's (NARA) Basic Laws and
Authorities (44 U.S.C. 3301, et seq.) or a PBGC records disposition
schedule approved by NARA. Records existing on paper are destroyed
beyond recognition. Records existing on computer storage media are
destroyed according to the applicable PBGC media practice for systems
that leverage this SORN and will be maintained in accordance with PBGC
Records Schedule. See General Records Schedule (GRS) Items 6.5.010 and
6.5.020: Public Customer Service Records; See also GRS 6.5.010:
Complaints-Customer Service; see also GRS Items 4.2.06; Privacy
complaint files. See also PBGC Records Schedule Item 1.2:
Administrative Records--Privacy Act.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
PBGC has established security and privacy protocols that meet the
required security and privacy standards issued by the National
Institute of Standards and Technology (NIST). Records are maintained in
a secure, password protected electronic system that utilizes security
hardware and software to include multiple firewalls, active intruder
detection, and role-based access controls. PBGC has adopted appropriate
administrative, technical, and physical controls in accordance with
PBGC's security program to protect the confidentiality, integrity, and
availability of the information, and to ensure that records are not
disclosed to or accessed by unauthorized individuals. Paper records are
kept in file folders in areas of restricted access that are locked
after office hours.
Electronic records are stored on computer networks, which may
include cloud-based systems, and protected by controlled access with
Personal Identity Verification (PIV) cards, assigning user accounts to
individuals needing access to the records and by passwords set by
authorized users that must be changed periodically. Further, for
certain systems covered by this notice, heightened security access is
required. Such access is granted by the specific permissions group
assigned to monitor that particular system and only authorized
employees of the agency may retrieve, review or modify those records.
RECORD ACCESS PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to request access to their records in accordance
with 29 CFR 4902.4, should submit a written request to the Disclosure
Officer, PBGC, 445 12th Street SW, Washington, DC 20024-2101, or by
emailing pbgc.gov">disclosure@pbgc.gov, providing their name, address, date of
birth, and verification of their identity in accordance with 29 CFR
4902.3(c).
CONTESTING RECORD PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to amend their records must submit a written
request, in accordance with 29 CFR 4902.5, identifying the information
they wish to correct in their file, in addition to following the
requirements of the Record Access Procedure above.
NOTIFICATION PROCEDURES:
Individuals, or third parties with written authorization from the
individual, wishing to learn whether this system of records contains
information about them should submit a written request to the
Disclosure Officer, PBGC, 445 12th Street SW, Washington, DC 20024-
2101, or by emailing pbgc.gov">disclosure@pbgc.gov, providing their name,
address, date of birth, and verification of their identity in
accordance with 29 CFR 4902.3(c).
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
None.
HISTORY:
PBGC-30: Surveys and Complaints--PBGC (last published at 89 FR 3436
(Jan. 18, 2024)).
[FR Doc. 2024-19638 Filed 9-6-24; 8:45 am]
BILLING CODE 7709-02-P | usgpo | 2024-10-08T13:26:26.371794 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/2024-19638.htm"
} |
FR | FR-2024-09-09/FR-2024-09-09-ReaderAids | Federal Register Volume 89 Issue 174 (September 9, 2024) | 2024-09-09T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
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==========================================================
FEDERAL REGISTER PAGES AND DATE, SEPTEMBER
----------------------------------------------------------
71153-71794............................................. 3
71795-72278............................................. 4
72279-72714............................................. 5
72715-72956............................................. 6
72957-73248............................................. 9
----------------------------------------------------------
CFR PARTS AFFECTED DURING SEPTEMBER
----------------------------------------------------------
At the end of each month the Office of the Federal Register
publishes separately a List of CFR Sections Affected (LSA),
which lists parts and sections affected by documents published
since the revision date of each title.
3 CFR
Proclamations:
10795................................................72279
10796................................................72283
10797................................................72285
10798................................................72287
10799................................................72289
10800................................................72291
10801................................................72293
10802................................................72295
Administrative Orders:
Memorandums:
Memorandum of August 9, 2024.........................71795
Memorandum of August 16, 2024........................71799
Memorandum of August 23, 2024........................71801
Presidential Determinations:
No. 2024-10 of August 9, 2024........................71797
5 CFR
1200.................................................72957
1201.................................................72957
1203.................................................72957
1209.................................................72957
10 CFR
72............................................72299, 72304
Proposed Rules:
72............................................72342, 72344
11 CFR
Proposed Rules:
104..................................................72346
12 CFR
Proposed Rules:
613..................................................72759
13 CFR
Proposed Rules:
126..................................................72763
14 CFR
39.........72309, 72312, 72966, 72968, 72971, 72974, 72976
71...................................................72981
Proposed Rules:
39.....................................73003, 73009, 73014
71................71189, 71191, 71863, 72765, 73020, 73022
15 CFR
734..................................................71803
736..................................................72926
738..................................................72926
740...........................................71803, 72926
742..................................................72926
743..................................................72926
744..................................................71803
746..................................................71803
772..................................................72926
774...........................................71803, 72926
16 CFR
Proposed Rules:
1112.................................................73024
1250.................................................73024
17 CFR
1....................................................71803
3....................................................71803
5....................................................71803
9....................................................71803
10...................................................71803
11...................................................71803
12...................................................71803
13...................................................71803
14...................................................71803
15...................................................71803
16...................................................71803
17...................................................71803
18...................................................71803
20...................................................71803
23...................................................71803
30...................................................71803
31...................................................71803
37...................................................71803
41...................................................71803
43...................................................71803
45...................................................71803
46...................................................71803
49...................................................71803
140..................................................71803
142..................................................71803
144..................................................71803
145..................................................71803
146..................................................71803
147..................................................71803
148..................................................71803
149..................................................71803
150..................................................71803
155..................................................71803
160..................................................71803
162..................................................71803
165..................................................71803
170..................................................71803
171..................................................71803
21 CFR
573..................................................72315
862..................................................72982
864..................................................72315
870..................................................72317
872...........................................71153, 72320
876...........................................72715, 72984
882..................................................71155
886..................................................72322
888..................................................71157
890..................................................71159
[[Page ii]]
24 CFR
Proposed Rules:
5....................................................72766
26 CFR
Proposed Rules:
1......................................71193, 71214, 71864
301...........................................71214, 72348
27 CFR
Proposed Rules:
4....................................................73050
5....................................................73050
19...................................................73050
24...................................................73050
26...................................................73050
27...................................................73050
30 CFR
550..................................................71160
31 CFR
548..................................................72717
587....................................72717, 72718, 72719
591..................................................72986
1010.................................................72156
1032.................................................72156
32 CFR
Proposed Rules:
3....................................................71865
33 CFR
100...............71821, 71823, 71824, 72323, 72327, 72721
117..................................................71184
165.............................71824, 72329, 72987, 72989
Proposed Rules:
100..................................................72348
165...........................................73054, 73055
36 CFR
214..................................................72990
251..................................................72990
Proposed Rules:
1191.................................................71215
38 CFR
Proposed Rules:
21...................................................72351
40 CFR
52..............................71185, 71826, 71830, 72721
81...................................................71830
98...................................................71838
180..................................................72994
300..................................................72331
705..................................................72336
Proposed Rules:
52.......................71230, 71237, 71872, 72353, 72770
63...................................................72355
180..................................................72775
300..................................................72356
705..................................................72362
42 CFR
423..................................................72998
43 CFR
8360.................................................72999
45 CFR
170..................................................72998
46 CFR
Proposed Rules:
401..................................................71877
47 CFR
11...................................................72724
64...................................................71848
73...................................................72738
Proposed Rules:
90...................................................72780
96...................................................72780
50 CFR
17...................................................72739
622..................................................71860
648..................................................72758
679....................................71861, 72340, 73002
Proposed Rules:
17...................................................72362
622..................................................72794
635..................................................72796
[[Page iii]]
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this address. | usgpo | 2024-10-08T13:26:26.426835 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-09-09/html/FR-2024-09-09-ReaderAids.htm"
} |
BILLS | BILLS-118hres1418ih | Supporting the designation of March 2024 as Endometriosis Awareness Month. | 2024-08-30T00:00:00 | United States Congress House of Representatives | [Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H. Res. 1418 Introduced in House (IH)]
<DOC>
118th CONGRESS
2d Session
H. RES. 1418
Supporting the designation of March 2024 as Endometriosis Awareness
Month.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
August 30, 2024
Mr. David Scott of Georgia (for himself, Mrs. Gonzalez-Colon, Ms.
Williams of Georgia, Ms. Chu, Ms. Clarke of New York, Ms. Norton, and
Ms. Wasserman Schultz) submitted the following resolution; which was
referred to the Committee on Energy and Commerce
_______________________________________________________________________
RESOLUTION
Supporting the designation of March 2024 as Endometriosis Awareness
Month.
Whereas endometriosis is a disease in which the type of tissue that normally
grows in the uterus (the endometrium) also grows outside of the uterus;
Whereas endometriosis is one of the most common gynecological diseases in women,
and occurs in 1 in 10 women of reproductive age;
Whereas the cause of endometriosis is not known, but risk factors include--
(1) having a mother, sister, or daughter with endometriosis;
(2) menstrual cycles that started at an early age;
(3) menstrual cycles that are short; and
(4) periods that are heavy and last more than 7 days;
Whereas, for many women, the only way currently available to be certain of an
endometriosis diagnosis is to have a surgical procedure known as a
laparoscopy;
Whereas endometriosis primarily affects women in their 30s and 40s, but can
affect any woman who menstruates;
Whereas women experience a delay from three to eleven years between the first
symptoms of pain and the final endometriosis diagnosis, which can lead
to lower quality of life and high medical costs;
Whereas for many girls and women, endometriosis is a lifelong chronic disease
that can affect relationships, school, work, fertility, and daily life;
Whereas the primary symptoms of endometriosis include pain and infertility, and
many with endometriosis live with debilitating, chronic pain;
Whereas approximately 75 percent of women with endometriosis experience a
misdiagnosis;
Whereas the management of symptoms of endometriosis may include low-dose oral
contraceptives, intrauterine devices (IUDs), painkillers, including
nonsteroidal anti-inflammatory drugs (NSAIDs), and gonadotropin-
releasing hormone (GnRH) agonist therapy;
Whereas endometriosis is associated with increased health care costs and poses a
substantial burden to patients in the health care system;
Whereas, in the United States, the estimated average direct health care cost
associated with endometriosis per patient is more than $13,000 per year;
Whereas 40 percent of women with endometriosis report impaired career growth due
to endometriosis, and approximately 50 percent of women with
endometriosis experience a decreased ability to work;
Whereas the Centers for Disease Control and Prevention found that the average
number of ``bed days'' for patients with endometriosis was 18 days per
year;
Whereas women with endometriosis can lose 11 hours per workweek through lost
productivity;
Whereas the physical and psychological impact of endometriosis affects all
domains of life, including social life, relationships, and work;
Whereas medical societies and patient groups have expressed the need for greater
public attention and updated resources targeted to public education
about this unmet health need for women;
Whereas there is a need for more research and updated guidelines to treat
endometriosis;
Whereas there is an ongoing need for additional clinical research and treatment
options to manage this debilitating disease; and
Whereas there is no known cure for endometriosis: Now, therefore, be it
Resolved, That the House of Representatives--
(1) strongly supports the goals and ideals of Endometriosis
Awareness Month;
(2) recognizes the need for early detection and treatment
of endometriosis, increased education for health care
providers, and more culturally competent care;
(3) remains committed to supporting and funding
endometriosis research for more effective treatments,
increasing fertility, and, ultimately, a cure; and
(4) encourages the people of the United States to observe
the month with appropriate awareness and educational
activities.
<all> | usgpo | 2024-10-08T13:26:33.940490 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/BILLS-118hres1418ih/html/BILLS-118hres1418ih.htm"
} |
CHRG | CHRG-106shrg67479 | Combating Methamphetamine Proliferation in America | 1999-07-28T00:00:00 | United States Congress Senate | [Senate Hearing 106-715]
[From the U.S. Government Publishing Office]
S. Hrg. 106-715
COMBATING METHAMPHETAMINE PROLIFERATION IN AMERICA
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
S. 1428
A BILL TO AMEND THE CONTROLLED SUBSTANCES ACT AND THE CONTROLLED
SUBSTANCES IMPORT AND EXPORT ACT RELATING TO THE MANUFACTURE, TRAFFICK,
IMPORT, AND EXPORT OF AMPHETAMINE AND METHAMPHETAMINE, AND FOR OTHER
PURPOSES
__________
JULY 28, 1999
__________
Serial No. J-106-41
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
67-479 CC WASHINGTON : 2000
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
(ii)
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........ 1
Feinstein, Hon. Dianne, U.S. Senator from the State of California 3
Grassley, Hon. Charles E., U.S. Senator from the State of Iowa... 6
Kyl, Hon. Jon, U.S. Senator from the State of Arizona............ 9
Feingold, Hon. Russell D., U.S. Senator from the State of
Wisconsin...................................................... 10
Sessions, Hon. Jeff, U.S. Senator from the State of Alabama...... 12
Kohl, Hon. Herbert, U.S. Senator from the State of Wisconsin..... 12
Ashcroft, Hon. John, U.S. Senator from the State of Missouri..... 13
Biden, Hon. Joseph R., Jr., U.S. Senator from the State of
Delaware....................................................... 15
DeWine, Hon. Mike, U.S. Senator from the State of Ohio........... 16
CHRONOLOGICAL LIST OF WITNESSES
Statement of Hon. Tom Harkin, U.S. Senator from the State of Iowa 8
Panel consisting of Donnie R. Marshall, Acting Administrator,
Drug Enforcement Administration, U.S. Department of Justice,
Washington, DC; Paul M. Warner, U.S. attorney for the District
of Utah, Salt Lake City, UT; Katina Kypridakes, manager,
Precursor Compliance Program, California Bureau of Narcotic
Enforcement, Sacramento, CA; Ron Doerge, sheriff, Newton
County, MO, Neosho, MO; and John Vasica, Sandy, UT............. 17
ALPHABETICAL LIST AND MATERIALS SUBMITTED
Doerge, Ron:
Testimony.................................................... 43
Letter to Senator Hatch dated July 26, 1999.................. 45
Grassley, Hon. Charles E.: Prepared statement of the Agricultural
Retailers Association.......................................... 32
Harkin, Hon. Tom: Testimony...................................... 8
Kypridakes. Katina:
Testimony.................................................... 34
Prepared statement........................................... 39
Marshall, Donnie R.:
Testimony.................................................... 17
Prepared statement........................................... 22
Vasica, John: Testimony.......................................... 46
Warner, Paul M.:
Testimony.................................................... 28
Prepared statment............................................ 30
COMBATING METHAMPHETAMINE PROLIFERATION IN AMERICA
----------
WEDNESDAY, JULY 28, 1999
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:13 a.m., in
room SD-628, Dirksen Senate Office Building, Hon. Orrin G.
Hatch (chairman of the committee) presiding.
Also present: Senators Grassley, Kyl, DeWine, Ashcroft,
Sessions, Biden, Kohl, Feinstein, and Feingold.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A. U.S. SENATOR FROM
THE STATE OF UTAH
The Chairman. We are happy to have you all here today.
Today, the Judiciary Committee will hear testimony concerning
the growing problem of methamphetamine manufacturing and
trafficking.
Last week I, along with Senators DeWine, Feinstein,
Thurmond, Biden, and others, introduced the Methamphetamine
Anti-Proliferation Act of 1999. That is a bill designed to
address the serious problem of methamphetamine manufacturing in
this country. Methamphetamine is known on the streets as
``meth,'' ``speed,'' ``crank,'' ``ice,'' and ``crystal meth.''
It is a highly toxic and addictive stimulant that affects the
central nervous system.
Methamphetamine, first popularized by outlaw biker gangs in
the late 1970's, is now being manufactured in makeshift
laboratories across the country by criminals who are determined
to undermine our drug laws and profit from the addiction of
others. I hope that with some of the testimony we will hear
today, we can learn how to better combat methamphetamine.
One problem we face is that it doesn't take a lot of
ingenuity or resources to manufacture methamphetamine. This
drug is manufactured from readily available and legal chemicals
and substances. In addition, there are countless Internet Web
sites devoted specifically to providing detailed instructions
for making methamphetamine. Anyone who has access to the
Internet has access to the recipe of this deadly drug. In fact,
one pro-drug Internet site contains more than 70 links to sites
that provide detailed information on how to manufacture illicit
drugs, including methamphetamine.
Accordingly, the methamphetamine production problem is real
and it is immediate. The numbers are telling. According to the
Drug Enforcement Administration, the number of labs seized has
increased dramatically each year since 1995. Last year, 5,786
amphetamine and methamphetamine labs were seized by the DEA and
State and local law enforcement officials, and millions of
dollars were spent cleaning up the pollutants and toxins left
behind by the operators of these labs.
In Utah alone, there were 266 lab seizures last year, a
number which elevated Utah to the unenviable position of being
ranked third among all States for highest per-capital lab
seizures. I should point out, however, that seizures would not
occur if Utah's law enforcement community wasn't doing all it
could with the resources it has. Indeed, the high number of
seizures by both Federal and State law enforcement officials
not only represents the severity of the problem, but also
serves as a testament to how Federal, State and local law
enforcement agencies have been working together to rid our
Nation of this problem.
The problem wit the high number of manufacturing labs is
compounded by the fact that the chemicals and substances
utilized in the manufacturing process are unstable, volatile,
and highly combustible. The smallest amounts of these chemicals
when mixed improperly can cause explosions and fires. And, of
course, most of those operating methamphetamine labs are not
scientists but rather unskilled criminals who are completely
apathetic to the destructive powers that are inherent in the
manufacturing process.
This fact is even more frightening when you consider that
many of these labs are found in residences, motels, trailers,
and vans, and many are operated in the presence of children.
All one need do is remember the three young children who were
burned to death when a methamphetamine lab being operated by
their own mother in a trailer home exploded and caught fire.
That was mentioned in a San Diego Union Tribune article
entitled ``Meth Madness: Home Deaths Ruled Felony Murder.'' I
honestly don't know which is worse: using methamphetamine or
manufacturing it. Either way, methamphetamine is killing our
kids.
So what can we do about the problem? In 1996, Congress
passed the Methamphetamine Control Act. This important,
bipartisan measure targeted the diversion of the most commonly
used precursor chemicals and mandated strict reporting
requirements in the sales of these chemicals. These measures
have allowed the DEA, along with the help of industry, to stop
large quantities of precursor chemicals from being purchased in
the United States for use in manufacturing methamphetamine. But
as this hearing will demonstrate, more can and should be done
to help law enforcement uncover, arrest, and hold accountable
those who produce this drug.
My proposal will provide, in part, necessary funding to the
DEA to combat methamphetamine manufacturing by providing
assistance to State and local law enforcement officials in
small and mid-sized communities in all phases of
methamphetamine investigations and establishing additional DEA
offices in rural areas. It will also provide much needed
training to State and local agencies in handling toxic waste
created by methamphetamine labs.
The legislation prohibits the posting of illegal drug
recipes on the Internet when there is intent to commit a
Federal crime, and it clarifies that Federal law prohibits the
advertisement and sales of drug paraphernalia over the
Internet. Importantly, it provides for stiff penalties when the
manufacturing of an illegal drug creates a substantial risk of
harm to human life or the environment. Finally, it makes
restitution mandatory for costs incurred by the government for
the cleanup of waste produced by methamphetamine labs. This
legislation will provide law enforcement with several effective
tools that will help us turn the tide of proliferation of
methamphetamine manufacturing both here in America and across
our borders.
Now, in closing I want to thank the distinguished panel of
witnesses for their appearance today. I would like to point out
that among our fine witnesses are two Utahns, U.S. Attorney
Paul Warner, and John Vasica, a father who has felt the
heartache of methamphetamine abuse and is doing something about
it. I look forward to their testimony and the testimony of all
of our witnesses.
I would also like to thank the various members of this
committee who have worked so hard throughout their careers
against these types of problems, and most of them are here this
morning. Particularly, I would like to turn now to someone who
has done an awful lot of work in this area and who deserves a
lot of credit, Senator Feinstein.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman, and
thank you for convening the hearing. Your deep concern over the
spread of methamphetamine through our country is greatly
appreciated. I just want to begin by saying that this is an
issue that worries me greatly.
I would like to join you in welcoming our witnesses here as
well, and I would like to extend a special welcome to Katina
Kypridakes, from California. She is Manager of the Precursor
Compliance Unit at California's Bureau of Narcotic Enforcement.
Ms. Kypridakes has worked extensively with my office over the
years in the drafting of earlier legislation to control the
precursor chemicals that you alluded to. These precursor
chemicals are used to cook methamphetamine. The legislation
that you spoke about that I worked with you on was passed into
law in 1996.
Unfortunately, California is considered by DEA to be the
source country for methamphetamine in the United States. Former
DEA Administrator Tom Constantine testified earlier this year
before Congress that super labs capable of producing hundreds
of pounds of methamphetamine on a weekly basis have been
established in both Mexico and California, where the
methamphetamine is then provided to traffickers who then
distribute it across the United States.
I am sorry to say that in a nationwide drug enforcement
operation known as Operation Pipeline, 92.8 percent of all of
the methamphetamine seized throughout the country, from January
1993 to May 1995, was identified as having California as its
origination point. The 1990's have seen a dramatic increase in
methamphetamine abuse. Meth-related emergency room admissions
increased by 269 percent from 1992 to 1994. It tailed off in
1996, and it returned to those same high levels in 1997.
Fortunately, law enforcement has been significantly
increasing its efforts to combat meth. Last year, over 1,000
clandestine labs were seized and shut down in California alone,
1,006 by the State Bureau of Narcotic Enforcement, and 164 by
DEA. The State Bureau of Narcotic Enforcement more than doubled
its lab seizures from just 3 years earlier in 1995, when it
seized 465 labs.
Still, methamphetamine remains a major and significant
problem. California still leads the way. The National Institute
of Justice just released its annual report on meth use among
arrestees. San Diego, CA, close to Mexico, has the highest
number of meth arrestees in the country, 33 percent testing
positive for meth. Sacramento and San Jose were also among the
most hard-hit jurisdictions.
As a Missouri newspaper which was circulated to all of us
by one of our colleagues in the House last year put it,
``California wishes it had Missouri's methamphetamine problem.
That would be an improvement in a State where the production of
meth has become a major industry.'' And that is the truth.
Now, what makes this explosive growth of such significant
concern to all of us is the effect that this particular drug
has on human beings. Addicts become desensitized to meth's
effect, so that they have to use more and more to maintain
their high. Prolonged periods of abuse leads to a type of
psychotic state, including paranoid and violent behavior.
I will never forget the report of a New Mexico man high on
meth and alcohol who had a disagreement with his son in the
car. The son was 14 years old. The father chopped off his head
and threw the head out of the window of his van on a crowded
highway. That is the kind of behavior. I have seen meth
cropping up in rape victims who have been murdered, their
attacker on methamphetamine as well.
The other factor which makes meth especially dangerous is
that it is cooked--that means made up--in this country in very
dangerous and very clandestine labs. They use highly flammable
chemicals, they blow up in explosions, and they leave toxic
hazardous waste sites which require substantial environmental
cleanup. Authorities estimate that for every pound of meth made
in one of these labs, 5 pounds of toxic waste is produced.
To address this growing scourge, I would like to work
closely with you, Mr. Chairman. Senator Grassley has been very
involved; we have worked together in the past. In the 104th
Congress, all of us, including Senator Biden as well,
participated in that comprehensive Methamphetamine Control Act.
Now, in that Act we tried to get at the precursor
chemicals--iodine, hydrochloric gas--and we added them to the
Chemical Diversion and Trafficking Act, requiring purchasers to
provide their name, address and other information at the time
of sale. We substantially increased fines for companies selling
those chemicals to make methamphetamine, and we eliminated
over-the-counter exemptions for pseudoephedrine. That is used
in common cold remedies. We required the reporting of retail
sales of more than 24 grams.
We found that what was happening is that some of these
people who made methamphetamine would go into like Long's
drugstore and just sweep the shelves and take these cold
remedies for the pseudoephedrine and go out and use them in the
cooking of meth.
We also increased the maximum penalty from 10 to 20 years
for possession of chemicals or equipment used to make meth.
Senator Ashcroft introduced the Methamphetamine Trafficking
Penalty Enhancement Act of 1998 which equalized penalties for
meth with those for crack cocaine, and many of us worked with
him on that bill as well.
However, I think the point of this hearing--and I am
delighted that Senator Harkin is here because both he and
Senator Grassley share the concern for the spread to the State
of Iowa which has become pronounced. We need to do more, and it
is difficult to really know what to do more.
The bill that you have introduced, Mr. Chairman, and that I
am proud to also cosponsor along with others of my colleagues
here, increases the penalties for dealing in amphetamines,
equalizing the amphetamines with methamphetamine. It increases
the sentences for endangering the safety of a minor in meth
manufacturing or trafficking.
We have had these labs blow up when actually minor
children, 3, 4, 5 years old, are on the premises. And we have
seen the parents go off, run, and leave their children in the
meth labs. So what we would do here is increase the sentences
for endangering the safety of a minor generally in the
production or cooking of meth.
We would prohibit advertisement for drug paraphernalia
which you see here, and we would make it easier for prosecutors
to prove a continuing criminal enterprise charge by clarifying
that the jury simply has to find that the defendant committed
any three drug felonies, and not necessarily the same three
drug felonies.
We would require the criminals to pay the lab cleanup
costs. We would make it a crime to endanger the environment in
illegally manufacturing a controlled substance. We would
prohibit the distribution of drug-making information, make so-
called sneak-and-peek warrants effective, authorize funding for
DEA clandestine laboratory training for both State and local
law enforcement, and increase the emphasis of methamphetamine
in high-intensity drug trafficking areas, which incidentally
are working very well. We also authorize funding for 50 new DEA
positions, including 31 special agents to focus on meth, and we
would require antidrug messages on all Federal Government Web
sites. These are very definitive and very positive steps which
we hope will help law enforcement in its fight against
methamphetamine.
So I very much look forward to hearing our witnesses today
as to what they think the progress in the methamphetamine fight
has been, how successful our efforts to control the precursor
chemicals have been, and whether this bill, with its more
stringent penalties and other aspects, can be of help in the
fight against methamphetamine.
I thank you very much, Mr. Chairman.
The Chairman. Thank you, Senator Feinstein.
Because everybody on the dais has had a great deal to do
with this, in order of appearance we will next call on Senator
DeWine and then we will go to Senator Feingold and back to
Senator Grassley.
Senator Grassley. Well, DeWine is not here.
The Chairman. Oh, he is not here. Well, then, we will go to
Senator Grassley.
Senator Grassley. He may come back.
The Chairman. Let me introduce Senator Grassley. I am
sorry. I thought Senator DeWine was here.
Senator Grassley. That is OK.
The Chairman. Let me introduce Senator Grassley, who is the
chairman of the Senate Caucus on International Narcotics
Control. We are very pleased that you are on this committee and
that you have done so many things in this area. So we will turn
to you first for a short statement, if we can.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. I think, first of all, I thank Senator
Feinstein for going over our previous work together in this
area. Senator Hatch has done a very good job of pointing out
the situation in his State. I think Senator Harkin's presence
here and my being a member of this committee and speaking about
this emphasizes the importance of this problem to my State of
Iowa, both from a meth production standpoint and destroying
lives and also from the harming of the environment, and also I
think because meth is probably a problem that
disproportionately affects rural America, and that doesn't
denigrate anything that Senator Feinstein said about
California.
While most of the drug is produced in Mexico by criminal
gangs, there has obviously been demonstrated here a growing
domestic production, and again primarily in rural areas. Along
with you, Mr. Chairman, there are a number of Senators on this
committee from rural areas in the West and Midwest who I am
sure back up this point.
There is a story in a recent issue of the Des Moines
Register that Senator Harkin and I are very much acquainted
with about this young girl in Burlington, IA, Jessica Smith,
who died, and probably the youngest person in my State to die
from meth use. Sadly, she had used it 15 times before, and on
each occasion it was given by the mother. And in this
particular case, she died of a soft drink being laced with
meth, and the parent and one other adult have pleaded guilty to
that. But I think it brings very much home the problem that we
have and is a real face for those of us in Iowa on the problem
that it is.
Jessica Smith is a real person that has been hurt by it, a
young person, a person who had their full life ahead of them,
and probably would be able to contribute unique talents to
society but is not alive today to do it. But we are here today
to make sure that other Jessica Smiths don't happen in my
State.
For my part, I am pleased that the Commerce, State and
Justice appropriations bill which the Senate just passed last
week contains money that I requested for law enforcement in
Iowa. The Iowa Methamphetamine Initiative will fund a Meth Ed
Learning Center that will teach middle school students about
the dangers of meth and help the State pay overtime for Iowa
law enforcement agencies involved with cleaning up meth labs. I
am hopeful that these new resources will provide vital
assistance to the Iowa law enforcement community which is doing
a wonderful job in the face of this drug explosion.
In 1998, Mr. Chairman, as you gave figures for your State,
we had 321 methamphetamine labs found in Iowa and so-called
busted, and that was more than double the year before. And as
of the first quarter of this year, over 170 labs have been
found in Iowa. At this rate, my State will almost double again
local production of meth and the busting of labs. And that, of
course, is just what we know about. Those statistics don't even
account for the flow of meth from out of State, and we have
heard from law enforcement people that maybe only 10 percent is
manufactured within our State.
Another unique aspect of the meth problem is that you can
get the formula for producing it off the Internet, and many of
the chemicals that you need to produce it are sold at the local
hardware stores and pharmacies. And as a farmer from my State,
I am concerned and, of course, dismayed learning recently, as
Senator Harkin has, about common chemicals used on the farm
being stolen from the farm to produce it. One of those is
anhydrous ammonia, which many of you know is a soil nitrogen
enhancer commonly used by farmers that raise corn, having been
stolen for this reason of production of methamphetamine.
I have also introduced legislation called the Rural
Methamphetamine Use Response Act of 1999 which will provide
assistance for researchers at our State university looking for
chemical treatments that will make anhydrous ammonia useless in
meth production and increase penalties for transporting
anhydrous ammonia across State lines for use in meth-making.
I am pleased that we have had Senators Kyl, DeWine, Hagel
and Kohl join in the cosponsorship of this. And I know, Mr.
Chairman, that you have recently introduced a meth bill that
you have just described which I am studying at this time and I
hope to be able to support as well. I am particularly
interested in getting some tough new mandatory minimums for
meth production and trafficking so that the public will know
that meth dealers who get caught will be off the street for a
very long period of time.
My legislation will also increase resources to provide
training in meth lab cleanup and will increase funding to the
Drug Enforcement Administration for assistance in lab cleanup.
Meth labs are essentially toxic waste dumps filled with
dangerous, unstable chemicals. Handling these labs requires
special training for our law enforcement people.
The legislation also creates a number of regional training
centers to help struggling communities deal with the explosion
in meth production. My legislation would enhance the ability to
provide training to local police and sheriffs to meet the
challenge.
So together with the funding of the Commerce-State-Justice
appropriations bill, I feel that we are on the way to helping
law enforcement in my State and other States in the Midwest to
make a dent in the meth trade. So, Mr. Chairman, this is a very
timely hearing and I thank you for the leadership that it
shows.
The Chairman. Well, thank you, Senator Grassley.
I understand that Senator Harkin is missing a markup and
his statement is only 3 minutes, they tell me. So with the
permission of the ranking member, we will turn to you at this
time and take your statement. So we will just take your
statement at this time, Senator Harkin.
STATEMENT OF HON. TOM HARKIN, A U.S. SENATOR FROM THE STATE OF
IOWA
Senator Harkin. I appreciate that, Mr. Chairman, because we
are marking up the SAMHSA bill, the Substance Abuse and Mental
Health Services bill, and part of it has to do with
methamphetamine and I want to get over there.
The Chairman. That is right.
Senator Harkin. Thank you very much, Mr. Chairman, for
inviting me here, and to all of you. I especially want to thank
you, Mr. Chairman, for your strong leadership both in terms of
fighting all drugs, but especially on this new epidemic that is
sweeping this Nation. I really appreciate it.
The Chairman. Thank you.
Senator Harkin. And I know all the people in our State
appreciate it because of your strong leadership, and I commend
all of you for trying to get this legislation moving.
I can't add much to what has already been said and I know
that others will say, except maybe two things. This really is,
first, Mr. Chairman, approaching epidemic proportions as it
sweeps across the country. I just noticed the other day in the
newspaper that all the damage that was done at this recent
Woodstock and all the burning and the violence, that
methamphetamine was one of the drugs that was in prevalence at
that Woodstock.
Second, it has been reported to us in Iowa that
methamphetamine is a contributing factor in 80 percent of
domestic violence cases. In 80 percent of the domestic violence
cases, methamphetamine is playing a role.
As Senator Grassley said, in Iowa 320 clandestine meth labs
confiscated last year, 5 times the number of the year before.
Already this year, 280 labs have been confiscated in the State
of Iowa, and so it really is reaching epidemic proportions.
A number of people have bills in. You, Mr. Chairman, have a
great bill, S. 1428. Senator Grassley has his bill, S. 1220.
Senator Ashcroft has his bill, and I have a bill in, too. All
of them have a lot of similarities to them. I would commend to
you, Mr. Chairman, two things; first of all, the provision in
Senator Grassley's bill that focuses on anhydrous ammonia. That
is not in my bill and it is not in any other bill, but I hope
that it can be incorporated in whatever legislation you put
through because it is a dangerous thing that we see in Iowa and
other States in the Midwest where they are raiding anhydrous
ammonia tanks and things like that to make meth. So I commend
that to you in Senator Grassley's bill.
Senator Ashcroft also has a provision in his bill which is
not in any of the other bills that I have looked at, and that
is more funding for the HIDTA's, the high-intensity drug
trafficking areas, which I also commend to you to try to get
that funding out there. That is in Senator Ashcroft's bill.
Again, I thank you, Mr. Chairman, and I also thank you for
your leadership in the Commerce-Justice-State appropriations
bill that just recently passed in getting the funding up for
the Edward Byrne Memorial Grant Program because that money is
also used to go out to help our local law enforcement officers,
and at least in my State a lot of it is being used to fight
this plague of methamphetamine.
There is one other thing I commend to you, Mr. Chairman, as
you mark up your legislation. In all of my studies and going
around with law enforcement on methamphetamine in Iowa, we lack
some knowledge on how to effectively treat people that have
used methamphetamine. I have met some of these people that have
used methamphetamine and I don't think we ought to give up on
them. They aren't going to be bad the rest of their lives. I
think some of them can be effectively treated.
But I found out two things. One, the treatment for
methamphetamine addiction is much longer than for other kinds
of----
The Chairman. It takes up to 3 years of intensive treatment
once a person gets hooked on methamphetamine.
Senator Harkin. Yes, I hear it is a long time.
The Chairman. Maybe more. I don't know. We will have some
of these experts to tell us here today.
Senator Harkin. Yes, and some of the experts might tell you
also about getting NIH to do some more research into more
effective treatment modalities and intervention programs. So I
would hope that that also could be part of the legislation.
Well, Mr. Chairman, again I thank you for your leadership,
and all of you on this committee for focusing on this new
plague that is just sweeping across the country, and it is just
taking a terrible toll, as Senator Grassley said, in our State.
Thank you.
The Chairman. Well, thank you, Senator Harkin. We are going
to try and get all the best provisions we can from all these
bills together. Everybody here who has a bill deserves credit
in this area for really, sincerely working on it. So we
appreciate having you here. Thank you for being here.
Senator Harkin. Thank you and the committee members for
focusing on it. I appreciate it.
The Chairman. We will turn now to Senator Kyl, who is next,
and then we will go to Senator Feingold.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman, and thank you for
holding this hearing. It is interesting that each one of us
almost seems to be trying to top the next with the stories of
how this epidemic has affected our own States. And I think it
is just a testament to the fact that this epidemic truly is
nationwide, it knows no boundaries, and it is certainly
becoming very serious.
Just a couple of things to illustrate the problem in
Arizona. Last year, DEA spent almost $500,000 in cleaning up
meth labs in Arizona and trained over 1,600 Arizona law
enforcement officers in basic lab cleanup and safety, which was
very, very useful. We held a hearing in Phoenix, a field
hearing, which actually involved a simulated lab take-down at
the training facility that is used in Maricopa County.
And to see all of the garb that has to be involved in
taking this down, where the officers have to dress up to
protect themselves, the special breathing equipment--it is
about $100 per-person cost just to take one of these down.
About 30 different law enforcement agencies get involved in
each one of the take-downs because of the different aspects of
it that are involved. It is really an incredible experience.
And then when you go in and you see this kind of equipment laid
out, you realize not only, as Senator Feinstein said, the
danger of it, but also the environmental fallout.
Almost a lab a day is being seized in my State of Arizona,
about 26 per month, which is up 30 percent over last year. Law
enforcement is seeing an increase in child endangerment cases.
About a fifth of the meth lab seizures involve young kids found
at the scene, ranging from toddlers to teenagers.
Phoenix has the second highest rate for meth emergency room
admissions in the United States, according to the Drug Abuse
Warning Network. It has the second highest percentage of
arrestees testing positive for meth in the United States. And,
again, each one of us can cite these statistics, but it just
illustrates how each one of our communities are affected.
It costs an average of about $4,400 to clean up a meth lab,
with costs running as high as about $40,000. Clearly, this is
too much of a burden, especially for some of our smaller
communities. It takes about 6 to 8 hours to complete an on-
scene investigation, and particularly in rural counties this
creates a problem.
In Mojave County, AZ, a small, rural county in the
northwest part of the State--it is not so small, actually; it
is over 13,000 square miles in size, but the population is
small. They seize about one lab per week. This year, they have
already seized 70 labs. It could double if they actually had
the resources to do it. So the point is they have been working
very closely with DEA. I certainly commend Donnie Marshall for
his excellent work at the agency in fighting the proliferation,
and commend my colleagues for each one coming up with proposed
solutions to deal with this at a Federal level.
Mr. Chairman, again, I think it is a very good thing your
holding this hearing, and I appreciate the comments that all of
my colleagues have made and hope that we can make good progress
in actually getting a grip on this serious problem.
The Chairman. Thank you, Senator Kyl.
Senator Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I also commend
you for holding a hearing on this subject. The production and
distribution of methamphetamine, or meth, is, of course, a
growing problem in the Midwest, including in my home State of
Wisconsin. It is particularly pervasive in western and northern
Wisconsin.
So it is no surprise to see the leadership of the two
Senators from Iowa because it is from over the Iowa border that
our law enforcement people are really very, very concerned
about the spread of this problem. In fact, the strongest
concerns I have heard from law enforcement lately in Wisconsin
are about this very subject.
Meth is actually similar to another synthetic drug which
appeared in my home State of Wisconsin in the recent past,
actually in northeastern Wisconsin, methcathinone, or ``cat,''
as it is commonly known. I am glad to report that through the
very hard work of law enforcement, both Federal and local,
throughout the upper Midwest, we actually were able to, in
effect, stop it at the border and made it a relatively isolated
problem.
In contrast, however, the use of meth appears to be
spreading. There can be no doubt that the consequences of
producing, distributing or using this drug are serious. We have
taken and must continue to take steps to address the growing
problem. I am pleased to have been a cosponsor of a 1996 bill
which later became law that strengthened and enhanced penalties
for the trafficking of meth.
While it is important to punish those individuals who
market meth, the 1996 law also addressed the important issue of
regulating precursor chemicals, chemicals that are used to
produce this deadly drug. The 1996 law increased penalties for
the illegal possession and trafficking of precursor chemicals.
The law also increased penalties for those individuals who
endanger the lives of innocent people and threaten the safety
of law enforcement officers, and also harm the environment by
operating labs that produce meth.
In addition, very importantly, we must continue Federal-
local partnerships. In April of this year, as Senator Harkin
alluded to, the Wisconsin Office of Justice Assistance was
awarded a $9.5 million Byrne grant for use throughout the State
to fight crime and the spread of drugs. Part of that grant was
targeted specifically to develop a multi-State task force to
fight the spread of meth.
Clearly, the problems of drugs confronting this Nation are
complex and challenging. It will require a long-term commitment
by all of us, and some of my colleagues, as they have
mentioned, have introduced legislation to strengthen our effort
to combat meth and I am carefully reviewing them.
My experience has taught me that it is absolutely vital
that the Federal Government be a true partner to State and
local law enforcement. But it has also taught me that we must
balance law enforcement activity and tough sanctions with
effective and adequately funded education, prevention and
treatment initiatives. We must scrutinize efforts to reduce the
minimum amounts of meth or other drugs that are required to
trigger mandatory sentencing so that sentences for casual users
remain proportionate and fair. We do have a prison population
that has tripled from 1983 to 1993.
So, Mr. Chairman, this is a terribly important issue and a
great danger. We must strike a delicate balance between
punishing offenders and ensuring that users get the treatment
they need. I want to underscore how serious I believe this
problem is, and we are feeling it in Wisconsin. Again, I want
to thank the Chairman and I look forward to working with him
and the other Members of the Committee who are obviously all
dedicated to passing effective and sensible legislation.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Feingold.
We will now go to Senator Sessions, who is next.
STATE OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF
ALABAMA
Senator Sessions. Mr. Chairman, I would just say briefly
thank you for having this hearing. I think we should deal with
this. I was involved in prosecution of meth cases and helped
Alabama change some laws on precursor chemicals that in the
early 1990's I think made a difference.
But I believe in Alabama we are now seeing a major
increase. The numbers I have seen, having visited with Senator
Ashcroft in Missouri, and I am hearing from others--this is a
remarkable development. It is an extraordinary increase in an
illegal drug, comparable I would think only to the spread of
crack cocaine that happened so rapidly, and I think it deserves
great attention. Thank you for doing so.
The Chairman. Thank you, Senator Sessions.
Our Senator from Wisconsin.
STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Kohl. Thank you, Mr. Chairman. As we all know,
while once primarily a Western problem, meth is moving eastward
and now ravaging parts of the Midwest, especially States like
Iowa, Minnesota, and increasingly across the border into my
State of Wisconsin.
For example, our State crime lab has nearly tripled the
number of meth examinations since 1996. Prosecutions have more
than doubled. Thefts of meth chemical ingredients from
Wisconsin farmers and retailers are increasing. More police are
being exposed to health hazards from meth labs. And most
disturbingly for Wisconsin, there is even meth trafficking now
at the high school level.
This, of course, is wrong and unacceptable. It is also a
bad omen of things to come, so we need to act before meth
becomes the next crack cocaine epidemic. Of course, Mr.
Chairman, no single Federal law can hope to stop the problem of
meth, but we can start to make a difference. Last week, the
Senate approved my proposal for $1 million in additional
funding for a meth task force in western Wisconsin.
On a broader level, today I am cosponsoring your
Methamphetamine Anti-Proliferation Act which increases criminal
penalties. Also, next week when we take up meth legislation in
committee I hope we can take the best aspects of the three meth
measures--yours, Mr. Chairman, Senator Ashcroft's, and mine,
along with Senator Grassley's--pass them, and promptly enact
them into law because, Mr. Chairman, we cannot afford to delay.
Thankfully, this hearing is an important step forward. I
appreciate your holding the hearing.
The Chairman. Well, thank you, Senator Kohl.
Now, with regard to our last Senator, let me just note that
Senator Ashcroft has a meth bill that is on the agenda for
tomorrow. I intend to amend it with what we have here, but what
I would like to do--and I will order that all committee staff
get together this afternoon and let's see if we can resolve any
difference on these meth bills and have a substitute that
basically we can all support and get out tomorrow.
But I want to particularly express appreciation for each
member of this committee who has spoken thus far. Each one of
you deserves a tremendous amount of credit for being willing to
do something in this area, and certainly one of the leaders in
this matter is Senator Ashcroft from Missouri.
We will turn to you at this time, Senator Ashcroft.
STATEMENT OF HON. JOHN ASHCROFT, A U.S. SENATOR FROM THE STATE
OF MISSOURI
Senator Ashcroft. Well, Mr. Chairman, I want to thank you
and I want to thank all of the people who are here today. This
reflects an understanding of the gravity of the problem of
methamphetamine. I thank virtually every member of this
committee who helped us in previous years make small progress
against this big problem, and we need to continue to do that.
We have been losing ground in the war against meth, and the
war against drugs generally. Use by eighth-graders, for
instance, of marijuana since 1992 has increased 176 percent.
Cocaine and heroin use among 10th-graders have more than
doubled. These numbers are intolerable, but sadly there is more
bad news than that on the drug front. It is the burgeoning
epidemic in America right now, the epidemic of methamphetamine.
And it is all over America. It is not a problem that we can
say is a West Coast problem or a coastal problem. It is
everywhere. We face the largest drug threat in Missouri as a
methamphetamine threat, and it may be coming soon to cities and
towns near you.
What makes meth so dangerous is that it is cheap and easy
to make and highly addictive. Most of us in our States have
been to demonstrations of labs and things like this. Crystal
meth in the 1990's is what cocaine was--I think Senator
Sessions said it right--in the 1980's and heroin was in the
1970's.
For example, in 1992 DEA agents seized two clandestine meth
labs in the State of Missouri. By 1994, there were 14 seizures.
By 1998, there were 679 labs seized in Missouri by DEA agents.
And I am pleased to see Sheriff Ron Doerge here from southwest
Missouri. Many local officials have had encounters with
methamphetamine that didn't involve the DEA, so those numbers
don't really tell us all. But can you imagine going from 2
seizures in 1992 to 679 labs being taken down in 1998?
Meth ensnares our children and endangers us all, and causes
users to commit other crimes. In 1998, the percentage of 12-
graders who used meth was double the level in 1992. Meth-
related emergency room incidents increased 63 percent over the
same period. I recently had a conversation with a number of
local law enforcement officers in Missouri. They estimated that
as many as 1 out of every 10, or 10 percent, of high school
students know the recipe for methamphetamine. It is available
on the Internet, and it is totally unacceptable.
We have in Congress taken these indicators seriously. In
the past two appropriations cycles, we have appropriated $11
million, and then $24.5 million for the Drug Enforcement
Administration to train local law enforcement in the
interdiction and cleanup of methamphetamine labs. Despite these
appropriations, we see a growing problem. It is time that we
dedicate serious resources to stopping this scourge once and
for all, and for that reason I introduced what is called the
DeFEAT Meth Act at the beginning of this session.
It would authorize $30 million to train local law
enforcement and assist in the cleanup of meth labs in fiscal
year 2000, and additional amounts in each year through fiscal
year 2004. Recently, I am pleased to have had conversations
with Donnie Marshall, the Acting Administrator of DEA. I am
pleased he could join us here today. It has become even more
clear that these resources are sorely needed in our Drug
Enforcement Administration.
My bill would also increase the mandatory minimum sentences
for manufacturing meth. It would increase them substantially if
someone is injured in the course of crimes involving meth.
DeFEAT Meth would also include meth paraphernalia in the
Federal list of illegal paraphernalia. Drug paraphernalia has
been a crime in other drug settings. We haven't amended the law
to include meth manufacturing paraphernalia and the like, and
we ought to.
By focusing on reducing supply through interdiction and
punishment, that is a step in the right direction, but it is
not enough. The legislation would also authorize substantial
resources for education and prevention specifically targeted at
the problem of meth. As I said earlier, local law enforcement
said 10 percent of the students know the recipe for meth. We
need 100 percent of students to know that meth is the recipe
for disaster and death.
The bill that I have sponsored is a simple three-part plan
to solve the problem--stiffer penalties for making meth; more
resources for interdiction, education and prevention; and,
three, a ban on meth paraphernalia. I look forward to working
together, as the chairman has indicated, to assemble the bill
to be on the agenda for this week's executive session. I hope
we can move it in a quick and bipartisan manner. I think this
is one of the areas where we have been able to cooperate very
effectively in the past and can do so again in the future.
I am very pleased that the chairman has introduced his own
meth initiative, and I think together in some of the areas
where we overlap we can obviously clean that up. There are some
minor differences. My bill authorizes more resources for
interdiction and training, and it includes additional
authorization of funds for education and prevention. But I
think we can get these things together, and particularly with
Senator Harkin, who also was here with us today.
I think that working together we have an opportunity to
move forward a package which we will be able to carry to the
floor and ask the Senate to pass so that America can take
charge in this effort of interdicting and curtailing the deadly
impact of methamphetamine in our culture.
I thank the chairman.
The Chairman. Thank you, Senator Ashcroft.
We will finish with Senator Biden, who has certainly done a
lot in this area.
STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE
STATE OF DELAWARE
Senator Biden. Thank you, Mr. Chairman. I apologize for
being late. It seems as though you and I have been working on
this one issue for a long, long time. Way back in the early
1990's, back in the good or bad old days, depending on your
perspective, when I was chairman of this committee and the
Democrats were in control, you joined me in a report that we
issued warning everyone that meth was coming.
We talked about the Bloods and the Cripps and how they were
moving into the Northwest and moving into your State. Your
drive-by shootings started to go up in the beautiful State of
Utah. We found we were having pollution problems in streams and
areas in Idaho and Montana, and it was coming East and not
everybody paid attention to it.
I remember talking with my friend from Iowa at the time and
he was aware. I mean, we were talking about that it was going
to hit Iowa, and it hit Iowa big. It hit Iowa not only in terms
of use, but the manufacture. And unfortunately this is
something that we saw coming; we knew it was coming. It wasn't
like the crack epidemic where the only person I recall talking
about the crack epidemic coming from the islands was a guy from
New York named Moynihan. He was the one saying, hey, crack is
coming, and we all kind of looked at Moynihan like, right, yes,
it is a problem, but we will get to it when we can.
We have had a lot of lead time on this. As a matter of
fact, the Hatch-Biden methamphetamine bill in 1996 made some
positive steps. That is why I and others have joined you again,
Mr. Chairman, in making an additional effort here for a new
methamphetamine bill. I will not take the time to go into
detail about the bill because we are going to have time to
debate that and hopefully mark up a bill.
But, you know, one of the things that is happening here is
this Methamphetamine Anti-Proliferation Act, which is the new
effort here, is attempting to address the problem of
amphetamine as a meth substitute by making the penalties for
manufacturing, importing or exporting the traffic of
amphetamine equivalent to those established for methamphetamine
in the 1996 law.
The two drugs are nearly identical. They differ only in one
chemical. Whereas methamphetamine is made from ephedrine, a
substance found in some over-the-counter cold remedies,
amphetamine is produced in a different way. And I won't bore
you with all the details. Our witnesses know all about this,
but the bottom line of these drugs that are the designer drugs,
in effect, out there is an interesting phenomenon. Just ask any
cop. The phenomenon is there is incredible violence associated
with methamphetamine. It is the aspect of the drug that makes
it different, different even than cocaine. It is something that
the cops in my State will tell you if they have a call that
there is a suspect who they believe is under the influence of
methamphetamine, they send three or four cops. They don't send
a single cop, literally, not figuratively. It is a different
deal.
And so not only is it spreading, not only do young people
think it is not a dangerous drug--that is the frightening part
of this. An incredible number of the people the Senator from
Missouri referred to, young people, think this is not like
heroin, this is not like cocaine. In fact, in many ways it is
worse than both.
So I agree with the Senator from Missouri. There is no
reason why we can't, in a bipartisan way, attack this, but
let's be honest with one another. This is going to be hard.
This is a hard deal. This is not like we can cut it all off at
the border. There is not a lot of heroin grown in the United
States, so if we had a great interdiction policy theoretically
we could impact on its consumption drastically. This isn't the
same deal and it is going to be harder in many ways.
But I compliment you, Mr. Chairman. Like I said, it seems
like we have been doing this a long time. I guess that is
reason to be discouraged, but another side of it is it is a
reason to be encouraged because we are making incremental
progress here, and hopefully we will come out of these hearings
with a solid piece of legislation. Although I am signed on with
you to the Hatch-Biden alternative, I am not married to that.
If there is a better idea, I am sure you are open to it, and I
am open to it, but hopefully we can make some movement.
Again, I thank the chairman for having this hearing, and
his time and the witnesses being here. I am anxious to hear
what they have to say.
The Chairman. Thank you, Senator Biden. I have personally
appreciated working with you all these years on the Judiciary
Committee. You have been, if not the leader, certainly one of
the few leaders in this country who has really made a
tremendous impact in some of these areas. We are going to get
staff together today and see if we can come up with something
that would bring us all together so that we can pass this bill
tomorrow because there is no reason for us to not solve all
these problems to the best of our abilities.
The Chairman. At this point, I would like to enter into the
record a statement of Senator DeWine.
[The prepared statement of Senator DeWine follows:]
Prepared Statement of Hon. Mike DeWine, a U.S. Senator From
the State of Ohio
Mr. Chairman, I'd like to commend you for holding this important
hearing today on a topic which should concern all of us--the rapid
growth of methamphetamine trafficking. My concern has lead me to become
an original cosponsor of ``the Methamphetamine Anti-Proliferation Act
of 1999,'' sponsored by our Chairman, as well as the rural
methamphetamine bill sponsored by Senator Grassley, and the High
Intensity Drug Trafficking methamphetamine emphasis bill sponsored by
Senator Ashcroft. I am hopeful that in the end we will develop a strong
compromise.
Throughout my career in public service, I have seen anti-narcotic
strategies that have had varying levels of success. But I have come to
learn that when it comes to the drug problem, we must never take our
eye off the ball, because it continues to change and evolve. That said,
the issue we are examining in today's hearing is part of our continuing
effort to respond to a new trend in drug abuse--the alarming rise in
domestic production and consumption of methamphetamines.
I am particularly interested in seeing that law enforcement has the
personnel and resources needed to tackle this serious problem. Our
efforts must include rural parts of America which have been hit
particularly hard by this emerging crisis. We should also assist in
providing training for local law enforcement to combat methamphetamine.
Our hearing today is an opportunity to focus on the issues that
will impact how we will fight the war on drugs in the next century. As
new methods for drug distribution emerge, such as dispersing recipes
via the Internet, the law must respond. We need to empower our law
enforcement to prosecute those who would knowingly disseminate the
dangerous recipe for methamphetamine on the Internet for an unlawful
purpose.
Finally Mr. Chairman, it is clear that the production of
methamphetamine is actually a very dangerous process in and of itself.
When druglords decide to risk the lives of innocent bystanders and to
degrade the environment to manufacture their illegal products, they
should be held accountable for harm both to people and the environment.
I look forward to being informed by the fine panel we have
assembled today. Thank you all for coming.
We are really pleased to have a tremendous panel of
witnesses here today. Our first witness is Donnie R. Marshall,
the Acting Administrator of the Drug Enforcement
Administration. If you would come to the table, we would
appreciate it.
Our second witness is Paul Warner, our U.S. attorney for
Utah doing a great job out there, and everybody is holding Paul
in high esteem because of the work he is doing in a nonpartisan
way.
Our third witness is Katina Kypridakes, manager of the
Precursor Compliance Unit at the California Bureau of Narcotic
Enforcement. We are particularly happy to have you here with us
today as well.
Our fourth witness is Sheriff Ron Doerge, who is the Newton
County sheriff, in Neosho, MO. Sheriff, we really appreciate
having you here because you are right on the ground, knowing an
awful lot of what is going on in this area, and we appreciate
it.
Our final witness today is one of my constituents for whom
I have high regard, John Vasica. He is a father of a
methamphetamine victim from Sandy, UT. John, we are honored to
have you here. We look forward to hearing your testimony.
I think what I am going to do before you give your
testimony, Mr. Marshall, is have you come up and explain these
methamphetamine lab materials, if you would, and let people
know just a little bit about what this means.
PANEL CONSISTING OF DONNIE R. MARSHALL, ACTING ADMINISTRATOR,
DRUG ENFORCEMENT ADMINISTRATION, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC; PAUL M. WARNER, U.S. ATTORNEY FOR THE DISTRICT
OF UTAH, SALT LAKE CITY, UT; KATINA KYPRIDAKES, MANAGER,
PRECURSOR COMPLIANCE PROGRAM, CALIFORNIA BUREAU OF NARCOTIC
ENFORCEMENT, SACRAMENTO, CA; RON DOERGE, SHERIFF, NEWTON
COUNTY, MO, NEOSHO, MO; AND JOHN VASICA, SANDY, UT
STATEMENT OF DONNIE R. MARSHALL
Mr. Marshall. I would be happy to.
The Chairman. If you will point this out to the audience,
and if you television people want to come over through here,
that is fine with us, and even behind the witnesses if you can
get a better picture, because I think it is important for
people to see this.
Why don't you borrow Mr. Vasica's mike and stand over on
that side so that the media can report this because this is
important. We have just made the case that this is being done
all over America, and it is easy to do it, especially if you
look at the Net. It is absolutely incredible the evil forces in
this land.
We will turn the time over to you, John.
Mr. Marshall. Thank you, Senator, for the opportunity. I
think the real point here about any methamphetamine lab is the
simplicity of this thing. You see the glassware here is
obtainable in almost any chemical supply house. You see that a
lot of the ingredients here, such as household lye, epsom salt,
Coleman fuel, Prestone starting fluid, are just obtainable at
an auto parts house, at a retail store such as a Wal-Mart or
places like that.
You have phosphorous that is used in some of the recipes,
which is a simple road flare. You have ephedrine and
pseudoephedrine that are used in many of the recipes and that
is obtainable as a cold remedy, actually, in pharmacies and
grocery stores and convenience stores all over the country.
Some of these labs are even simple enough that they use
Mason fruit jars, in some cases actually paper cups from your
local fast-food place. It is a process that is just really so
simple. With the advent of the Internet, as several of you have
referred to, the recipes are out there, all the ingredients,
and the hardware, the glassware, et cetera, are obtainable
very, very easily. And that is one of the reasons that it is so
difficult to control all this is that a lot of these things
have so many legitimate uses.
There are several methods for producing this. There is the
ephedrine-pseudoephedrine method, there is the phenyl-2-
propanol method, and there is the phenylpropanolamine method.
And I am not a chemist, of course, and each of these are
separate, slightly different formulas and slightly different
procedures, but the bottom line is that they all produce a very
easy process, a very potent product.
And one of the points that has already been made is the
difference between amphetamine and methamphetamine. It is a
simple thing of using different chemicals. Amphetamine and
methamphetamine are slightly different strengths, a slightly
different isomer, but nonetheless just as destructive and just
as potent.
The Chairman. Just as addictive.
Mr. Marshall. Just as addictive, yes, and just as, I think,
destructive to the users, and with the violence and the child
abuse and neglect and those sorts of things that we see
associated with methamphetamine equally associated with
amphetamine.
The Chairman. With these materials right here, you could
actually produce a quantity of meth that could be used to
undermine our youth?
Mr. Marshall. Yes. The smaller labs would result--the
simple things using one or two beakers or the paper cups would
produce about 2 ounces. You graduate to the beakers, and even
with larger beakers of this sort, that moves you into the super
lab. And this is not really a super lab setup, but the super
labs are capable of producing--what we call a super lab is 10
pounds or more. Some of them we have seized can actually
produce hundreds of pounds.
Senator Biden. What does 2 ounces do? If you don't mind,
Mr. Chairman, give the folks a sense of what 2 ounces can do.
Mr. Marshall. I am not sure, Senator, about the number of
dosage units for 2 ounces. But if my math is correct, I believe
2 ounces would supply an individual user for several weeks at a
time.
Senator Biden. That is the point. I mean, it is not a
single dose.
The Chairman. Right.
Mr. Marshall. No. Two ounces is multiple doses, actually.
The Chairman. Tell us a little bit about this police outfit
you are standing by. What is the significance of that?
Mr. Marshall. This is an illustration of the clandestine
lab gear that we use to actually go in and take down the
laboratories. We find that there are many toxic chemicals in
these places. They use the lye, they use acetone, ether, those
kinds of things. A lot of the stuff that they use is very
flammable. Some of it is explosive.
They use sodium metal, for instance, and if it comes in
contact with water, it is an instant explosion. And then if you
combine that with the flammable chemicals, you see the hazard
here. Many of these laboratories are booby-trapped. Many of
these laboratories are guarded by the traffickers, and so what
we have here is protective gear which is not only antiballistic
gear, but it also has the respiratory protection. And hopefully
this provides the individual officer going into these
laboratories the kind of protection he needs from the flammable
and explosive capability, as well as the fumes and exposure to
those hazardous vapors.
The Chairman. That is very good. We appreciate you taking
time to do that. We will be happy to take your testimony now.
Mr. Marshall. Thank you very much, Mr. Chairman and members
of the committee. It is really a pleasure and an honor to be
here to discuss this critical issue in our country today. I
would like to provide the committee over the next few minutes
with information on how, where and why this explosion in
methamphetamine and the tragedies that go with it have
occurred, and how Federal law enforcement, along with our State
and local partners, are trying to work together across the
Nation to address the problem.
We have already seen the laboratory equipment up there and
the protective gear, and I would just reiterate the importance
of the simplicity of this whole procedure. Now, methamphetamine
is not really a new problem in the United States. I saw it in
Austin, TX, when I was a rookie DEA agent almost 30 years ago.
But what we have seen in about the last 5 years is a
tremendous upsurge in trafficking and abuse. It started on the
West Coast. It expanded rapidly to the Midwest and to a lesser
extent to the southeastern United States. Our statistics show--
and I believe I have one chart over here--that in 1993--Senator
Ashcroft has already referred a little bit to this--we seized a
total of 218 methamphetamine labs that DEA was involved in. The
total has increased significantly to the point where in 1998
DEA was involved in over 1,600 methamphetamine laboratories,
and to date, in 1999, we have seized over 1,200.
Now, what this chart shows actually is a combination of
Federal and State and local laboratory seizures. So you can see
there--I believe it is in the blue is the DEA-only seizures, or
seizures in which we were involved. The red figure is the
figure in each State that State and local police seized and
reported to us. Now, I would caution here that even these
numbers are not necessarily all-inclusive because there are
more than 16,000 police agencies and these are the ones that
have come to our attention.
Now, with DEA, our methamphetamine arrests have also
increased, from 1,893 arrests in 1993 to over 7,500 arrests in
1998. That is an increase of 300 percent in just 5 short years.
Today, we see that about 21 percent of all DEA arrests are for
methamphetamine violations.
In 1998, the year that is shown on this chart, of the 1,627
labs that were seized by DEA, 71 of those were classified as
super labs capable of producing 10 pounds or more. And we
estimate that in spite of the proliferation of the number of
these smaller labs, it is actually the super labs that produce
over 80 percent of the methamphetamine that we see today.
The Chairman. What would 10 pounds of methamphetamine be
worth on the street?
Mr. Marshall. It is my recollection that it is about
between $50 and $10,000 per pound of methamphetamine, depending
on the part of the country.
The Chairman. You are talking $50 to $100,000. So one of
these super labs can make $50 to $100,000 in a relatively short
period of time?
Mr. Marshall. Yes, and I will check on those figures and be
sure that my prices are right.
The Chairman. Sure.
Mr. Marshall. There are two major forces today fueling this
methamphetamine. You have got, first, the super lab
methamphetamine trafficking or manufacture, and this is fueled
by organized groups that are based in or have association with
trafficking groups in Mexico. The second problem that we have
is a series of widely scattered smaller labs by independent
producers predominantly based in rural areas around the
country.
Now, the traffickers in Mexico have become really powerful
and they dominate the methamphetamine trade in the United
States. These groups have risen to power over the last few
years. Their rise to power is described in my written
statement, but the main Mexico-based organization that is
involved in methamphetamine is the Amezcua brothers. They
produce methamphetamine on a very large scale and ship it into
the United States. The Amezcua brothers and some of their
Mexico-based operatives have actually be indicted in the United
States, but thus far they have not been extradited to face
trial here.
These organizations in Mexico have long-established poly-
drug distribution networks, and they have had those networks in
place with regard to marijuana and heroin trafficking for many
years. And they have used those as a basis to move into
numerous communities around the Nation, particularly in areas
where Mexican workers are involved in industries like
agriculture and meat packing. So it is now common to find
traffickers from Mexico that have established themselves in
many U.S. communities.
Now, these traffickers, many of them, are illegal aliens
and they blend in very easily with the Mexican community in
these places. The vast majority of this Mexican community are
law-abiding citizens, and these traffickers simply blend in
with them and distribute huge quantities of methamphetamine.
The production level of the smaller laboratories that are
often described by us as mom-and-pop labs--the level is
relatively low, an ounce here and there. However, a large
number of these labs that we are seeing around the country
really create probably the most drastic environmental and law
enforcement concerns, and it really is a problem that has just
overwhelmed not only DEA but our State and local counterparts.
So methamphetamine, as we have heard already, is the only
drug that we know of which an addict without much chemical
expertise can make on his own, purchasing all of these things
in retail stores and basically getting the recipe off the
Internet or from friends.
Now, the cleanup of these clandestine laboratories across
the country costs DEA and other government agencies millions of
dollars. One of the Senators quoted a figure of about $2,700, I
believe. My figures are slightly different than that, but the
bottom line is DEA has spent almost $11 million over the last 2
years to clean up almost 4,000 clandestine laboratories.
Now, I would like to talk a little bit about our strategy.
Our strategy encompasses several elements. It includes
targeting and building cases against the major traffickers, not
only in Mexico but their surrogates operating in the United
States. It includes assisting State and local agencies in
making cases against those traffickers operating in their
communities and neighborhoods.
It involves partnering with State and local enforcement to
assist in training and cleanup of those laboratories. And last,
and perhaps the one that has really had somewhat of an impact,
is controlling the precursor chemicals necessary for the
production in Mexico and the United States. Thanks to this
committee and the Congress and the generous budgets that DEA
has gotten over the last several years, we have been able to
allocate an additional 287 positions and about $35 million to
methamphetamine efforts across the country over the last
several years.
Training is one place that we spend a lot of that money. We
provide clandestine laboratory safety and certification
training not only for our own agents, but for State and local
officers as well. Since 1997, we have conducted a total of 62
laboratory certification schools for 2,300, almost 2,400 DEA
agents and State and local people across the country.
I would like to talk a little bit now about the situation
as we are seeing it right now in the country. We are cautiously
optimistic, Senator, that our chemical control efforts
supported by the 1996 Act, combined with aggressive law
enforcement efforts in the local police arena--we are confident
that we are seeing the beginning of some results from there.
We are seeing a decrease in methamphetamine purity, and
particularly in the Mexican-operated super labs. And I believe
that that is perhaps a reflection of the difficulty in getting
chemicals, along with the aggressive law enforcement. But in
spite of that success, that could be fleeting, and the success
against the Mexican labs is really a different problem from the
smaller lab-based methamphetamine problem. That is going to be
something that is much, much more difficult to get a handle on.
Now, the law enforcement agencies in the Midwest and
California are reporting on this purity issue that about a year
ago they were seeing methamphetamine in the 80-percent-pure
range. And now we are seeing in most places that the Mexican
methamphetamine purity has dropped to about 30 percent. And
again I want to reiterate that I believe that is largely the
fruits of what we have been able to do as a result of the
Methamphetamine Control Act of 1996, and I thank this committee
for your support of that issue.
So, in summary, what I would like to say is that while I am
cautiously optimistic that we are making progress, I think that
some of the measures that are in these various bills can build
upon the progress that we have already made. I think that we
can use this present success and the additional measures really
as a foundation to move forward and hopefully make even more
progress in the future, thanks to your support.
I appreciate the opportunity to appear here today and at
the appropriate time would be happy to try to answer any
questions.
The Chairman. Thank you, and we appreciate it.
[The prepared statement of Mr. Marshall follows:]
Prepared Statement of Donnie R. Marshall
Mr. Chairman, Members of the Committee: I am pleased to have the
opportunity to appear before you today to discuss the growing dangers
that methamphetamine trafficking, use and abuse, and the spread of
clandestine drug laboratories, pose to the citizens of our country. It
is fair to say that methamphetamine is one of the most significant law
enforcement and social issues facing our nation today, and it has
affected specific regions of the country in a dramatic fashion.
The recent escalation of methamphetamine production and trafficking
coincided with the growing power of the trafficking organizations based
in Mexico after the arrests of the major leaders of the Cali mafia in
the summer of 1995. Methamphetamine trafficking and use have increased
exponentially over the past five years, and my testimony today will
provide the committee with information on how, where and why this has
occurred, and how federal law enforcement is working with state and
local partners across the nation to address the methamphetamine
problem.
While methamphetamine is not an entirely new problem in the United
States, about five years ago an upsurge in methamphetamine trafficking
and abuse began taking hold in many regions of the nation, starting on
the West Coast, and rapidly expanding into the Midwest and, to a lesser
extent, the Southeastern United States. DEA statistics indicate that in
1993, DEA seized a total of 218 methamphetamine labs. This total
increased to 263 labs in 1994; 327 labs in 1995; and 879 labs in 1996.
In 1997, DEA participated in the seizure of 1,451 clandestine labs, 98
percent of which were methamphetamine labs. In fiscal year 1998, DEA
seized over 1,600 methamphetamine laboratories, and to date in fiscal
year 1999, we have seized over 1,200.
Clandestine drug labs have been a concern for law enforcement since
the 1960's when outlaw motorcycle gangs began producing their own
methamphetamine in these labs and dominated the distribution of the
drug within the United States. Although clandestine drug laboratories
can also be used to produce other types of illicit drugs (i.e. PCP,
MDMA, LSD, etc.), methamphetamine has always been the primary drug
manufactured in the vast majority of labs seized by law enforcement. In
1998, 71 (4.4 percent) of the 1,627 clandestine methamphetamine labs
seized by DEA were classified by the agency as ``super labs.'' A
``super lab'' is a clandestine laboratory operation which is capable of
producing 10 pounds or more of methamphetamine in a single production
cycle, which is indicative of operation by a structured organization.
Of the 71 ``super labs'' seized by DEA nationwide in 1998, 57 of these
laboratories were seized in the State of California alone. DEA
estimates that methamphetamine ``super labs'' currently produce over 80
percent of the methamphetamine available today in the United States.
The violence associated with methamphetamine trafficking and use
has also produced a collateral impact on the crime statistics of
communities across the U.S., particularly in the western United States.
Television viewers nationwide recently watched live footage of a
paranoid methamphetamine addict who stole a tank from a National Guard
armory and went on a car crushing rampage in the San Diego area.
Another methamphetamine addict in New Mexico beheaded his son after
experiencing hallucinations in which he believed his son was Satan. In
1997, in Contra Costa County, near San Francisco, police found that
methamphetamine was involved in 447 cases of domestic violence.
Since 1994, the number of DEA related methamphetamine arrests has
increased precipitously, rising from 1,893 arrests in 1993 to 7,587
arrests in 1998, an increase of over 300 percent. Today, roughly 21
percent of all DEA arrests are for methamphetamine related drug
violations, a total only surpassed by cocaine related arrests, which
encompass roughly 45 percent of overall agency arrest totals.
methamphetamine production and trafficking
International organized crime groups based in Mexico
Today, there are two major forces fueling the methamphetamine trade
within the United States: first, the well-organized, high volume,
``super lab'' methamphetamine manufacturing and trafficking groups
based in Mexico; and second, a widely scattered series of local
methamphetamine producers, predominantly based in rural areas around
the country.
Traffickers based in Mexico have had a long history of involvement
in poly-drug production and smuggling. For years, these powerful and
violent groups produced and smuggled marijuana and heroin into the
United States, dominating the heroin trade in the Southwest and Midwest
regions of the nation. During the early 1990's, the Cali drug mafia
reached an accommodation with trafficking groups based in Mexico who
agreed to transport multi-ton quantities of cocaine into the United
States. At first, transporters from Mexico were paid in cash, but
eventually they negotiated to be paid in cocaine, which they
distributed themselves within the United States. This series of changes
in the cocaine trade, along with the arrest of the powerful Cali
leaders in 1995 and 1996, greatly strengthened the organizations from
Mexico.
The Increased power and sophistication of the Mexican traffickers
led them to seek to successfully dominate all phases of the
methamphetamine trade, from beginning to end. Because methamphetamine
is a synthetic drug created from a mixture of chemicals, traffickers
based in Mexico did not have to rely on traffickers in other nations to
provide coca or finished cocaine for distribution. These groups
initially had ready access to precursor chemicals on the international
market. These chemicals have fewer controls in Mexico and overseas than
in the United States, a fact which allowed the organizations to produce
large quantities of high purity methamphetamine in clandestine
laboratories, both in Mexico and southern California. Methamphetamine
organizations based in Mexico have developed international connections
with chemical suppliers in Europe, Asia, and the Far East, and with
these connections, they have been able to obtain ton quantities of the
necessary precursor chemicals (ephedrine and pseudo-ephedrine) to
manufacture methamphetamine and amphetamine. In recent years, with the
growth of DEA led international efforts to control the flow of bulk
ephedrine and pseudo-ephedrine, Mexican traffickers have also turned to
tablet forms of these precursors to manufacture their product and now
frequently buy their products from rogue chemical suppliers in the
United States.
The Amezcua-Contreras brothers, operating out of Guadalajara,
Mexico, head a methamphetamine production and trafficking organization
with global dimensions. Their drug trafficking organization is one of
Mexico's largest smugglers of ephedrine and clandestine producers of
methamphetamine. By exploiting the legitimate international chemical
trade, this organization holds the key to producing methamphetamine on
a grand scale. Information developed by U.S. and Government of Mexico
(GOM) investigations indicate that the Amezcua organization obtains
large quantities of the precursor ephedrine, utilizing contacts in
Thailand and India, which they then supply to methamphetamine
laboratories in Mexico and the U.S. The activities of this group have
significantly impacted a number of U.S. cities and have contributed to
the growing methamphetamine abuse problem in the U.S.
Until their arrests by the GOM in June 1998, the Amezcua
organization was directed by Jesus Amezcua, and supported by his
brothers, Adan and Luis. During 1998, all GOM charges against Luis and
Jesus Amezcua were dismissed by Mexican courts due to insufficient
evidence. Both Luis and Jesus Amezcua were then ordered released by the
courts but were re-arrested by the GOM based on U.S. provisional arrest
warrants. These U.S. provisional arrest warrants are currently the only
charges holding Luis and Jesus Amezcua. In January and February 1999,
the GOM ruled that Luis and Jesus Amezcua were extraditable to the U.S.
Both defendants have filed a judicial appeal against extradition, and
their fate is pending on the outcome of Mexican judicial rulings. On
May 19, 1999, Adan Amezcua, who was originally arrested in November
1997 on weapons charges and then rearrested in March 1999 for money
laundering violations, was released from prison. The money laundering
charges against Adan were dismissed due to a lack of evidence. In spite
of the continued incarceration of Jesus and Luis Amezcua in Mexico, the
Amezcua-Contreras trafficking organization still maintains active cells
in the United States. The center of the Amezcua's trafficking
activities in the U.S. originates in California, either as a
manufacturing point or as an initial storage site after methamphetamine
is imported from Mexico.
In addition to readily available precursor chemicals which allow
groups from Mexico, such as the Amezcuas, to produce thousands of
pounds of methamphetamine in laboratories in Mexico and California, the
methamphetamine organizations based in Mexico also have well-
established, polydrug distribution networks in place throughout our
country. Trafficking organizations from Mexico have infiltrated
numerous communities around the nation, particularly areas where large
numbers of Mexican workers are involved in the meat packing business or
other agricultural industries. It is common now to find hundreds of
traffickers from Mexico, some of them illegal aliens, established in
communities like Boise, Des Moines, Omaha, Charlotte and Kansas City,
distributing multi-pound quantities of methamphetamine.
The impact of methamphetamine trafficking on these communities has
been devastating. In Iowa, health officials expressed deep concern
about the thousands of infants who have been exposed to methamphetamine
before their births. Furthermore, an expert associated with Marshall
County Iowa's Juvenile Court Services estimated that in 1998, one third
of the 1,600 students at Marshalltown High School had tried
methamphetamine. Methamphetamine production also poses a grave problem
to the communities in which the drug is located. Several years ago,
during a major case, DEA discovered a working methamphetamine
laboratory at an equestrian center where children were taking riding
lessons. In another case, a laboratory capable of producing 180 pounds
of methamphetamine was discovered within a thousand feet of a junior
high school. This type of discovery is being made more and more
frequently by DEA and other law enforcement agencies working
methamphetamine cases.
Domestically produced methamphetamine
While the vast majority of methamphetamine available in the United
States is produced and trafficked by the well-organized groups from
Mexico, domestic production of methamphetamine by United States
citizens is also a significant problem. The production level of these
laboratories, often makeshift and described as ``mom and pop'' labs, is
relatively low; however, the large number of these labs and the
environmental and law enforcement concerns associated with their
operation, poses major problems to state and local law enforcement
agencies, as well as to DEA.
Our nation's growing methamphetamine lab epidemic can also be
attributed to the evolution of technology and the increased use of the
Internet. In the past, methamphetamine chemists closely guarded their
drug recipes; but with modern computer technology and the increasing
willingness of chemists to share their recipes, this information is now
available to anyone with computer access. Methamphetamine is one of the
only widely abused controlled substances which an addict, without
chemical expertise, can make on his own. A cocaine or heroin addict
cannot make his own cocaine or heroin, but a methamphetamine addict
only has to turn on his computer to find a recipe for the chemicals and
developmental processes required to make the drug.
Methamphetamine is, in fact, a very simple drug to produce. A user
can go to retail stores and easily purchase the vast majority of the
ingredients necessary to manufacture the drug. Items such as rock salt,
battery acid, red phosphorous road flares, pool acid, and iodine
crystals can be utilized to substitute for some of the necessary
chemicals. A clandestine lab operator can utilize relatively common
items such as mason jars, coffee filters, hot plates, pressure cookers,
pillowcases, plastic tubing, gas cans, etc., to substitute for
sophisticated laboratory equipment. Unlike Fentanyl, LSD, or other
types of dangerous drugs, it does not take a college educated chemist
to produce methamphetamine. In fact, less than 10 percent of those
suspects arrested for the manufacture of methamphetamine are trained
chemists, which may be one reason we see so many fires, explosions, and
injuries in clandestine lab incidents.
Despite the fact that the majority of these laboratories produce
relatively small amounts of methamphetamine, the proliferation of this
type of laboratory has imposed terrible burdens on law enforcement
agencies and departments in states like Missouri. In 1992, only two
clandestine lab seizures in Missouri were reported to DEA; by 1997,
Missouri was ranked the number one state in per capita methamphetamine
lab seizures. In 1998, 679 clandestine lab seizures were reported in
Missouri, tying the state for second, with Utah (Nevada was first) in
per capita clandestine laboratory seizures. In addition, the states of
Arkansas, Iowa, Oklahoma, Oregon, Kansas and Arizona each seized in
excess of 200 methamphetamine laboratories in 1998. Smaller ``mom and
pop'' lab operations are even a significant problem in California,
despite the state's high concentration of ``super labs.''
In some respects, the methamphetamine problem is synonymous with
the clandestine laboratory problem (as previously mentioned, over 98
percent of clandestine labs seized are now methamphetamine labs) and
this issue has been the focus of much media attention in recent months.
Although the methamphetamine problem and the clandestine lab problem
are both part of the same drug abuse mosaic, in reality, they are
somewhat different issues which may require a different law enforcement
response in order to successfully combat the spiraling increases in
both arenas.
The threats posed by clandestine labs are not limited to fire,
explosion, poison gas, drug abuse, and booby traps; the chemical
contamination of the hazardous waste contained in these labs also poses
a serious danger to our nation's environment. Each pound of
methamphetamine generated in a clandestine lab can result in as much as
five pounds of toxic waste, which clandestine lab operators routinely
dump into our nations streams, rivers, and sewage systems to cover up
the evidence of their illegal operations. Because of the possibility of
explosions and direct contact with toxic fumes and hazardous chemicals,
law enforcement officers who raid clandestine drug labs are now
required to take special hazardous materials (HAZMAT) handling
training. Today, the police officer who improperly disposes toxic waste
materials could be exposing himself to civil liability under the
federal Resource Conservation and Recovery Act (RCRA).
The chemical reactions that occur during the manufacture of
methamphetamine also produce chemical vapors that can permeate into the
walls, carpets, plaster, and wood of the houses and buildings in which
they are located. The cleanup of these clandestine laboratories across
the nation costs DEA and other government agencies millions of dollars
annually. The average clandestine laboratory costs approximately $3,000
to cleanup. Large laboratories can result in costs exceeding $100,000.
Such large sums of money could easily bankrupt a small sheriffs
department, which is why it is essential for these smaller law
enforcement entities to involve state and federal authorities in the
larger clandestine lab investigations during the early stages of case
development.
The size of lab does not matter when it comes to the danger level
involved in a clandestine laboratory raid. The smaller labs are usually
more dangerous than the larger operations because the cooks are
generally less experienced chemists who often have little regard for
the safety issues that arise when dealing with explosive and poisonous
chemicals. However, the size of a clandestine laboratory can be a
significant factor in the costs associated with the hazardous waste
cleanup. Larger production laboratories usually have larger quantities
of toxic chemicals, and therefore, more significant hazardous waste
disposal charges.
dea's strategy to fight methamphetamine
DEA's methamphetamine strategy encompasses several elements,
including targeting and building cases against the major
methamphetamine traffickers based in Mexico, and against their
surrogates operating in the United States today; assisting state and
local law enforcement agencies in making cases against methamphetamine
manufacturers and traffickers working in the United States; partnering
with state and local law enforcement to assist with training and
laboratory clean-up; and controlling the precursor chemicals necessary
for methamphetamine production in Mexico and the United States.
Since fiscal year 1998, due to the generous contributions of the
President and Congress, DEA has targeted over 297 positions (160
Special Agents) and $35.6 million on methamphetamine enforcement
efforts across the United States. While the majority of this funding
has been used for personnel resources, remaining funds have been used
for the purchase of clandestine laboratory vehicles, the continued
development of DEA's Clandestine Laboratory Database and the cleanup of
clandestine methamphetamine laboratories. Today, DEA provides
contracted clandestine laboratory cleanup services for DEA Special
Agents as well as state and local law enforcement personnel across the
country. Funding for this purpose is provided to the agency by the
President and the Congress through the Assets Forfeiture Fund, DEA
direct appropriation and the COPS program. In 1997, DEA provided for
the clean-up of 1,383 clandestine drug laboratories nationwide, at a
cost of $6.8 million. In 1998, this total rose to 1,919 clandestine
laboratories at a cost of $5.8 million. To date, in 1999, DEA has
provided for the clean-up of 1,812 clandestine laboratories at a cost
of $5.0 million.
dea clandestine laboratory safety/certification training
In 1987, DEA created a special training unit for clandestine
laboratory safety/certification training which is located at the U.S.
Marine Corp Base at Camp Upshur, Quantico, Virginia. This unit
originated in response to concerns from DEA management that the
agency's Special Agents and task force officers were being exposed to
hazardous, toxic, and carcinogenic chemicals while executing raids on
clandestine drug laboratories. Some DEA field offices, primarily in the
state of California, were reporting that Special Agents and officers
appeared to be suffering serious health problems as a result of both
short and long-term exposure to the chemical and toxic fumes
encountered when processing these drug laboratories. The U.S. Code of
Federal Regulations, 29 C.F.R. 1910.12, now mandates that all federal,
state, and local law enforcement officers must receive at least 24
hours of hazardous chemical handling training (specific Occupational
Safety, Health and Administration (OSHA) standards for courses and
equipment), prior to entering a clandestine drug laboratory.
Reports from DEA and state police records indicate that at least
five or six meth producers are now being killed every year from
explosions and/or fires in clandestine labs. Many more receive serious
burns or develop serious health problems from clandestine laboratory
explosions and fires. There have been reports of apartment complexes
and a $3,500,000 hotel which burned down as the result of drug lab
``cooks'' that turned into chemical time bombs. Recent years have seen
an increase in the number of injuries to untrained police officers who
investigate and/or dismantle clandestine laboratories without utilizing
the proper safety equipment.
Reports of property damage and injuries to children from drug lab
disasters have also increased throughout the nation. During 1997, the
Kansas City area fire department authorities were reporting fires, on
an almost monthly basis, that originated from clandestine
methamphetamine laboratory operations or the use of precursor
chemicals. In Independence, Missouri, the Chief of Police reported that
during the last two years, at least six individuals have been killed in
fires that resulted from clandestine methamphetamine laboratories.
Police reports from California and Oklahoma indicate an increase in
deaths from invisible poisonous phosphine gas.
In response to the U.S. Code of Federal Regulations which mandates
that all law enforcement officers must have completed a clandestine lab
safety school prior to entering a methamphetamine lab, DEA has
initiated an aggressive training schedule to increase the number of
clandestine laboratory safety schools provided to state and local
police throughout the nation. The DEA Clandestine Laboratory Safety
Program conducts its safety/certification schools at the DEA
Clandestine Laboratory Training Facility in Quantico Virginia. An
auxiliary regional training facility has also been established for the
Midwest U.S., near Kansas City. This specialized unit frequently
conducts in-service training and seminars for law enforcement groups
such as the Clandestine Laboratory Investigators Association (CLIA) and
the International Association of Chiefs of Police (IACP). In addition,
the DEA Clandestine Laboratory Training Unit provides police awareness
training seminars to law enforcement organizations across the U.S., as
well as the annual re-certification training which is mandated by 29
C.F.R. 1910.12.
Students who graduate from the DEA Clandestine Lab School in
Quantico, Virginia, are issued over $2,000 in specialized clandestine
lab safety gear. Some of the items issued include: Level III nomex
fire-resistant ballistic vests; nomex fire-resistant jackets, pants,
and gloves; chemical resistant boots; air purified respirators; combat
retention holsters; special flashlights; chemical resistant clothing
for conducting hazard assessments and processing drug labs; and goggles
to prevent eye injuries in the event a suspect throws acid or other
dangerous chemicals at law enforcement personnel. Since 1997, DEA has
conducted a total of 62 clandestine laboratory certification schools
for 2,384 Special Agents and state and local law enforcement personnel
across the country.
Today, we are cautiously optimistic that our chemical control
efforts, combined with aggressive anti-methamphetamine law enforcement
efforts in the local police arena, have been the catalyst for the
decrease in methamphetamine purity. However, success in combating the
smaller lab-based methamphetamine problem may be much, more difficult
to achieve. As previously indicated, the dawn of the Internet has
released a plethora of methamphetamine formulas for the public to
choose from, and everything that is needed to manufacture
methamphetamine can be purchased at your local department store, where
federal and state law enforcement officials have to rely on voluntary
compliance measures instituted by industry.
In recent months, several DEA offices in the Midwest and California
have reported that the purity of Mexican methamphetamine has
significantly dropped in the majority of controlled purchases and
seizures. Many law enforcement agencies in the Midwest and California
are now reporting that the previous high purity (80 percent+ range) of
Mexican methamphetamine has now dropped to less than 30 percent.
Information provided by DEA's System to Retrieve Information from Drug
Evidence (STRIDE) shows that nationally, the average purity for
methamphetamine has dropped from 60.5 percent in 1995 to 27.2 percent
in 1999.
impact of the methamphetamine control act of 1996
Without strong and innovative laws to help federal, state and local
law enforcement meet the challenges posed by methamphetamine production
and trafficking, law enforcement's mission would be all the more
difficult. One of the most important pieces of legislation developed in
our nation's ongoing fight against methamphetamine trafficking and
abuse is the Methamphetamine Control Act of 1996 (MCA), which was
developed under the leadership of Chairman Hatch and other members of
the Judiciary Committee, most prominently Senators Feinstein and Biden.
This act specifically targets the diversion of ephedrine combination
drug products and drug products containing pseudoephedrine and
phenylpropanolamine. As I noted earlier, beginning in 1996, seizures of
methamphetamine laboratories began to rise dramatically and early on,
almost all of these laboratories were using pseudoephedrine drug
products as their source of precursor material. The MCA subjected these
products to full regulatory control at the manufacturer and distributor
level, allowing us to track the production and sale of these products
nationally. It also provided specific exemptions at the retail level so
that legitimate consumers of these products were not affected.
In addition, the MCA provided the impetus for a number of major
pharmaceutical retailers to adopt voluntary measures, such as
restrictions on the volume of sales of these products, to individual
customers. The Drug Enforcement Administration and Wal-Mart have formed
a partnership to control large-scale purchases of three key over-the-
counter (OTC) products, pseudoephedrine, ephedrine, and
phenylpropanolamine, used in the clandestine manufacture of
methamphetamine and amphetamine. After meeting with DEA representatives
at a national meeting of Wal-Mart pharmacy managers in Kansas City,
Missouri, on January 16, 1997, Wal-Mart management moved to restrict
sales of these allergy/cold/diet preparations which have been diverted
from legitimate use and seized in clandestine labs throughout
California, Western, Southwestern, and Midwestern States.
Another major feature of the MCA was the requirement that mail
order distributors report their sales to individual users, to DEA on a
monthly basis. These firms had been a major source of pseudoephedrine
products for methamphetamine laboratory operators. This reporting
requirement, coupled with the fact that these firms were now required
to become registered with the DEA, has had a major impact on the
activities of these firms.
Overall, the new controls implemented through the MCA, augmented by
voluntary measures instituted by industry, have made it increasingly
difficult for large laboratory operators to obtain substantial
quantities of precursor materials domestically. In fact, while the
number of laboratories seized has continued to increase, this increase
is attributed to the growth in the number of small laboratories
producing ounce quantities of methamphetamine. Laboratories of this
size are still able to obtain sufficient cough and cold drug products
containing the necessary methamphetamine precursors at the retail
distribution level to satisfy their needs, despite the voluntary
efforts of industry.
conclusion
Methamphetamine, and other controlled substances which are produced
in clandestine laboratories provide an increasing threat to drug law
enforcement personnel as well as the citizens of our nation. The vast
power and influence of international drug trafficking syndicates,
particularly those based in Mexico, continues to grow. Their impact on
communities around our nation is devastating.
Domestically-based drug traffickers who engage in methamphetamine
production and trafficking are also a major threat to our nation's
stability. Since methamphetamine is relatively easy to produce, and
with the proliferation of information on methamphetamine production
available on the Internet, unscrupulous individuals will continue to
take part in this illegal and dangerous enterprise. Traffickers only
need $1,000 worth of chemicals to make $10,000 in methamphetamine in a
trailer, a hotel room or house in any location within the United
States.
As the number of clandestine labs operated by both internationally-
based criminal organizations and ``mom and pop,'' small, independent
groups continues to escalate, the chances of narcotics officers, or
other uniformed personnel, inadvertently encountering clandestine labs
will become more and more prevalent. In the years to come, DEA will
continue to work to improve its efforts in the methamphetamine arena to
ensure a safe future for both our law enforcement personnel dedicated
to addressing this dangerous problem as well as our citizens. I thank
you for providing me with this opportunity to address the Committee and
I look forward to taking any questions you may have on this important
subject.
Senator Biden. Mr. Chairman.
The Chairman. Yes, Senator Biden.
Senator Biden. I would like to apologize to you and the
witnesses. We are marking up a bill in the Foreign Relations
Committee and I am going to go downstairs for that. I have to
go there because I am the ranking member there. I will probably
miss the testimony, but I will be back to ask questions.
As the DEA knows, meth has made it to the East. The largest
lab in the Northeast was busted last year in little Dover, DE,
50 pounds seized. So this is a universal problem. But I do want
to apologize to the witnesses for not being here to listen to
their testimony. And I think Senator Ashcroft is probably going
to go to the same markup.
Senator Ashcroft. I am going to try and stay here until the
call comes.
Senator Biden. Well, since he has an amendment for the
markup that I disagree with, I hope he stays here the whole
time. [Laughter.]
I think you should concentrate on this, Senator, where we
agree, and I will tell you what happened at the markup.
Anyway, thank you very much.
The Chairman. Thank you, Senator Biden.
Mr. Warner, we are honored to have you here and we look
forward to taking your testimony at this time.
STATEMENT OF PAUL M. WARNER
Mr. Warner. Thank you, Mr. Chairman, and good morning
members of the committee. I want to thank Chairman Hatch for
the kind introduction. I greatly appreciate the opportunity to
testify before the committee on the critical problem of
methamphetamine and some of the steps that we are taking in
Utah to deal with this threat to public safety. I intend to
keep my oral remarks brief, and therefore I would request that
my entire statement be made a part of the record.
First, I can tell you without exaggeration that the meth
problem in Utah today is our most serious threat to public
safety. Let me provide you with just a few statistics that help
demonstrate the severity of the problem. I know, Mr. Chairman,
you are aware of many of these.
As of last week, with a little more than 2 months remaining
in fiscal year 1999, the DEA Metro Narcotics Task Force in Salt
Lake City had made 308 arrests on meth-related charges. This is
a 14-percent increase over all of fiscal year 1998 and a 34-
percent increase over fiscal year 1997. Similar trends are seen
in the number of clandestine labs seized by the task force.
Perhaps the most troubling numbers, however, relate to the
quantities of meth seized. They have increased dramatically
over the last 3 years as well. Let me emphasize that these
numbers do not include arrests and seizures made by other
Federal agencies such as the FBI. Additionally, meth abuse is
driving much of the other crime in Utah, such as burglaries and
theft. The commission of these crimes can almost invariably be
traced to the support of a meth habit. Finally, the very
existence of a meth lab in the community poses a significant
danger, as has been discussed earlier, as an environmental
hazard. Cleanup costs drain precious law enforcement resources.
Now, there are two key components to the meth problem in
Utah. The first component is the home-grown problem,
clandestine meth labs. Indeed, I am currently being told that
now Utah has the dubious distinction of having the highest per-
capita number of illegal meth labs of any State in the Union.
This part of the problem involves U.S. citizens operating
relatively small labs and producing comparatively small amounts
of very pure meth. At least 213 such labs have been taken down
in Utah so far in fiscal year 1999.
The second component of the meth problem in Utah is what we
call Mexican meth. This component of Utah's problem, and our
response to it, bares directly on controlling methamphetamine
proliferation in Utah and also throughout the rest of the
United States. Meth is being produced in large quantities in
Mexico, as has also been noted previously. Criminal aliens
enter the United States illegally and then come to Utah
bringing meth with them. Let me take a moment to describe some
of what we have been doing to address both the meth and the
criminal alien problem, which are obviously related.
First, we have created a new drug section in our office,
establishing a high priority for meth prosecutions and adding
new resources provided by Congress. This section is now staffed
with 5 attorneys, including 2 who are dedicated to OCDETF
cases. So far in fiscal year 1999, we have indicted
approximately 165 defendants. I estimate approximately 75
percent of these cases were meth-related.
In addition to these efforts within the Federal law
enforcement establishment, we have also actively supported
State and local efforts as well. For instance, a number of
defendants were charged in State court with methamphetamine
offenses as a result of our OCDETF investigations. Moreover,
Federal law enforcement in Utah is strongly supporting the
Rocky Mountain HIDTA, which in Utah is dedicated nearly
exclusively to meth cases.
The second prong of our initiative involves prosecuting
criminal alien cases. Now, I understand that this can be a
sensitive subject and that the link between these cases and the
meth problem may not be readily apparent to some. However, it
is my view that because of the prevalence of Mexican meth,
these types of cases are intimately intertwined and that we
cannot get a handle on the meth problem without also attacking
the criminal alien problem as well. We are aggressively
pursuing these cases.
Again, we are showing results. Last year, we prosecuted 313
reentry cases in Utah. The vast majority of the criminal alien
cases we prosecute involve defendants with drug-related
convictions, as well as lengthy criminal histories. Many of
these are methamphetamine-related offenses.
Finally, Mr. Chairman, if I could make a general comment on
where we go from here, either we want to confront this problem
or we don't. If we do, then adequate resources must be provided
to do the job, and I can promise you at least in Utah that if
you give us these resources, we will get the job done. I know
my fellow U.S. attorneys around the country share my commitment
to this as well.
Thank you, Mr. Chairman, for giving me this opportunity and
at the appropriate time I would be pleased to respond to
questions.
The Chairman. Thank you, Mr. Warner.
[The prepared statement of Mr. Warner follows:]
Prepared Statement of Paul M. Warner
Good morning, Mr. Chairman and Members of the Committee. And thank
you, Chairman Hatch, for that kind introduction. I have the honor of
being the United States Attorney for the District of Utah, and I
greatly appreciate the opportunity to testify before the Committee on
the critical problem of methamphetamine trafficking, its production and
abuse, as well as some of the steps we are taking in Utah to deal with
this threat to public safety.
With your permission, Mr. Chairman, I will summarize the major
points I would like the Committee to understand, and I request that my
entire statement be made a part of the record.
I have been a prosecutor for almost a quarter of a century, and I
have been a federal prosecutor for the past eleven years. Before the
President nominated me to be the U.S. Attorney for Utah, I had served
in the Utah U.S. Attorney's office as First Assistant, as Chief of the
Criminal Division, and as Violent Crimes Coordinator for the office. I
can tell you without exaggeration that the meth problem in Utah today
is the most serious criminal threat to public safety we face.
Let me provide you with just a few statistics that demonstrate the
severity of the problem.
As of last week, with a little more than two months remaining in
fiscal year 1999, the DEA/Metro Narcotics Task Force in Salt Lake City
has made 308 arrests on meth related charges. This is a 14 percent
increase over the 270 Task Force arrests for meth in all of fiscal year
1998, and a 34 percent increase over the 229 arrests in fiscal year
1997.
Similar trends are seen in the number of clandestine labs seized by
the DEA/Metro Task Force. As of last week, 212 labs had been seized in
fiscal year 1999, compared with 188 in all of fiscal year 1998 and 154
in fiscal year 1997. Again, the year-to-date figures for fiscal year
1999 are approximately 37 percent higher than all of fiscal year 1997.
The most troubling numbers, however, relate to the quantifies of
meth seized. As of last week, the DEA/Metro Task Force has seized 79.6
pounds of methamphetamine in the Salt Lake area. In fiscal year 1998,
75.2 pounds were seized. And in fiscal year 1997, only 28.9 pounds were
seized. As you can see, the amount of meth seized in the first ten
months of fiscal year 1999 is 175 percent more than in all of fiscal
year 1997. Based on a 1996 national price of $500 to $2,400 per ounce,
this translates into between $636,800 and $3,056,640 in meth seized off
our streets in the Salt Lake City metro area. And let me emphasize that
these numbers do not include arrests and seizures made by other
agencies, such as the FBI.
Make no mistake, methamphetamine manufacturing and trafficking are
not so-called ``victimless crimes''. We know by sad experience that the
drug business is always accompanied by guns and violence. Additionally,
meth abuse is driving much of the other crime in Utah, such as
burglaries and theft. For instance, our postal theft and fraud cases in
Utah have increased almost exponentially. Between January 1 and
September 1, 1998, our office indicted a total of 26 postal cases. By
comparison, between January 1 and July 22, 1999, we have already
indicted 52 such cases--twice the number in a shorter time span. These
crimes represent losses to individuals and businesses in the tens of
thousands of dollars, and the commission of these crimes can almost
invariably be traced to the support of a meth habit.
Nor is this a problem unique to my District. For instance, Postal
Inspectors in Arizona attached to the Phoenix Volume Mail Theft Task
Force have handled thousands of mail theft cases in the past several
years. These officers tell me they can only recall one or two cases
that were not meth related, and report that during searches incident to
their investigations, they invariably find meth and paraphernalia
indicating meth use.
Finally, the very existence of a meth lab in a community poses a
significant danger as an environmental hazard to that community. Clean-
up costs drain precious law enforcement resources.
Why is meth so pernicious? The overriding factors are that it is
effective, highly addictive, and perhaps most importantly, cheap. As
one of our postal theft defendants who was addicted to meth recently
told us, he could spend $20 on cocaine and be high for an hour, or
spend the same $20 on meth, and be high for a week.
There are two key components to the meth problem in Utah. While I
believe that these components certainly exist in other areas of the
country that are experiencing a serious meth proliferation problem,
they also rest on factors somewhat unique to Utah. The first component
is the home grown problem--the proliferation of clandestine meth labs.
Indeed, Utah has had the dubious distinction of having the highest per
capita number of illegal methamphetamine manufacturing operations of
any State in the Union.
This part of the problem involves U.S. citizens operating small
labs and producing comparatively small amounts of very pure meth. As I
have noted, at least 212 such labs were taken down in Utah so far in
fiscal year 1999. Meth lab establishment has been aided by the ready
availability of precursor chemicals in Utah. Fortunately, this is
beginning to change somewhat, as the legislature has taken steps to
impose sales restrictions on these precursors to reduce their
availability. This, combined with aggressive enforcement, hopefully
will begin to gradually reduce the prevalence of labs. However, we all
must recognize that as long as there is profit in manufacturing meth,
clandestine labs will continue to persist.
The second component of the meth problem in Utah is what we call
``Mexican meth,'' a term that refers not necessarily to the country of
origin but to the predominant ethnicity of the meth ``cookers.'' It
results in part from our geographic location as a convenient
transshipment point. The result is a significant number of what we call
pipeline cases. This component of Utah's problem, and our responses to
it, bear directly on controlling methamphetamine proliferation in Utah
and throughout the United States. Meth is being produced in massive
quantities in Mexico and in large labs in California and other western
states. Utah's proximity to the national border, and the convergence of
three primary travel corridors--1-70, 1-80, and 1-15--within the state
combine to make Utah uniquely situated to serve as a major
transshipment point of this Mexican meth. Unfortunately, we are finding
that much of the drug is staying in Utah and other Inter-Mountain
states as well. It is also an unfortunate fact that much of this
particular component is a direct result of illegal entry by criminal
aliens into the United States, who then come to Utah.
Let me take just a moment to describe some of what the Utah U.S.
Attorney's office has been doing to address both the meth and the
criminal alien problems, which are related. As you know, Senator Hatch,
when I took office as U.S. Attorney, I established two prosecutive
priorities. These priorities are meth and aggravated reentry
immigration cases. With the support of Main Justice and the Congress,
these initiatives are starting to bear fruit.
First, I was able to obtain two new drug prosecutors, which allowed
me to establish within the office's Criminal Division a new drug
section. Utilizing targeted resources provided by Congress and
allocated by the Executive Office for U.S. Attorneys, this section is
now staffed with 5 attorneys, including two who are dedicated to OCDETF
cases. Even while still staffing up, the results of this section can
already be seen. For instance, so far in fiscal year 1999, we have
indicted approximately 165 defendants. I estimate that for
approximately 75 percent of these defendants, meth was either the
principal controlled substance or one of the controlled substances
represented in the indictments.
As a reflection of the growing problem with methamphetamine in Utah
and the commitment by federal law enforcement to attacking the problem,
allow me to provide a comparison of defendants indicted in OCDETF cases
within the last two years. In fiscal year 1998, 38 total defendants
were indicted in the District of Utah through OCDETF investigations,
many of whom were indicted for methamphetamine offenses. By comparison,
so far in first ten months of fiscal year 1999, OCDETF investigations
have resulted in the indictment of nearly 80 defendants, and nearly all
of those defendants were indicted for a meth offense.
In addition to the efforts solely within the federal law
enforcement establishment, we have also actively supported state and
local efforts as well. For instance, a number of defendants were
charged in state court with methamphetamine offenses as a result of our
OCDETF investigations. Moreover, federal law enforcement in Utah is
strongly supporting the Rocky Mountain HIDTA initiative, which in Utah
is dedicated nearly exclusively to meth cases. Our state HIDTA
prosecutor is carrying a substantial felony caseload, and since
October, 1998, has filed over 200 state felony charges against 110
defendants. Additionally, since being cross-designated as a Special
Assistant United States Attorney in April of this year, the HIDTA
prosecutor has indicted 7 defendants in federal court on meth related
charges.
The point of relating these numbers is not only to inform the
Committee of what we are doing to tackle the meth problem in Utah, but
also to emphasize the severity of the problem. Even with the
substantial and ever increasing number of defendants and cases we are
handling, we are only scratching the surface of the problem--there is a
seeming endless supply of new cases.
The same can be said of the second prong of our initiative, which
involves aggressively prosecuting criminal alien cases. I understand
that this can be a sensitive subject, and that the link between these
cases and the meth problem may not be readily apparent to some.
However, it is my view that because of the prevalence of Mexican meth,
and the convenience of Utah as transshipment point, these types of
cases are intimately intertwined, and that we cannot get a handle on
the meth problem without also attacking the criminal alien problem as
well.
Thanks to the commitment of this Committee and the commitment of
the Attorney General, we have added personnel resources in the U.S.
Attorney's office as well as at the INS to aggressively pursue these
cases. Again, we are showing results. In fiscal year 1996, our office
indicted 80 criminal alien cases. In fiscal year 1997, we indicted 194
such cases, in fiscal year 1998, 313, and to date in fiscal year 1999,
135. The vast majority of the criminal alien cases we are doing involve
defendants with drug trafficking convictions, as well as lengthy
criminal histories. In addition to the immigration offenses, many of
these are methamphetamine related cases. Our program has been
successful. In fact, it has been so successful that other Districts
have expressed an interest in replicating it. For instance, I
understand that the U.S. Attorney for the Southern District of
California has a similar initiative in San Diego, and that it has been
successful there.
Finally, Mr. Chairman, if I could make a few general comments on
where we go from here. As I have said, we are only scratching the
surface of the meth problem that is out there. There seems to be a
bottomless supply of work for my office and for all of the federal law
enforcement community, as well as for our state and local counterparts.
My first suggestion is that now is not the time to cut back on
resources devoted to this effort. While I realize that this is not the
central focus of this hearing, I would like to note that the funding
levels provided by the Senate-passed fiscal year 2000 Department of
Justice appropriations bill for the U.S. Attorneys, the FBI, and the
DEA, among others, are significantly below the President's request.
Cuts of this magnitude would undermine Federal law enforcement efforts.
Either we want to confront this problem, or we don't. If we do, then
adequate resources must be provided to do the job. And I promise you,
at least in Utah, if you give us the resources, we will get the job
done. I know my fellow U.S. Attorneys share my commitment as well.
In conclusion, Mr. Chairman, our meth problem in Utah is severe.
And while some aspects of the problem are unique to my District, the
meth problem certainly is not. Yet, there are steps we can and are
taking to tackle the problem. It is a problem in Utah that we must
tackle on two fronts--that of the home-grown, clandestine lab, and also
the so-called Mexican meth. With sufficient--not extravagant, but
adequate--resources, federal law enforcement in partnership with our
state and local colleagues can turn the corner on the proliferation of
methamphetamine in our communities.
Thank you, Mr. Chairman, and I would be pleased to answer any
questions from the Committee.
Senator Grassley. Mr. Chairman, can I ask permission to put
in the record a statement by the Agricultural Retailers
Association on combating methamphetamine production?
The Chairman. Without objection, we will put that in the
record at the appropriate place.
Senator Grassley. Thank you.
[The statement referred to follows:]
Prepared Statement of the Agricultural Retailers Association
Mr. Chairman, and members of the Senate Committee on Judiciary, I
appreciate the opportunity to provide the views of the Agricultural
Retailers Association (ARA) on combating methamphetamine proliferation.
ARA represents nearly 1,000 member companies, operating out of more
than 7,000 locations, providing farms and other customers with plant
nutrients, crop protectants, seed, feed and other supplies. ARA members
also provide agronomic, environmental and technical services to ensure
proper management of crop inputs, including custom application of plant
nutrients such as anhydrous ammonia and crop protection products.
This statement also represents the views of the Alliance of State
Agribusiness Associations, which is composed of 19 state agri-business
organizations who represent retail farm supply, feed, fertilizer, and
grain firms across the country. The Alliance works closely with ARA on
various legislative and regulatory issues of national significance to
the retail farm supply industry.
At the outset, we would like to offer our strong support for
specific provisions in legislation (S. 1220) introduced by Senator
Charles Grassley that would make the transport of anhydrous ammonia
across state lines for the purpose of manufacturing methamphetamine, a
federal offense. In addition, S. 1220 would allocate $500,000 to
research aimed at discovering a chemical deterrent to be combined with
anhydrous ammonia that will nullify its use as a reagent in the
methamphetamine production process while maintaining its efficacy for
use in agriculture.
Clandestine drug makers obtain small amounts of anhydrous ammonia
needed by draining it from nurse tanks used by agricultural retailers
to deliver the product to the farm for use as fertilizer. This theft
and illicit use of anhydrous ammonia has posed real concerns to
retailers and their farmer customers.
Unfortunately, our industry has been unintentionally caught up with
the menacing problem of methamphetamine proliferation. The common
method for small-scale illegal production of methamphetamine involves
the use of precursor chemicals obtained from commonly available cold
medicines. Other precursor chemicals such as sodium or lithium metal
are used to provide a chemical reaction.
The other material needed is anhydrous ammonia. Anhydrous ammonia
is an efficient source of nitrogen. Nitrogen from ammonia plays an
especially important role as a constituent of chlorophyll which is
necessary for photosynthesis and plant growth. It is popular with
farmers because it is the lowest cost form of nitrogen fertilizer
available.
industry task force formed to address anhydrous theft
As a result of this growing problem, ARA, along with the State
Alliance, formed an anti-meth task force composed of agricultural
retailers, equipment manufacturers and fertilizer manufacturers in
October of 1998. The task force developed a vision to eliminate the use
of anhydrous ammonia as an ingredient in the illicit production of
methamphetamine. In considering various goals and objectives, the task
proposed the following recommendations:
1. Pursue the potential use of an additive that could be added to
make the use of anhydrous ammonia unusable or undesirable for
methamphetamine production.
2. Propose the development of a comprehensive communication and
education program to ensure that agricultural retailers and farmers
are fully aware of theft, how to recognize when a theft has
occurred, and who to contact in the case of theft.
3. Work through state alliance members to foster greater coordination
between agricultural retailers and local law enforcement agencies.
4. Serve as a clearinghouse for states in support of state
legislation that will provide liability protection to retailers
from equipment tampering and make the theft of any amount of
anhydrous ammonia a felony.
5. Provide retailers information on various mechanical and security
measures that would provide varying levels of theft deterrence.
With the development of these recommendations, the industry task
force has taken a number of specific steps. First, the task force
developed an industry white paper on the theft of anhydrous ammonia in
order to provide a better understanding of the fertilizer itself as
well as how it is used in the meth production process.
Second, the task force prepared and delivered several thousand
brochures to agricultural retailers across the country to alert them to
the signs of theft; how to respond to suspicious activity; how to deter
theft at dealerships. These brochures were also provided to farmers to
raise their awareness of the problem.
Third, the task force has worked with state and federal law
enforcement authorities. At the federal level, ARA has had continual
contact with officials from the Drug Enforcement Agency and the White
House Office of National Drug Control Policy. ARA and DEA worked
together to develop a Department of Justice ``Alert'' on how to
identify ``suspicious purchases'' made by individuals involved with
meth production.
Fourth, the task force has evaluated various types of deterrence
that could be used to enhance security at a retailer's facility. The
task force evaluated options such as lighting, fencing, and the use
valve-locking devices for anhydrous ammonia nurse tanks. While each
option provides some level of deterrence, they are also costly to
install.
Fifth, the task force gathered chemists from industry, the academic
community and law enforcement to investigate the possibility of an
additive that can be added to make anhydrous ammonia unusable or
undesirable for meth production. It is hoped that federal funding can
be obtained to further this investigation.
Finally, the task force has served as a clearinghouse for several
states, particularly in the Midwest, which have adopted tough penalties
for theft of anhydrous ammonia and/or tampering of anhydrous ammonia
equipment.
need for federal legislation
While the task force has made much progress in addressing the theft
of anhydrous ammonia, there is further effort needed to accomplish its
full objectives. While various states have adopted tougher laws to
combat theft of ammonia, these laws are not uniform from state-to-state
and have encouraged theft in a state with lesser penalties and
interstate transport to an adjoining state where it is used in the meth
production process.
To illustrate the point, we would offer an example. In late May,
three individuals from Missouri entered the state of Illinois to a
retailer facility in the southwest part of the state with the intention
of stealing anhydrous ammonia. Local law enforcement had staked out the
facility and arrested the three individuals. At the time, the state of
Missouri had enacted tougher penalties for theft of anhydrous ammonia
in 1998. A St. Louis Post Dispatch story noted that the individuals
knew that stealing anhydrous ammonia was a felony in their state but
not Illinois. [A new tougher law had passed in Illinois in early 1999
but has not yet been signed into law.] This particular facility has
been hit by thieves more than 35 times in 1999 alone.
A federal statute making the theft of anhydrous ammonia and
transporting it across state lines for purposes of illicit drug
production a felony would provide a broad deterrent for thieves who
``cherry pick'' states knowing that their penalties are less harsh.
Secondly, the pursuit of a chemical additive to deter the use of
anhydrous ammonia in the meth production process would likely be the
most effective deterrent of all options considered by the task force.
However, it is a complicated and exhaustive process to investigate and
test various alternatives.
Not only must the additive be effective in making anhydrous ammonia
unusable in the meth production process, it must also not alter the
agronomic efficacy of the product as fertilizer for agricultural
purposes. Moreover, the additive must not adversely impact fertilizer
storage or application equipment. There is an urgent need for federal
assistance if we are to be able to comprehensively pursue this
investigative process.
Iowa State University has been involved with the task force in its
initial testing of additives. The legislation proposed by Sen. Grassley
would provide for DEA to enter into a formal agreement with Iowa State
University to permit the continuation and expansion of its current
research into the development of possible additives. It would also
authorize $500,000 for DEA to carry out the agreement.
summary
Mr. Chairman, we appreciate the Committee's strong interest in
developing appropriate legislation that will effectively combat the
proliferation of methamphetamine in our cities and small rural
communities. We are hopeful that the legislation will include the above
provisions that will stop the theft of anhydrous ammonia and resolve
this growing problem.
Again, thank you for the opportunity to express our views. We stand
ready to respond to any questions of you and Committee members.
The Chairman. Ms. Kypridakes, we are happy to have you
here, honored to have you here, and look forward to your giving
us your expertise in this area.
STATEMENT OF KATINA KYPRIDAKES
Ms. Kypridakes. Thank you, Mr. Chairman. Chairman Hatch and
members of the committee, first, thank you for allowing me to
bring information that I hope is pertinent and helpful to the
purpose of your hearing today. The information I will give you,
which I call the California perspective, is, because of
California's unique, albeit dubious position as a source
country for methamphetamine, somewhat predictive of the ever
changing face of this problem.
It is a perspective which has been molded from the
collective State law enforcement consciousness that displays
California as both a negative and positive example for the
Nation, negative insofar as our State continues to lead the
Nation in clandestine laboratory seizures, in turn providing an
ongoing source of methamphetamine trafficked across the
country, and positive as the State has led the national fight
against methamphetamine, while at the same time continuing to
bear the brunt of the illegal drugs' destructive effects.
Before looking at the impact of the drug not only in
California but on the Nation as a whole, I would like to
briefly touch on some of the history of not only
methamphetamine but amphetamine. This once obscure drug is now
recognized across the United States as one of the most
destructive illegal drugs ever known. Yet, despite its recent
notoriety nationally, methamphetamine has a long and ugly
history in California.
Since California's first methamphetamine lab seizure in
1967, law enforcement's fears about this drug were confirmed
then and continue to be confirmed at what was then brought to
light from the Haight-Ashbury Free Clinic, where some of the
pioneering work in drug abuse recognition and counseling was
initiated.
What was originally a ``hippie'' counterculture environment
producing methamphetamine proceeded to become predominantly
controlled by outlaw motorcycle gangs such as the Hell's
Angels. The Hell's Angels then steadfastly maintained control
of the manufacturing and distribution of large quantities of
this drug until the mid-1980's, when gradually law enforcement
officials in California began seeing Mexican laboratory
operators and multiple-pound quantities of the drug appear.
Gradually, over a period of 5 to 10 years during the
1980's, several things occurred which gave the Mexican cartels
growing dominance in the methamphetamine industry. First, the
aggressive and violent nature of the Mexican traffickers
literally forced and out-priced the motorcycle groups out of
the production business. Secondarily, cheap and sometimes
coerced Mexican labor from across the border was imported into
California to run large-scale commercial laboratory operations.
Once law enforcement authorities caught on to the illegal
use of chemicals which were being routinely used, strict
regulation packages were enacted by California which closely
regulated and monitored precursor chemicals. At the same time,
however, Mexico had no, and continues to have no precursor
chemical regulations of their own. Hence, necessary chemical
precursors for the manufacture of methamphetamine began flowing
across the Mexican border, mixed in with other industrial
chemicals used for legitimate production of goods and services.
Telling you a little bit about the problem and what we see
today, labs are predominantly of--what we find today are
predominantly the ephedrine and pseudoephedrine reduction type,
whose product is six times stronger than the phenyl-2-propanol
method, or P2P labs which were once operated by outlaw
motorcycle gangs.
What has evolved over the past 10 years in California is
that law enforcement officers see primarily two very distinct
kinds of laboratories. The first type is, as has been
previously noted here, the industrial size or the super labs
capable of producing 5 to 10 times the amount of
methamphetamine that has been routinely produced by
conventional drug laboratories of the Hell's Angels.
From these super labs or these more commercial
laboratories, if you will, run exclusively by and for Mexican
drug trafficking organizations, our Bureau estimates that just
these labs alone are capable of producing over $2 million per
week in methamphetamine. Some drug trafficking organizations go
so far as to specialize in facilitating the production of meth
by providing laboratory sites complete with lab apparatus.
While routinely producing approximately 15 pounds per cook,
these laboratories could easily produce up to 500 pounds if
they wanted to produce that.
These organizations have developed distribution of their
product by using the already established distribution networks
for heroin, cocaine and marijuana. And as is shown in the chart
provided to you in my written testimony, in 1998 the Bureau of
Narcotic Enforcement seized 1,006 laboratories. 161 of these
were in the category of a super lab. The methamphetamine
produced by these 161 labs exceeded all of the methamphetamine
produced by the remaining 845.
The second type of laboratory which is being encountered
produces far less than one pound per cook. In most instances,
these stovetop or mom-and-pop operations produce anywhere from
2 to 4 ounces of methamphetamine. Unfortunately, these
laboratories account for 75 percent, or in our case 755 of our
1,006 seizures. While producing a relatively small amount,
these laboratories are the most volatile and harbor the most
violent individuals.
Because they carry out their illegal activity having little
background and/or training, not only are they unaware of the
dangers associated with what they are doing, but if they do
know, they simply don't care. And I would digress from my
statement at this point to simply say that we need to keep in
mind that many of these individuals receive their information
on how to carry out this activity through the Internet or by
word of mouth from other individuals. By purchasing commonly
used household chemicals and things readily available, they are
not breaking the law. So I commend the efforts in terms of
advertising and any publicly acquired information on how to
carry out this illegal activity.
These laboratories are mostly commonly found in homes,
trailers, motel rooms, and apartments, and are the ones most
often involved in accidental fires and explosions and are most
apt to have children present. With respect to the volatility,
again as pointed out previously, these chemicals are extremely
dangerous alone and even more volatile when used in combination
by people who don't know what they are doing.
In 1998, 208 of the 1,006 laboratories seized by the Bureau
of Narcotic Enforcement had 401 children present. This
unfortunately demonstrates the insidiousness of
methamphetamine. Everyone who uses meth has the potential to
become addicted, and every methamphetamine addict has the
potential to become a methamphetamine manufacturer. These
cookers will be added to the numbers of small producers who
live next door to you and to me, and perhaps are operating next
door to an elementary school. They will produce just enough to
maintain their habit and perhaps a little more to sell to their
friends, thereby enabling this insidious activity to continue.
In their quest, we can only hope that they do not harm any of
us or any other innocent bystanders.
The violence component cannot be stated enough. Abused for
its stimulant effects, at therapeutic and slightly higher
dosage the drug promotes feelings of euphoria, increased self-
esteem, self-confidence, and feelings of power and importance.
High doses--I won't go into a lot of detail here, as I see the
red light is on, but there are three types of users, as the
treatment community tells us--the low-intensity users, binge
users, and high-intensity users.
These people at the binge and high-intensity use go through
4- to 24-hour phases of ingesting additional drugs and
perpetually rushing, tweaking and crashing. They experience
extreme weight loss, aggression, toxic psychosis, and other
physical effects which can ultimately lead to stroke or heart
attack.
One of the other issues which is mentioned in the bill and
which is of critical importance to those of us who work in law
enforcement is what happens to the environment. Drug agents
have discovered thousands of drug laboratories in locations
causing incalculable damage to the environment and potential
and actual damage and danger certainly to California citizens,
or anywhere else in the country where these are encountered.
In most clandestine drug laboratories, as Senator Feinstein
pointed out, 6 pounds of toxic and often lethal chemical waste
is left at the laboratory site for every pound of
methamphetamine produced. Since these sites are covert, the
operators attempt to hide the visible signs. Toxic residues are
most often buried in rural areas. They are flushed down
toilets, however, in residential areas and they go into city
water systems and they are piped into nearby streams and lakes.
Last year, the State of California Department of Toxic
Substance Control spent well over $8 million just in California
to clean up the toxic waste from clandestine drug laboratories.
While this was once a problem localized to remote or rural
areas, dumping of toxic waste from lab activity is now an urban
problem as well, with so many small stovetop operations.
One should remember, however, that these expenditures are
only for gross contaminant removal. Site remediation, which
most of us envision as complete toxic removal, is never
accomplished because of the exceptional cost. What this means
is that many businesses, dwellings, hotels, and national parks
should not be reinhabited unless they are completely
demolished, removed, and reconstructed. However, this rarely
happens. Most unfortunate is the government's inability to
recover the costs associated with these tasks because of weak
environmental laws related to illegal drug activity.
Just to touch a little bit on some of the emerging trends
in speaking about the environmental impact, as was pointed out
by Mr. Marshall and in demonstrating the clandestine lab
activity, I won't go into examples because I believe that we
have all heard those examples numerous times before and I can
only express the dangerousness of having to deal in clandestine
laboratories.
But I think that certainly what was demonstrated here
earlier points out the need for adequate funding and that that
be made available for cleaning up clandestine laboratories, and
that law enforcement be appropriately and adequately trained
and equipped to investigate as well as seize clandestine
laboratories.
I think it is important to talk about one of the critical
emerging trends, and that is the illegal production now of
amphetamine. Amphetamine, like methamphetamine, is a potent
synthetic stimulant sold as a powder and currently widely
available in Southern California. Amphetamine is often
manufactured because methamphetamine cooks cannot obtain the
precursor chemicals necessary to manufacture meth.
The chemical most often selected is phenylpropanolamine, or
PPA. When used in the manufacturing process, it results in the
production of amphetamine rather than meth. As domestic
controls of methamphetamine precursors, particularly ephedrine
and pseudoephedrine, tighten, it is likely that amphetamine
production will increase. Amphetamine is marketed by illegal
importers, distributors and others as meth or as a meth
substitute. The drug traffickers don't make a distinction
between the meth and the amphetamine and often substitute it
when they can't produce the meth.
Further, recent medical research appears to disprove the
long-held belief that there is a significant difference in the
effect on the central nervous system between amphetamine and
methamphetamine. This information, along with difficulties in
securing precursors to manufacture meth, seems to confirm that
there is, in fact, an increase in the amount of amphetamine
being produced. Increasingly, over the past 2 to 3 years what
were ultimately documented to be amphetamine seizures were
originally suspected to be methamphetamine.
Further complicating that particular issue of the
amphetamine and encouraging the switch from methamphetamine to
amphetamine is the sentencing disparity between amphetamine and
methamphetamine. Substantial gaps remain in Federal law that
prevent an effective Federal law enforcement response to the
serious of meth and amphetamine distribution and use.
While penalties for meth cases have been increased
substantially in recent years, there has been no similar change
for amphetamine. Amphetamine distribution and use create the
same harms as methamphetamine distribution, and penalties need
to be increased accordingly. Strong Federal laws are needed on
this particular issue because State prosecutions for these
offenses are often hampered by laws which do not require
incarceration on conviction and by inadequate forensic
laboratory resources. Failure to enact sentencing guidelines
for amphetamines which correspond to meth will simply encourage
amphetamine production and serve to substitute one evil for
another.
In closing, let me leave you with a few thoughts. In 1998,
BNE seized 1,006 of those 1,655 clandestine laboratories by all
State law enforcement officials in California. During that same
period, DEA seized 1,654 labs nationwide. I think that puts the
nature of the problem in California in perspective nationally.
For the first time, there was no State in which there was
no clandestine lab activity noted by either DEA or some other
State law enforcement entity. Incomplete statistics for the
first 5 months of 1999 document that of the 470 clandestine
labs seized by BNE, in 103 of those clandestine laboratories we
found 180 children. In other words, children were present in
nearly one quarter of all of our lab seizures so far, children
who have not only been contaminated, but very likely abused in
some manner.
And we can also be sure in all of those 470 laboratories
that they produce toxic waste requiring removal, for which we
will not be reimbursed. Methamphetamine and/or amphetamine is
not only readily available in every major city and country
hamlet, but there is also a very good chance it is now being
illegally produced there as well. In the methamphetamine
manufacturing trade, every American citizen suffers a loss in
public safety, the environment, public health, and the
financial drain that drug manufacturing, distribution, and
abuse place on all of our social and governmental systems.
We must continue our efforts both at the State and Federal
levels to seek appropriate ways to not only punish those who
seek to harm our lives and freedoms, but in so doing to also
protect the innocent from further harm. We must deepen our
resolve and correct those things which we can, in hopes that in
so doing we will move closer to successfully combating this
problem which we must all face as a Nation. No one State or law
enforcement agency can do this alone.
Mr. Chairman and members of the committee, thank you for
allowing me to take this time to present my information to you.
I will be happy to answer any questions you have or to provide
you with any other information.
The Chairman. Thank you very much.
[The prepared statement of Ms. Kypridakes follows:]
Prepared Statement of Katina Kypridakes
Chairman Hatch and members of the committee, first, thank you for
allowing me to bring you information that I hope is pertinent and
helpful to the purpose of your hearing. The information I will give to
you today, which I call the California perspective, is, because of
California's unique, albeit dubious, position as a ``source country''
for methamphetamine, predictive of the ever changing face of this
problem. It is a perspective molded from the collective state law
enforcement consciousness that displays California as both a negative
and positive example for the nation. Negative in so far as our state
continues to lead the nation in clandestine laboratory seizures, in
turn providing an ongoing source of methamphetamine trafficked across
the country; and positive as the state has led the national fight
against methamphetamine, while at the same time continuing to bear the
brunt of the illegal drug's destructive effects. Before looking at the
impact this drug has had, not only on California, but the nation as a
whole, perhaps it will be helpful to briefly review the history of
methamphetamine and amphetamine.
history
This once obscure drug is now widely recognized across the United
States as one of the most destructive illegal drugs ever known. Yet,
despite its somewhat recent notoriety nationally, methamphetamine has a
long, ugly history in California. Since California's first
methamphetamine lab seizure in 1967, law enforcement's fears about this
drug were confirmed by the Haight-Ashbury Free Clinic, where some of
the pioneering work in drug abuse recognition and counseling was
initiated. California's first methamphetamine drug laboratory was
seized in 1967 in Santa Cruz, California. Shortly thereafter,
methamphetamine production moved from a ``hippie'' counter-culture
environment to one controlled predominantly by outlaw motorcycle groups
such as the Hells Angels. The Hells Angels steadfastly maintained
control of the manufacturing and distribution of large quantities of
methamphetamine until the mid-1980's, when, very gradually, law
enforcement officials in California began seeing Mexican laboratory
operators and multiple-pound quantity distributors appear on the
illegal drug scene. Then, gradually, over a period of five to ten
years, several things occurred which gave the Mexican cartels growing
dominance in the methamphetamine industry.
First, the aggressive and violent nature of Mexican traffickers
literally forced and out-priced the motorcycle groups out of the
production business and almost strictly into the mid- to lower-scale
distribution. Secondarily, cheap and sometimes coerced Mexican labor
from across the border was imported into California to run large-scale
commercial laboratory operations under the direction of several key
personnel. Chemical precursors, which were once freely sold by the U.S.
chemical industry for legitimate use in manufacturing, were also being
sold to illicit drug manufacturers. Once the law enforcement
authorities caught on to the illegal use of these chemicals, strict
regulation packages were enacted by California which closely regulated
and monitored precursor chemicals. At the same time, however, Mexico
had no, and continues to have no, precursor chemical regulations.
Hence, the necessary chemical precursors for the manufacture of
methamphetamine began flowing across the Mexican border, mixed in with
other industrial chemicals used for legitimate production of goods and
services.
Why, you might ask, don't Mexican entrepreneurs produce the drug in
Mexico, where it is safer, rather than risking apprehension in the
United States, where there are a clearer set of legal restrictions
against such activity? Simply, because drug production and distribution
are nothing more than a business, and just as the cartels responsible
for the manufacture of cocaine and heroin keep their production
facilities close to the opium poppy or coca fields, the cartels
responsible for the manufacture of methamphetamine keep their
production facilities, i.e., the clandestine drug laboratory, close to
the chemical sites in rural areas where it can be produced in the
United States close to the market. This way, only the raw materials
(precursors), which carry a much less stringent penalty, need be
smuggled into our country. The methamphetamine is then marketed in a
method not requiring smuggling activity and allowing it to be
manufactured almost literally in the backyard of the customer.
the problem
Today, labs are predominantly the ephedrine/pseudoephedrine
reduction type whose product is six times stronger than the P2P labs
once operated by outlaw motorcycle gangs. What has evolved, over the
past ten years is that California law enforcement officers see
primarily two very distinct kinds of labs. The first type are
industrial-size ``super laboratories,'' capable of producing five to
ten times the amount of methamphetamine that had been routinely
produced by conventional drug laboratories operated by Hells Angels or
other outlaw motorcycle groups. From these ``super labs,'' or
commercial laboratories, run exclusively by and for Mexican drug
trafficking organizations, our bureau estimates that just these labs
alone are capable of producing over two million dollars per week in
methamphetamine. Some drug trafficking organizations go so far as to
specialize in facilitating the production of methamphetamine by
providing laboratory sites complete with lab apparatus. While routinely
producing approximately 50 pounds per ``cook,'' these laboratories
could easily produce up to 500 pounds of methamphetamine per day. These
organizations have developed distribution of their product by using the
already established distribution networks for heroin, cocaine, and
marijuana. In 1998, the Bureau of Narcotic Enforcement seized 1,006
laboratories, 161 of which were in this category of laboratories. The
methamphetamine produced by these 161 laboratories exceeded all of the
methamphetamine produced by the remaining 845.
The second type of laboratories being seized are producing less
than one pound per cook. In most instances these ``stove top''
laboratories only produce 2-4 ounces of methamphetamine per cook.
Unfortunately these laboratories account for 755, or 75 percent, of the
1,006 laboratories seized by the Bureau of Narcotic Enforcement last
year. While producing a relatively small amount of methamphetamine,
these laboratories are the most volatile and harbor the most violent
people. Because the individuals carrying out the illegal activity have
little background and/or training, not only are they unaware of the
dangers associated with what they are doing, if they do know they
simply don't care. These laboratories, commonly found in homes,
trailers, motel rooms and apartments, are the ones most often involved
in accidental fires and explosions, and are those most apt to have
children present. In 1998, 209 of the 1,006 laboratories seized by the
Bureau of Narcotic Enforcement had 401 children present. This,
unfortunately, is the insidiousness of methamphetamine. Everyone who
uses methamphetamine has the potential to become addicted, and every
methamphetamine addict has the potential to become a methamphetamine
manufacturer. These ``cookers'' will be added to the numbers of small
producers who live next door to you and me, or next to a school,
producing just enough to maintain their habit and perhaps a little more
to sell to friends thereby enabling the illegal activity to continue.
In their quest, one can only hope they don't harm innocent bystanders.
the violence component
Methamphetamine is a purely synthetic, potent stimulant of the
amphetamine class of drugs. Abused for its stimulant effects, at
therapeutic or slightly higher doses, the drug promotes feelings of
euphoria, increased self-esteem and self-confidence, and feelings of
power and importance. High doses or chronic use have been associated
with increased nervousness, irritability and paranoia, which in turn
leads to hyperactive behavior and dramatic mood swings. Heavy users
often exhibit extreme belligerence and paranoia. Withdrawal from high
doses can produce severe depression. Treatment professionals define
three amphetamine/methamphetamine user groups: low-intensity,
``binge,'' and high-intensity users. The low-intensity users may take
methamphetamine to lose weight or to stay alert and awake, while the
second group, ``binge'' users, follow an initial rush with repeated
dosing to maintain the original ``high of methamphetamine and
ultimately enter a phase some clinicians call ``tweaking''--a 4 to 24
hour phase in which a user need not, ingest any additional drug, but
remains high and exhibits little control over his or her behavior. This
``tweaking'' phase, which some addicts describe as nearly intolerable,
poses the greatest risk to family, friends, the public and police
because of the occurrence of rage, aggression, violence, paranoia,
anxiety, hallucinations, and hyperactivity. The third group, high-
intensity users, engage in an almost perpetual cycle of rushing,
tweaking, and crashing. These users may experience extreme weight loss,
aggression, toxic psychosis (including paranoia and hallucinations),
stroke, and heart attack.
Law enforcement, paramedics, doctors and nurses are placed in
dangerous and volatile situations every time they come in contact with
a methamphetamine user. These professionals, who are trying to help the
user, are transformed in the user's paranoid mind as threats. The
result of this paranoia is a violent, defensive reaction against these
persons trying to do their job. Most often the users exhibit the most
violent behavior against their spouses and their children. Stories
abound of users who have repeatedly physically abused their spouses,
physically and sexually abused their children, mothers who allowed
their children to starve to death, or to be burned in lab fires or
explosions. In addition, there are the random acts of violence
sometimes against perfect strangers. Often, if the user doesn't harm
anyone around him, he or she winds up killing or maiming him or
herself.
the environment
Drug agents have discovered thousands of drug laboratories in
locations causing incalculable damage to the environment and potential
and actual damage and danger to California's citizens. In most
clandestine drug laboratories, six pounds of toxic and often lethal
chemical waste are left at the laboratory site for every pound of
methamphetamine produced. Since these sites are covert, and the
operators attempt to hide the visible signs and smells of a drug
laboratory, the toxic residues are most often buried in rural sites;
flushed down the toilets at residential sites to go into city water
systems; or piped into nearby streams and lakes. Last year the State of
California, Department of Toxic Substances Control spent well over $8
million to clean up the toxic waste from clandestine drug laboratories.
While this was once a problem that was localized to remote or rural
areas, dumping of toxic waste from clandestine laboratory activity is
now an urban problem with so many small ``stove top'' operations
disposing their waste in the sink or down the toilet. One should
remember that these expenditures are only for gross contaminant
removal. Site remediation, which most of us envision as the complete
toxic removal, is never accomplished because of the exceptional cost.
What this means is that many businesses, dwellings, hotels, and
national park areas should not be re-inhabited unless they are
completely demolished, removed, and reconstructed. This rarely happens.
More unfortunate is the government's inability to recover costs
associated with these tasks because of weak environmental laws related
to illegal drug activity.
While this may not appear to directly affect our daily activity, I
would ask you to consider the following:
Many laboratories are set up in motel, rooms where a
``cook'' occurs overnight, and the next day the lab is gone.
The maid enters the room in the morning to clean, finds a mess,
which is usually unrecognizable to her as hazardous waste, and
so she vacuums the rug and uses common household chemical
detergents to clean. The room is now ready for rental to,
possibly, an unsuspecting family with children who will spend a
night in this now contaminated motel room. That evening or the
next morning, the family could awaken with watering eyes,
burning throat and lungs, and disorientation due to exposure to
the contaminants permeating the room.
A lab in Northern California next to a prominent
recreational area was discovered because of the strange and
rapid deaths of most of the trees along the riverbanks. Their
demise was traced to the seepage of exceptionally toxic
chemicals from a clandestine drug laboratory.
Another drug laboratory located in Central California
leached thousands of gallons of toxic chemicals into the Merced
River. The Merced River runs through Yosemite National Park.
San Francisco agents, assisting in a probation search,
discovered and seized a fully operational methamphetamine
laboratory in the middle of its production process. A search
warrant for the entire residence was served, and agents found
other chemicals and glassware consistent with clan lab
manufacturing. Also discovered was a bomb. The residence was
located one-quarter mile from a major coastal oil refinery.
Other equally alarming situations are too numerous to list in this
testimony but are available upon request.
emerging trends
Just as we have seen a number of changes over the years in drug
trafficking, some new trends appear to be emerging in the illegal
manufacturing of methamphetamine. One of the most troublesome of these
is the increase in the number of amphetamine incidents, both in illegal
production and product seizure. Amphetamine, like methamphetamine, is a
potent synthetic stimulant which can be sold as a powder and which is
currently widely available in Southern California. Amphetamine is often
manufactured because methamphetamine ``cooks'' cannot obtain the
precursor chemicals necessary to manufacture methamphetamine, and they
therefore select other precursor chemicals. The chemical most often
selected is phenylpropanolamine (PPA), which, when used in the
manufacturing process, results in the production of amphetamine, rather
than methamphetamine. As domestic controls of methamphetamine
precursors, particularly ephedrine and pseudoephedrine, tighten, it is
likely that amphetamine production will increase. Amphetamine is
marketed by illegal importers, distributors, and others as
methamphetamine or a methamphetamine substitute. Drug traffickers do
not make a distinction between methamphetamine and amphetamine and
often substitute amphetamine for methamphetamine without notifying the
customer, consumer or transporter. Further, recent medical research
appears to disprove the long-held belief that there is a significant
difference in the effect on the central nervous system between
amphetamine and methamphetamine. This information, along with
difficulties in securing precursors to manufacture methamphetamine,
seems to confirm that there is in fact an increase in the amount of
amphetamine being produced. Increasingly over the past two to three
years, what were ultimately documented to be amphetamine seizures were
originally suspected to be methamphetamine. While the general trend in
the number of seizures of amphetamine since 1996 has been downward,
there have been a significant number of amphetamine seizures in the
last quarter of 1998 and the first quarter of 1999. As precursor
chemicals used to manufacture methamphetamine become more difficult to
obtain, some manufacturers will shift over to the manufacture of
amphetamine using phenylpropanolamine (PPA). PPA is easier to obtain,
particularly because it appears in more commercial over-the-counter
products than does pseudoephedrine or ephedrine.
Further complicating this issue, and encouraging the switch from
methamphetamine to amphetamine, is the sentencing disparity between
amphetamine and methamphetamine. Currently, substantial gaps remain in
federal law that prevent an effective federal law enforcement response
to the serious problem of methamphetamine and amphetamine distribution
and use. While penalties for methamphetamine cases have been increased
substantially in recent years, there has been no similar change for
amphetamine cases. Amphetamine distribution and use create much the
same harms as methamphetamine distribution and use, and penalties need
to be increased accordingly. Strong federal laws are needed on this
particular issue because state prosecutions for these offenses are
often hampered by laws which do not require incarceration on conviction
and by inadequate forensic laboratory resources. Failure to enact
sentencing guidelines for amphetamine which correspond to
methamphetamine will simply serve to encourage amphetamine production
and serve to substitute one evil for another.
In closing, let me leave you with a few thoughts. In 1998 the
California Bureau of Narcotic Enforcement seized 1,006 of the 1,655
documented clandestine laboratories seized by all law enforcement
agencies in the state. During that same period the Drug Enforcement
Administration seized 1,654 clandestine laboratories nationwide, and
for the first time there was no state in which there was no clandestine
laboratory activity noted by either the Drug Enforcement Administration
or state law enforcement. For the first five months of 1999 there have
been 470 clandestine laboratory seizures by the Bureau of Narcotic
Enforcement. In 103 of those labs we found 180 children. In other
words, children have been present in nearly one-quarter of all lab
seizures--children who have been not only contaminated, but very likely
abused in some manner. And we can be sure all 470 laboratories in
California produced toxic waste requiring removal for which we will not
be reimbursed. Methamphetamine and/or amphetamine is not only readily
available in every major city and country hamlet, but there is also a
very good chance it is now being illegally produced there as well.
In the methamphetamine manufacturing trade, every American citizen
suffers a loss in public safety, the environment, public health, and
the financial drain that drug manufacturing, distribution and abuse
places on all of our social and governmental systems. We must continue
our efforts, both at the state and federal level, to seek appropriate
ways to not only punish those who seek to harm our lives and individual
freedom, but in so doing to also protect the innocents from further
harm. We must deepen our resolve and correct those things which we can
and hope that in so doing we will move closer to successfully combating
this problem which we must all face as a nation. No one state or law
enforcement agency can do this alone.
Mr. Chairman and Members, thank you for allowing me to take this
time to present my information to you. I will be happy to answer any
questions you have or provide you with any other information you deem
appropriate. Again, thank you.
The Chairman. Sheriff Doerge, we will turn to you now.
STATEMENT OF RON DOERGE
Mr. Doerge. Thank you, Mr. Chairman and Senator Ashcroft,
for this opportunity. I hope to bring you a view from the local
front lines. Much of the equipment you see here we deal with
many times. We have made 15 drug raids on methamphetamine labs
in my county this year alone, wearing equipment just like that.
Apparently, that one number in Missouri is from Newton County
last year. We had a super lab in Newton County last year.
I am the Chairman of the Southwest Missouri Drug Task
Force, representing four counties, which is approximately 2,500
square miles of southwest Missouri. Our members are alarmed at
the escalation of hundreds of small, clandestine
methamphetamine labs in remote areas of our counties. There is
a growing trend among drug manufacturers to switch from bathtub
crank operations in small towns and large cities to riverside
cooks and roadside cooks. And the riverside cooks and roadside
cooks are in remote areas and they offer concealment and dump
sites for methamphetamine sludge and waste.
In the first 6 months of this year alone, we have arrested
numerous meth manufacturers who have led us to dump sites. In
one case, in mid-May, a 17-year-old was arrested along with his
natural parents who had taught him to cook methamphetamine.
They were arrested at their residence in the small town of
Seneca, MO, where they were cooking methamphetamine at the time
of the arrest. Information was obtained that this trio had
dumped large amounts of sludge and waste several times in Big
Lost Creek, which is just 2 miles above the town they lived in.
Additionally, they led investigators to sites in Grove, OK,
at a Boy Scout camp where they had completed the cooking
process 3 times in a 48-hour period. They left this site
riddled with syringes, paraphernalia, sludge and waste strewn
about the area. This group has cooked and dumped waste in many
other locations, including Table Rock Lake, and Stockton Lake,
both in southwest Missouri.
As another example of danger to our children from meth
labs, on July 3, in Newton County, we conducted a raid at a
residence in Joplin, MO. Three individuals were arrested and
charged with methamphetamine manufacture. By the way, we had
arrested them the November before; they were repeat offenders,
which most of these people are we are dealing with over and
over again. And it was discovered the sludge and waste from
that operation was being dumped 3 feet from the Stapleton
Elementary School playground.
Task Force members believe waste is being dumped in many
sites throughout our counties everyday, and the effects on our
environment, particularly the quality of our drinking water,
will be catastrophic if allowed to continue. Local members and
agencies of our Task Force are struggling to store hazardous
materials seized in these drug labs in our enforcement areas.
Often, chemical trucks have to travel long distances, over 100
miles, to Joplin, and that is the large labs.
But many times, the truck cannot respond to smaller
operations and it is left to local agencies to attempt to store
the chemicals seized in these operations. Often, the chemicals
are placed in evidence lock-ups, leading to many mishaps. In
Newton County alone, 5 officers this year have been overcome by
fumes from evidence.
The adverse impact of these operations is not only
hazardous to officers, but anyone swimming or fishing in our
streams, lakes and farm ponds--and farm ponds are being used
more and more--or anyone drinking our water. The operations
certainly have affects on our children, as we have pointed out.
We realize the Drug Enforcement Administration is
overwhelmed with calls for assistance from local agencies and
cannot respond to all requests. Therefore, we seek help in
expanding the resources we have available to us through the
Drug Enforcement Administration and HIDTA and the continued
support and expansion of drug task force grants which have been
extremely successful in our remote areas. We, however, need
additional undercover officers and resources to continue to
wage a war that is primarily being fought in the rural areas of
our State.
In addition to these recommendations we have already made,
our Task Force respectfully requests your help in augmenting
the chemical response teams so that they might arrive in a
timely manner. We also ask that you eliminate methamphetamine
recipes, ingredients, and instructions for manufacturing on the
Internet. By the way, I have an example of that here. This was
taken off the Internet at one of our local libraries by a 16-
year-old, in his own handwriting, in living color, if you would
like to see that.
We hope to increase the penalty for drug manufacturing, and
also in some cases the sale of certain chemicals. We also
request the opportunity for stronger prosecution--we are
dealing, as I said, with those repeat offenders over and over
again--and reduced suspended sentences because so many of these
are pled down over and over again and we keep seeing the same
people, increased jail time for repeat offenders, and create
new harsh laws dealing with methamphetamine manufacturers who
are poisoning our environment.
In closing, the problem will not be controlled until it
becomes so dangerous and so costly to manufacture and sell
drugs that only the most desperate will attempt it. This is the
view of our Task Force. Nothing deters crime like the certainty
of punishment. And I have submitted, as I said, several
examples of how this can be taken off the Internet, and in that
one case in particular we were very concerned that they went to
our local library. And this wouldn't print out, but he had the
time to take this down. And as you can see, there are stains on
this material and that was because it was used many times in
the manufacture of methamphetamine by that 16-year-old boy.
Thank you.
The Chairman. Well, thank you, Sheriff.
[The information of Mr. Doerge follows:]
Newton County Sheriff's Department and Jail,
Neosho, MO, July 26, 1999.
The Honorable Orrin G. Hatch,
Chairman, Senate Judiciary Committee, Washington, DC.
Dear Chairman Hatch and Committee Members: As Chairman of the
Southwest Missouri Drug Task Force representing four counties, and the
cities and towns therein, comprising approximately 2500 square miles of
Southwest Missouri, our members are alarmed at the escalation of
hundreds of small, clandestine methamphetamine labs in remote areas of
our counties. There is a growing trend among drug manufacturers to
switch the ``bathtub crank'' operations in small towns to the
``riverside cooks''. These roadside and riverside ``cooks'' are in
remote areas as they offer concealment and dump sites for
methamphetamine sludge and waste.
In the first six months of this year alone, we have arrested
numerous meth manufacturers who have led us to ``dump'' sites. In one
case in mid-May, a 17 year old was arrested along with his natural
parents who had taught him how to cook methamphetamine. They were
arrested at their residence in the small town of Seneca MO., where they
were cooking methamphetamine at the time of the arrest. Information was
obtained that this trio had dumped a large amount of sludge and waste
several times in Big Lost Creek, two miles above the town they were
living in. Additionally, they had led investigators to a site in Grove,
OK at a Boy Scout camp where they had completed the cooking process
three times in a 48 hour period. They left this site riddled with
syringes, paraphernalia, sludge and drug waste strewn about the area.
This group had cooked and dumped waste in many other locations
including Table Rock Lake and Stockton Lake, both in Southwest
Missouri.
As another example of danger to children from meth labs, on July 3
in Newton County, we conducted a raid at a residence in the City of
Joplin, MO. Three individuals were arrested and charged with
Manufacturing of Methamphetamine, and it was discovered sludge and
waste from their methamphetamine operation was being dumped 3 feet from
Stapleton Elementary School.
Task Force members believe waste is being dumped in many sites
throughout our counties every day, and the effects on our environment,
particularly the quality of our drinking water, will be catastrophic if
it is allowed to continue. Local members and agencies of our task force
are struggling to store the hazardous materials seized at these drug
labs in our enforcement areas. Often chemical trucks have to travel
from Tulsa, Oklahoma to Joplin, MO, over a hundred miles, to respond to
large operations and it is left to local agencies to attempt to store
many of the chemicals seized in these operations. Often these chemicals
are placed in Evidence lock-ups, leading to many mishaps. In Newton
County alone, five officers this year have been overcome by fumes from
this evidence.
The adverse impacts of these operations is not only a hazard to
officers, but anyone swimming/ fishing in our streams, lakes and farm
ponds or anyone drinking the water. These operations certainly have
adverse effects on our children at risk on playgrounds and at campsites
as our investigations have revealed.
We realize the Drug Enforcement Administration is overwhelmed with
the calls for assistance from local agencies and cannot respond to all
requests. Therefore, we seek your help in expanding the resources we
have available to us through the Drug Enforcement Administration and
HIDA and the continued support and expansion of drug task force grants
which have been extremely successful in our remote areas. We, however,
need additional undercover officers and resources to continue to wage
war that is primarily being fought in the rural areas of our state.
In addition to the recommendations already made, our Task Force
respectfully requests your help to augment the ``chemical response
teams'' who can arrive in a timely manner to assist law enforcement at
chemical sites throughout the state. We also ask that you eliminate
methamphetamine recipes, ingredients and instructions from
manufacturers on the Internet, increase the penalty for drug
manufacture/sales and those who sell the chemicals, pursue stronger
prosecution, reduce suspended impositions of sentences, increase jail
time for repeat offenders and create new, harsher laws dealing with
methamphetamine manufacturers who poison our environment.
In closing, the problem will not be controlled until it becomes so
dangerous and costly to manufacture and sell drugs that only the most
desperate will attempt it. Nothing deters crime like the certainty of
punishment. Attached are several examples of recipes, instructions and
ingredients which can be accessed at our local library through the
Internet. This information is easily accessible to children in our
area.
Thank you for your consideration.
Respectfully,
Sheriff Ron Doerge,
Chairman, Southwest Missouri Drug Task Force, Newton County.
The Chairman. Mr. Vasica, we will take your testimony.
STATEMENT OF JOHN VASICA
Mr. Vasica. Mr. Chairman, members of the committee, I
appreciate the opportunity to be here and be a part of this
process and concentrating on a problem of this magnitude. I am
honored to be invited here and being able to give you a
parent's point of view.
I wish that this hearing would not be necessary, but
current circumstances dictate otherwise. As a single parent, I
have been involved with the raising of a son who is now 19
years old. Unfortunately, he chose to dabble in something I
disapproved of, but could not control or prevent. This drug
took over his lifestyle to a point where nothing else mattered.
Neither school nor family were of any importance. His grades
went from A's and B's to F's, but after much pushing, he
finally did graduate.
During his half-hearted attempts at finding employment
after graduation, motivation and ethics were nonexistent.
Brushes with the law failed to deter him and his peers from
using this drug. Finally, after pushing it to the limit, he was
ordered by the court system to check into a rehab center. The
other option was jail. He chose the chance to get his life
together and has completed a program. I now have my son back.
But not for a minute am I kidding myself into believing
that all is well. This drug is as addictive as anything else
out there, and relapses are a fact of life. The physical damage
is sometimes irreparable, and I hope that I am not in that
situation where I come across this. These longtime consequences
can be devastating to a user. Much is unknown because it is a
relatively new drug.
In my opinion, in this case prevention is as important as
the cure. Emphasis must be put on the complete eradication on
the sources, namely the manufacturers of the drugs and the
suppliers of the ingredients that go into producing it. As
rampant as it is now, every means must be taken to stem the
flow from the makers to the users. The toxic substances that
are mixed together to manufacture it are all potential hazards
to the environment, which makes the ingestion into the human
body even more potent and scary.
Everybody within the close proximity of a user is affected
by it. This drug knows no boundaries and won't stop at
anything. I have been told that the first time the user tries
this drug, he gets hooked immediately. The world seems to
suddenly change on them. Pressures disappear and the euphoria
sets in. From that point on, life consists of worrying only
about where the next high is coming from. This leads to other
innovative methods to keep the cash flowing which is used to
buy more drugs. A whirlpool is created from which escape seems
impossible.
Watching from the outside is absolute torture, but parental
involvement is futile and frustrating. Love and logic are words
that have no meaning, and finally the time arrives when we
attempt to throw our hands up in the air and just let our kids
continue doing what they are doing and hope things work out--a
chance with terrible odds.
I am imploring all of the members of this committee to pass
this bill and eliminate this dreadful scourge from our
neighborhoods. When this drug is easier to get than a Pepsi, we
know that immediate and stricter law enforcement is vital to
achieve this goal.
Again, I wish to thank everyone who played a part in
enabling me to be present here today, and I applaud this
committee for recognizing the urgency of this massive problem
and the actions it is taking to make the eradication of this
killer drug a reality.
Thank you.
The Chairman. Well, thank you, John, for sharing your
family tragedy with us and I hope that everything does work
out. But it is addictive and it can grab them again, no
question about it. It is my hope that your testimony can
somehow help other families that are going through the same
ordeal.
Your testimony demonstrates that the methamphetamine
problem can strike any family.
Mr. Vasica. Absolutely, absolutely.
The Chairman. How do you think law enforcement can help to
prevent children from falling prey to methamphetamine or
amphetamine?
Mr. Vasica. I think if we cut the source right at the
start.
The Chairman. Cut the source. Well, as someone who
witnessed firsthand the signs of methamphetamine use and
addiction, can you describe the signs or the symptoms that
might alert other families so that they can maybe catch this
early enough?
Mr. Vasica. There are many, many signs, and I am sure
everybody on this panel is aware of them. The lack of
motivation, the lack of enthusiasm. They don't want to do
anything. They want to get high and go to sleep, want to get
high, go to sleep, don't eat. I mean, it is a disruptive way of
life. There is absolutely no--what is the word--they don't want
to do anything else except get high. That is their number one
concern. They will do anything--steal, borrow, beg, whatever it
takes to get that drug.
The Chairman. Mr. Marshall, as you know, I was the original
author of the Methamphetamine Control Act of 1996, which was
our first legislative effort specifically directed at
controlling the proliferation of methamphetamine. Now, one of
the purposes of this hearing, of course, is to continue those
efforts and make improvements in the law where those
improvements are needed.
I understand that aside from the reporting requirements
mandated in the MCA, the Methamphetamine Control Act, the DEA
and industry have been working together to fight the
methamphetamine problem, right?
Mr. Marshall. Yes, that is correct.
The Chairman. Now, can you explain how the DEA has been
working with merchants and retailers to minimize the chances
that the over-the-counter products and other substances will be
purchased and used in the manufacturing of meth or amphetamine?
Mr. Marshall. Yes, sir. We have been doing a number of
things and it hasn't been confined just to the over-the-
counter. We have been doing a lot of bulk shipments, too.
The Chairman. Specifically, one of the things I would like
you to go into is what voluntary measures adopted by industry
have proven most helpful to law enforcement in this area.
Mr. Marshall. I think that now that we are seeing the shift
from bulk chemicals to the over-the-counter in most places, I
think that we have seen the most results from our voluntary
partnerships with companies like Wal-Mart and Costco,
particularly in the State of Missouri and that general Midwest
area.
What we have found there is that we have entered into that
partnership and we have tried to educate the retailers, the
pharmacists, and those kinds of people in spotting the people
that are coming in for purchasing the remedies for
methamphetamine use other than the legitimate uses. And they
have begun reporting suspicious people coming in. They have
begun reporting larger quantities than a person would normally
purchase, and we have been able to use that and turn that into
investigations and intelligence gathering, and actually have
gotten a number of leads into actual laboratories.
But I think perhaps what has been more effective about that
particular approach is it simply made the chemicals harder to
get for a lot of those traffickers. I think that is a big part
of the reason that we are seeing the purities go down. I think
that is a big part of the reason that we are seeing the shift
from amphetamine to methamphetamine. We have also done a lot of
education with the agricultural people that Senator Kyl, I
believe it was, referred to, and we have just tried to build an
awareness with industry and other groups that can help us and I
think it is paying off.
The Chairman. Well, methamphetamine is said to be the drug
of choice in the Midwest, but it is also affecting a lot of
other States, including my own home State of Utah. Within the
last 5 years, the use of methamphetamine has increased in some
communities by as much as 300 percent and accounts for up to 90
percent of the drug cases in many areas.
Can you explain why methamphetamine use is so prevalent in
some areas compared to others, and do you think stronger
penalties for manufacturing methamphetamine can assist in
preventing it from spreading to other areas of the country?
Mr. Marshall. Let me try the first part of that question
first, why is it hitting some areas harder than others. Well, I
believe that the reason for that is quite simply that a number
of years ago we saw the Mexican-based organizations wrestle the
production control from the biker gangs. When it was in the
control of the biker gangs, that was a kind of a niche market
and they didn't provide that drug to a lot of people outside
their own circles.
Now, what the Mexican trafficking organizations did and
what contributed to this explosion is that they used their
well-established trafficking distribution networks in this
country. They have been using those networks for marijuana and
heroin for many, many years, and they used those networks to
really aggressively market methamphetamine. They saw that there
was a market for it and they saw that by producing this
methamphetamine, they didn't have the logistical problems that
they did with cocaine, heroin and marijuana.
They didn't have to wait for a biological product to be
harvested. They didn't have the long supply lines and the
smuggling considerations, and they didn't have to pay large
amounts of labor and aircraft or boat costs to smuggle this
product in. And so what they did, in my best professional
judgment, is they saw this market and they went about
aggressively developing that market. So, that is why you see
the explosion, I think, in the use. They expanded it to new and
different user markets.
And the other half of your question, Senator?
The Chairman. Well, the other half was just how basically
do you stop--well, I basically forgot what I was----
Mr. Marshall. Yes, I think I can----
The Chairman. Well, I think it was do you think that
stronger penalties will help to curtail this from spreading to
other areas?
Mr. Marshall. Yes, yes, I do. In fact, I know that there
have been some stronger penalties in place as a result of a
recent bill, and I believe there is a 10-year mandatory now
for, I believe it is 100 grams or more. I very definitely feel
that the stronger penalties will have a deterrent effect on the
manufacturers.
Now, unfortunately, as the other witness has said, that is
not going to have an effect, I think, on the users because once
they begin this destructive cycle, there are probably not too
many things that are going to deter them. But, absolutely,
penalties are an essential part of solving this problem.
The Chairman. My time is up, but let me ask you, Mr.
Warner, about mandatory minimum sentences for drug offenses.
Stewart Taylor, who is highly respected by me and others, a
legal commentator, recently wrote a column in the National
Journal advocating the repeal of all Federal mandatory minimum
sentences for drug offenses. In addition, there is a bill
pending in the House of Representatives which is sponsored by
25 Members that would repeal all Federal mandatory minimum
sentences for drug offenses.
Now, do you support mandatory minimum sentences for
methamphetamine trafficking? And let me just ask this: How do
you respond to such critics of mandatory minimum sentences for
drug offenses?
Mr. Warner. Mr. Chairman, I believe that my position on
minimum mandatories runs very parallel with that of the
Department of Justice. I believe that minimum mandatory
sentences are appropriate in the most egregious violent crimes
and drug trafficking areas. Unfortunately, those who would
advocate the repeal of minimum mandatories usually use the
argument that, well, there are violent people, there are
murderers who are serving less time than those who have
merely--and I use that in quotes--``merely'' been trafficking
in or manufacturing drugs.
But as was noted earlier, guns and violence are part and
parcel of the drug trade. And quite frankly, my experience over
many years as a prosecutor suggests that there are appropriate
circumstances. Now, I don't think that we want to be knee-jerk
about this, and I know this committee hasn't been that way, but
I do believe that in the appropriate cases, the most serious
cases, minimum mandatories are appropriate and they do serve a
useful purpose of deterrence.
I might also add that as you look at this particular
problem of methamphetamine, which is different than other drug
areas because of the manufacturing aspect vis-a-vis some of the
things we have seen with heroin, cocaine, and so on, I believe
personally that there is a qualitative difference between those
who manufacture and those who distribute and those who use. Mr.
Marshall alluded to that just a bit.
Those who are manufacturing pose a very, very serious
threat to the public safety and to the environment. Many of
these things have been alluded to before. I won't rehash that,
but I do believe that in appropriate circumstances and in the
most serious cases minimum mandatories are indeed appropriate.
The Chairman. You and I have worked on a couple of
situations where basically good kids have gotten hooked on meth
and, you know, they get convicted, go to jail, and then they
come out and they are absolutely convinced that they can make
it and then slip right back into the same pattern. It is one
thing to do everything we can to prevent it, but how do we help
these kids that get hooked on it who want to get off but really
can't because they are addicted to it? How long does it take to
get over an addiction, assuming we have the right prevention
approach?
Mr. Warner. I don't profess expertise in that. I tell
people I am a prosecutor, I am not a social worker or a
physician.
The Chairman. Yes, but you have had experience in this
area.
Mr. Warner. I have had experience, and my experience
particularly with methamphetamine is that it is as addictive or
more addictive than any other drug I have ever dealt with. And
once people get on it, it is extremely difficult to get off. I
am talking in the area of 2 to 3 years, at least, of very
serious kinds of rehab that I have seen.
In fact, you know, people look at these tough sentences
that we give people that are involved in drugs, but I have
personally had occasions where people have come to me or have
written to me from prison or after they have been released and
have thanked us for prosecuting them and thanked us for putting
them in prison because we saved their lives because they were
on such a downhill spiral.
And in the Federal system at least, there are very good
programs for rehabilitation and treatment within the system.
Many times, our State systems aren't as good, but I believe
that the treatment aspect is absolutely essential. It is not
enough just to incarcerate and throw away the key. If someone
is addicted, they really do need that treatment while in
prison.
The Chairman. Well, I think the point I am making here, for
everybody who is watching or listening to this, is that you
have really got to watch your kids, and you have got to watch
your area and we have all got to be vigilant because once the
kid is addicted--and it could be the nicest young person in the
world, as the one young person that we dealt with. It could be
a terrific young person, but once he or she is addicted, it is
almost impossible to get him or her off of addiction, and it
takes up to 3 years of very intensive rehabilitation. This is
becoming a widespread problem in our society. And as Mr. Vasica
brought out, even if one goes through the 3-year
rehabilitation, he or she may slip back into it because the
drug is so addictive and so compelling. I just wanted to get
that across because this is not some itty-bitty problem; this
is a big-time problem.
Mr. Vasica, you wanted to say something?
Mr. Vasica. I have heard from the counselors in the rehab
center that my son was in that they never, ever get over the
addiction. It will always be in the back of their minds. Even
now I ask my son, do you ever think about it. He says, all the
time. But they teach them how to prevent from going back into
it. So, that addiction never, ever disappears. It is scary, it
really is scary.
The Chairman. It is an evil thing, I tell you.
Well, my time is up. Let me turn to Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Mr. Vasica, I am delighted that you have your son back. I
think that is really the good news of this hearing.
Mr. Vasica. Thank you.
Senator Feinstein. If I might, I would like to begin my
questioning with Mr. Marshall. Just quickly, Mr. Marshall, who
would you say of the Mexican cartel leaders are the two
gentlemen that have had the biggest impact on the
methamphetamine cartel of Mexico which has begun this whole
super lab manufacturing process?
Mr. Marshall. That would be the Amezcua brothers, Luis and
Jesus.
Senator Feinstein. And were not the Amezcua brothers
actually arrested and in custody at one point?
Mr. Marshall. Yes, they were.
Senator Feinstein. And were they not freed by a Mexican
judge?
Mr. Marshall. That is my understanding, yes, ma'am, that
they were freed.
Senator Feinstein. And do we not have an extradition
request pending against them?
Mr. Marshall. Yes, we do.
Senator Feinstein. And did not the Mexican authorities know
that the extradition request was pending against them when they
were in jail?
Mr. Marshall. It is my belief that they did, but to be a
hundred percent sure about that you would have to ask the
Justice Department. I think I can say with certainty that they
did.
Senator Feinstein. But they were not extradited?
Mr. Marshall. That is correct.
Senator Feinstein. And are not the Amezcua brothers
responsible for the establishment in the mainstream the
development of the major methamphetamine market in the United
States?
Mr. Marshall. Yes, that is correct, they are. They, in a
sense, were the organization that started it all.
Senator Feinstein. Let me just make a comment, if I might,
to you, Mr. Chairman.
The Chairman. Yes.
Senator Feinstein. This is a huge, huge problem, and that
is this particular Mexican cartel which has really developed
the methamphetamine trade as we know it in the world today, and
the two leaders were actually in prison. There was an
extradition request. I believe it was communicated to the
Mexican Government. As a matter of fact, they were actually
held in jail only pending resolution of the extradition request
and they were cut loose. I find this is just devastating in
terms of being able to maintain an effective battle against
methamphetamine.
The Chairman. Well, I think that is an important point.
If the Senator would just yield for a minute, I have to
step out for a minute, so as soon as you are completed, we will
turn to Senator Biden. Is that OK?
Senator Feinstein. That is excellent.
The Chairman. All right.
Senator Feinstein. Ms. Kypridakes, I want to thank you so
much for all your help. You have become, I think, one of the
United States' great experts on precursor chemicals and
methamphetamine, and I just want to salute the Department of
Narcotic Enforcement. You have made many, many arrests, over
1,000 this past year in California alone--I should say seized
labs and destroyed labs, and I think that is very impressive.
You state in your testimony that the Mexican drug cartels
have the incentive to smuggle precursor chemicals into the
United States and cook the meth here because penalties are
lower for smuggling precursors than for smuggling meth. I note
that under current Federal law, the maximum sentence for
importing any quantity of listed chemicals with the intent to
manufacture a controlled substance is 10 years. By contrast,
the penalty for smuggling 50 grams of meth is a minimum of 10
years and a maximum of life.
It seems to me that we can alter the incentives and reduce
the hazard to human health from cooking meth in the United
States by bringing these penalties into line with each other.
What do you think of this and what do the other witnesses think
of this? In essence, what I am suggesting is that the penalty
for smuggling the precursor in, be the same as manufacturing
meth.
Ms. Kypridakes. Well, I certainly think that that would be
a significant step to the source of those precursor chemicals.
In many cases, the source is coming from outside the country
into this country. And as I stated and as you reiterated, that
is simply because there is a lesser penalty if you do that. If
that were brought and aligned with manufacturing, so that if
you were bringing in those large quantities which are necessary
for what we have coined those super labs, you would certainly
be making a huge dent, I think.
Senator Feinstein. For example, amphetamine, which is going
to be more and more used if there is a clamp-down on other
precursors?
Ms. Kypridakes. That is correct. So there are limits on the
amount of ephedrine and pseudoephedrine which people can obtain
in this country, so they are seeking phenylpropanolamine
through a variety of means. Certainly, it is a lot nicer when
you are an illegal manufacturer if you have bulk quantities of
phenylpropanolamine. But, again, that is being smuggled as
well. And, again, if you are caught with that, the penalty is
far less than what you would be charged with had you had a
finished product.
Senator Feinstein. Mr. Marshall, might I ask you that same
question?
Mr. Marshall. Senator, yes, I would support that and I
think that that is a good idea. I think as we see a bit more
control over the bulk shipments, however, and over the bulk
smuggling, I think that the same concept perhaps could apply to
some of these substances up here, the pills and that sort of
stuff, the ephedrine and pseudoephedrine, when it is possessed
for the purpose of manufacturing methamphetamine and when it is
purchased by subterfuge for that purpose. I think it is an
outstanding concept and I would suggest you might want to
extend it to these for the same reason.
Senator Feinstein. Would you mind taking a look at the 1996
law? We had a huge debate, if you will recall, on the
pseudoephedrine as to the amount that could be sold without the
druggist having to register the sale. Do you think that that
cap is adequate?
Mr. Marshall. I think that is adequate because you want to
have a balance of controlling the substance and yet have a
safeguard in there for the legitimate uses. So I think that is
adequate. I think that what we have done, however, is we have
had these partnerships with retailers like Wal-Mart and Costco,
and I think they have found that as a suspicious order, as it
were, they kind of look at lower thresholds and they report
lower thresholds, I am told. But I believe to safeguard the
balance of the legitimate need with the criminal control, I
think that those amounts are adequate.
Senator Feinstein. Would it make any sense to put some
limits on the amount of amphetamine that you could sell?
Mr. Marshall. No; the amphetamine would be--I mean, that is
an illicit substance.
Senator Feinstein. Oh, you can't, that is right.
Mr. Marshall. Amphetamine, methamphetamine, those are
illegal Schedule I substances. Are you speaking of ephedrine
and pseudoephedrine?
Senator Feinstein. Well, then, where is it all coming from?
Mr. Marshall. Well, right now it is all--I say ``all''--the
trend right now for the ephedrine and pseudoephedrine are these
over-the-counter medications. That is where a lot of it is
coming from.
Senator Feinstein. I am confused. You are saying it is all
coming--the cooking ingredients are coming essentially from the
over-the-counter ingredients?
Mr. Marshall. We are seeing a trend now--and I think this
is as a result of the Methamphetamine Control Act of 1996 and
operations like Operation Backtrack and investigations where we
have seized large amounts of bulk chemicals. I think we are
seeing the trend now that the traffickers are getting most of
their ephedrine and pseudoephedrine from the over-the-counter
remedies. That is what we are seeing nationwide. Ms. Kypridakes
may comment on that from a California point of view.
Ms. Kypridakes. If I could just comment in this way,
because you asked the question about lowering that threshold
amount or what we placed in the MCA, and I believe that was one
of the major discussions we had one day in your office. One of
the things that I would simply point out--and I think that
Missouri can certainly bear this out, as well as some of the
problems that have been encountered in Utah and Iowa--a 24-gram
threshold is a significant amount of over-the-counter cold and
allergy preparations, certainly far more than the average
consumer is going to consume probably in a number of years, let
alone 1 year. And it is well above what any stovetop cooker
would require in order to manufacture in their homes.
Now, one of the things, and I will throw this out there, is
there is currently legislation in California which would lower
that threshold to 9 grams, which would mean three packages of
96 tablets, if you will, 12 grams being what the average
stovetop acquiring, so 4 packages of 3 grams apiece.
Senator Feinstein. So in other words, you would lower that
threshold from 24 grams, which is in the 1996 legislation, to 9
grams?
Ms. Kypridakes. That is about a done deal in California.
Senator Feinstein. And that is three packages of how many
pills?
Ms. Kypridakes. Ninety-six, I believe.
Senator Feinstein. Ninety-six. That is a lot of pills to
buy at one time.
Ms. Kypridakes. Sure. I know that Missouri has enacted
certain restrictions on the amount of over-the-counter cold and
allergy products that you can purchase, as well as some other
States. And one of the key elements that we also included in
some of the individual State legislation has been that blister
packaging was no longer exempt, which was one of the things
which was exempt in the Federal legislation.
And I certainly commend the voluntary compliance which has
taken place on the part of--I don't mean to--just so everybody
understands, there certainly are reasons for establishing
higher thresholds at the Federal level, and I want to commend
those companies which cooperated and wanted to cooperate in a
partnership with law enforcement, such as Wal-Mart and Costco
and some others across the country. But, again, I think we need
to look at the volume that we are allowing and just what it
takes for the average stovetop cooker to cook because those are
the majority of the labs and which pose the greatest threat to
all of us.
Senator Feinstein. Just one quick question because my time
is expired. When you seize a lab, do you find a lot of evidence
of the blister packs?
Ms. Kypridakes. Thousands and thousands of the little
packages.
Senator Feinstein. So the blister packs--they are getting
somebody to open each little pill before they cook it.
Ms. Kypridakes. Yes.
Senator Feinstein. And the blister packs have become a
major problem, would you say, Mr. Marshall?
Mr. Marshall. Yes, ma'am.
Mr. Warner. Senator, if I could just inject very briefly in
response?
Senator Feinstein. Certainly, Mr. Warner.
Mr. Warner. In Utah, I think one of the major reasons that
Utah has become unfortunately a high manufacturing State was
because of the easy access to precursor chemicals. Our State
legislature acted in 1998 to pass a State Precursor Act which
has helped us, and it limits possession and sale to 12 grams
under our State law. I am being told by our agents that this is
helping a great deal as they deal with this problem.
Senator Feinstein. Would you support going to 9 grams,
which is three 96-pill packs?
Mr. Warner. I don't know that I have got a specific number
in mind, but I do know that I can say based on anecdotal
experience that the law in Utah is helping us with the lab
problem.
Senator Feinstein. Thanks very much. Thanks, Mr. Chairman.
The Chairman. Thank you.
Senator Biden, we will finish with you.
Senator Biden. Let me ask for people watching this hearing,
we talk about 3 packs, 96 pills, 12 grams, 24 grams, 9 grams. I
think to the averaged informed person it doesn't mean much.
Give me, any one of you, an example of someone who legitimately
wishes to purchase these pills for purposes of dealing with
allergies or whatever their legitimate purpose is. They walk
into a drugstore. How many pills are they likely to buy? What
would be a normal purchase.
Is Sudafed on there? I guess a pack is there. When you go
in to buy a pack of Sudafed, I mean we must have some numbers
on what the average purchase would be for someone who is not
going to cook it, somebody who is going to use it in a
legitimate fashion.
Mr. Marshall. Senator, for myself and my family--and there
are three members of my five-member family that are kind of
plagued with allergies, unfortunately, myself being one of
them, and we normally buy one packet at a time, 30 or 60. And
occasionally, if we are going on a trip, we may buy a couple.
And the dosage unit, I believe, on those--I would have to
actually check the package, but I believe it is----
Senator Biden. Let me ask the staff to go down and grab a
package of this Sudafed for me, or whatever else is there,
please.
Ms. Kypridakes. Under the FDA provisions, the
pseudoephedrine can be up to 60 milligrams and the ephedrine is
restricted to 30 milligrams per dosage unit.
Senator Biden. I understand that. What I am trying to get
at is to put this in language that the mother or father who is
out there or the individual who is out there trying to
understand what we are talking about because it is a concept
that is hard for people to imagine.
I mean, were my wife not a teacher and were I not in this
business and I were practicing law and she worked for the
DuPont Company and we heard this on television replayed, it is
all kind of surreal to the average mother or father out there
that says, now, wait a minute now, they are talking about
cooking stuff that is Sudafed and night-time liquid caps, and
they are talking about 12 and 9 and 24 grams, and they can get
this over the Internet. I mean, this is like voodoo.
We deal with this so much. I have been dealing with this
for so many years of my life. We talk to each other and we
think people understand what the heck we are talking about. So
what I am trying to get at here is when people think that we
are being--the Senator from California or Delaware or Utah is
being unreasonable in restricting access to something, the way
the drug companies or others will portray it is we don't want
somebody to be able to walk in and buy a package of Sudafed.
Now, in this package of Sudafed, how much of the bad stuff
is there that allows somebody to cook this, in layman's terms?
Can they make anything out of this pack? Can they do anything
with this pack?
Mr. Doerge. Well, it takes several of those packs, Senator,
to effect a good cook. The problem with what we are saying here
is if we limit the amount of boxes that you can buy at any one
place, they just go from place to place.
Senator Biden. Right. That is the next thing I was getting
at.
Mr. Doerge. Correct.
Senator Biden. So the next point is we are trying to come
up with solutions. One of the things that the American people,
I think--at least in my experience, they look at us and they
sometimes doubt our intentions. In this area, they don't doubt
our intentions but doubt our judgment. So we come up and say we
are going to limit the ability to buy the equivalent of two or
three packs of Sudafed.
And it doesn't take a rocket scientist to say, OK, you
limit it and you can't buy more than four packs from one
drugstore. But you walk next door, you go to another drugstore.
You go to 4 different drugstores and it takes you 5 minutes to
buy 4, 5, 6, 7, 8 packs.
But I am trying to get at is this question. For each one of
you, including you, sir, who has gone through more trauma
related to this than anybody has, if there was only one thing
you could do--if you were sitting up here or you were the
President of the United States and could have an edict that
would attempt--one thing you could do to affect the consumption
of methamphetamine, of, you know, black beauties and dexies,
the way you hear kids talk about them--you never hear anybody
on the street say ``methamphetamine.'' You hear them talking
about crank or dexies or beans or black beauties or white
beanies. I mean, you know, that is the language of the street.
Now, what would you do? You only get one, you get one deal,
you get one thing. You are going to pass legislation. What is
the single most important thing, if you are willing to take a
shot at it, that you would want done other than the United
States having an epiphany or a great alter call and all of a
sudden see the Lord and not want to do anything? I mean, short
of that, what one thing would you do, Donnie?
Mr. Marshall. It is almost an impossible question to say
one particular thing, and I don't think one particular thing
would really impact on the problem. But I think as a law
enforcement professional, perhaps I am biased, but I believe
that stiffer penalties and more law enforcement measures
against the manufacturers and the traffickers would be the
biggest thing.
Senator Biden. Paul?
Mr. Warner. I agree with Mr. Marshall relative to the
manufacturer. As I said earlier, I believe there is a
qualitative difference in this particular drug between
manufacturing and trafficking and the users. I think we want to
focus--we, talking about prosecutors, law enforcement--we want
to focus on the manufacturers where we can because that is
where the production is, that is where this stuff is coming
from. When we can do something about the manufacturer and focus
on the manufacturer, then we stop the production at the front
end.
Senator Biden. Again, for the people watching this, the
manufacturer can be a 22-year-old kid who is in his basement
and has a lab like this, or a 16-year-old kid. Or the
manufacturer can be the object of the Senator from California's
affection and attention, Mexican drug cartel leaders. They are
vastly different.
We busted, State and local, about 5,000 labs last year, if
I am not mistaken, all told. So when people think manufacturer,
they are used to thinking of cocaine cartels. They are used to
thinking of heroin cartels, if you pick 2, 3, 4 or 5. What we
are talking about here is folks with old Volkswagen vans with
stacks coming out of the top manufacturing on the road--that is
how it got into your State, that is how it got to your State;
it didn't come any other way--or going out near Coeur d'Alene,
ID, and going deep in the woods polluting the ground, because
this stuff stinks, too. You know, people smell it.
So my point is that I think we have got to try to figure
out how to educate the public about this in the sense that a
manufacturer is not like--no one is going to take a coca leaf
at 16-years-old and go down in their basement and buy the coca
leaf and have a cocaine operation in the basement of their
house.
Senator Feinstein. They make crack in the kitchen.
Senator Biden. That is my point. That is the point. The
Senator is not listening to me.
Senator Feinstein. I am not agreeing with you.
Senator Biden. Well, if you listened to me, you would agree
with me. [Laughter.]
Let me explain what I mean by that.
The Chairman. Could we have a little less controversy among
our Democrats? [Laughter.]
Senator Biden. We have a very different deal here. This can
be made anywhere. Anything from crank to black beauties can be
made in the basement. The average person doesn't cook cocaine
the way in which we think of the distribution of cocaine. Even
crack cocaine is harder to do than this. That is the only point
I am making. And because of that, this is a more pernicious
problem.
And the Senator from California is right because she is the
first one that has been on dealing harshly with precursors, to
the point that a lot of the business interests in this country
weren't happy because she was dealing so harshly with it.
What I am trying to get at is it seems to me that one of
the keys to this, when you say you want to go after the
manufacturer, the person who is cooking the stuff, the person
who is cooking the stuff can be a little boutique that is
cooking a little bit or it can be a major Mexican cartel that
is making hundreds of millions of dollars transporting
precursor chemicals and/or in this country producing the
product as well. So it seems to me this is a little different.
The point I want to get at is this. Mr. Warner, you are a
prosecutor. We are up here talking about how tough we are going
to get on all of these things. Yet, we went out just this year
in the State Department-Commerce-Justice bill and we came in
$200 million below the President's request for U.S. attorneys,
we came in $300 million below the President's request for the
FBI, and we came in $160 million below the President's request
for the DEA.
Now, all of you have to sit there and say we thank you for
your help, Congress. Don't thank us this year. We didn't do the
right thing this year. We didn't do what we were supposed to do
this year. And it seems to me that if you want to have an
impact, the single greatest impact, because you are talking
about an incredibly large number of people, is people. We need
more people.
You can increase the penalties, which you should. You can
deal with treating the precursor chemical coming across the
border the same as the product that we outlaw coming across the
border. But if you don't have more DEA agents, if you don't
have more FBI agents, if you don't have more U.S. attorneys
focusing on this, they ain't going to get very far.
So, in my view, the single most significant thing we can
do, in addition to trying to deal with access to the precursor
chemicals here, is deal with the enforcement side, people.
Yes, Sheriff.
Mr. Doerge. Senator, if I may, I believe that 90 percent of
the methamphetamine operations in Missouri are done at the mom-
and-pop operations, and we are dealing with those people over
and over again. We put 100,000 officers on the street through
these great programs, and we appreciate that. But we didn't
have enough prosecutors and U.S. attorneys to take care of the
cases before we put all those officers on the street, before we
formed all these drug task forces. We do not have enough people
in place to prosecute, and we keep seeing these people come
back through and we keep seeing their faces time and time
again. And it drains our resources, drains our time.
I would like to be able to put those people away, and the
suspended imposition of sentences be reduced down because of
expediency and all the other things that they have to consider,
and have those people put away to the point that they would at
least have enough time in prison that we could deal with the
new ones coming on. And you weren't here before, but this was
taken off the Internet at our local library in our county and
this is ingredients and instructions on how to do a
methamphetamine lab. It is not being done in the basement so
much; it is being done on the riverbank in our area and they
are dumping the waste in our rivers.
Senator Biden. Right. I know my time is up and I will
conclude with this, Mr. Chairman, and I thank you for your
indulgence. The truth of the matter is there are six major
pieces of this dealing with the precursors at one end and
dealing with cleanup at the other end, and there is in between
the idea of prosecution, penalties, incarceration, and
treatment.
And the truth of the matter is, in this area this is high-
intensity as it relates to personnel required to deal with
this. That is the only point I want to make to you. So if I
could only have one thing, I know what I want, and I will take
my political career on it having more impact than anything else
we could do. If I give you more prosecutors, if I give you more
DA's--if I am a responsible governor and give you more DA's to
prosecute, if I give you more DEA agents, I can do more with
that than I can do with any other single thing.
We should do everything, and the thing that bothers me the
most about all of this is why are we in a position where, in
the matter of 4 years, 12 to 15 percent more kids think that
this is not dangerous than before? And that goes to our overall
drug program which I won't bore you all with.
So I thank you all for your testimony. The point I am
trying to make here is this can be a mom-and-pop operation. The
more easy it is able to be done, the more requirement there is
for personnel-intensive efforts--cops, prosecutors, and
judges--to deal with it. That is the only point I wanted to
make.
The Chairman. Well, let me end the hearing with this. I
agree with virtually everything Senator Biden has said, but I
think there is something far more important than all of that,
and that is we have got to get back in this country to thinking
a little bit more about families and about what is right and
wrong and about community support.
Senator Biden, Senator Feinstein and I have worked very
hard for the Boys and Girls Clubs of America. We are finding
that where we have Boys and Girls Clubs, drug abuse goes down
dramatically. And until we start revitalizing the spiritual
nature--and I am not necessarily talking about religion,
although certainly that is part of it--the spiritual nature of
America that has always been here, but has been lost in recent
years, or at least has been diminished in recent years, we are
not going to have the intestinal fortitude or the spiritual
fortitude to be able to fight this stuff.
You can have all the prosecutors in the world and you can
have all the policemen and sheriffs in the world, and this is
just going to proliferate across this land in ways that nobody
ever dreamed of unless we start emphasizing some of the family-
type things that really have to occur. You know, in a country
where marriage is now starting to slip as a sanctified
institution, it is not hard for me to see why kids are looking
for release in other areas. And if they don't have the
supervision and they don't have the family treatment and care--
a lot of these kids are being raised now in single-parent
households where the poor parents don't know what to do. They
have got to work and the kids are latchkey kids.
We have got to be very concerned about the spiritual nature
of America. And this is a great country. It is the most
spiritual country ever in the history of the world, but we are
losing it. We have got to get back to that first and then I
think we do have to do all these other things that Senator
Biden and others and myself have been calling for. We can
prosecute these people for the rest of our lives and it isn't
going to solve the problem unless we start changing the nature
of our society and get it back to where it really was before
the 1960's that have really ballooned into now the 1990's,
going into the next century.
So you have all been very helpful here today in helping us
to understand this plague, really this catastrophic drug
problem that is killing our young people. I want to personally
thank each and every one of you for the efforts you are making
to try and get this under control. And we will try and help you
here. We will try to get a really good methamphetamine bill
with the very best ideas of everybody on this committee. It is
one thing where I just cannot believe we can't get together and
work as Democrats and Republicans and come out with something
that will really assist you and help you.
But I also suggest this business of families and
spirituality and decency and honor has got to start being
emphasized. And, again, the Boys and Girls Clubs, the Boy and
Girl Scouts, the----
Senator Biden. Afterschool programs.
The Chairman. Afterschool programs, and frankly during-
school programs, but mainly programs in the home. We have got
to somehow or other start----
Senator Biden. Mr. Chairman, I want the record to show I am
returning these.
The Chairman. I have no doubt that you will.
Well, I want to thank all of you for being here. You have
been very helpful to us and we just appreciate you very much,
and I hope this hearing will educate a lot of people out there.
I have read your statement, Ms. Kypridakes, and I think it
is a very good statement. I have read all of your statements
and I think all of them are good, but your State has so much of
this and you have these super labs, the highest percentage of
them, and I think people ought to pay attention to some of the
things that you mention in your statement.
Mr. Doerge, your experience has been wonderful here.
Paul Warner, I know what great work you have done. And, of
course, the DEA is terrific.
And, Mr. Vasica, we all empathize with you and we are glad
that your son has got this under control.
Mr. Doerge. Mr. Chairman, if I may, please remember the
local agencies. Most of these cases start with local law
enforcement.
The Chairman. Right, right.
Mr. Doerge. And our local task forces need help.
The Chairman. Yes, and you guys are doing a good job, but
you are overwhelmed by it, and you have, I think, eloquently
expressed that.
Well, thank you all very much. With that, we will recess
until further notice.
Senator Biden. Thank you for the hearing, Mr. Chairman.
The Chairman. We will keep the record alive until August 4
for statements and additional questions. I hope you will answer
them by then, if you can.
Thank you.
[Whereupon, at 12:43 p.m., the committee was adjourned.]
| usgpo | 2024-10-08T13:27:14.493021 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/CHRG-106shrg67479/html/CHRG-106shrg67479.htm"
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FR | FR-2024-08-15/FR-2024-08-15-FrontMatter | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Contents]
[Pages III-VII]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
CONTENTS
Federal Register / Vol. 89, No. 158 / Thursday, August 15, 2024 /
Contents
[[Page iii]]
Agriculture Department
See Rural Housing Service
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals, 66342
Air Force Department
NOTICES
Hearings, Meetings, Proceedings, etc.:
Scientific Advisory Board, 66356-66357
Antitrust Division
NOTICES
Proposed Final Judgment and Competitive Impact Statement:
United States v. Legends Hospitality Parent Holdings, LLC, 66442-
66452
Bureau of the Fiscal Service
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals:
Claim Against the United States for the Proceeds of a Government
Check, 66495
Disclaimer and Consent With Respect To United States Savings Bonds/
Notes, 66495
List of Data (A) and List of Data (B), 66494-66495
Special Form of Assignment for United States Registered Securities,
66494
Coast Guard
RULES
Safety Zone:
Kahanamoku Beach, Honolulu, HI, 66223-66225
Commerce Department
See Foreign-Trade Zones Board
See International Trade Administration
See National Oceanic and Atmospheric Administration
Commodity Futures Trading Commission
RULES
Foreign Boards of Trade, 66201-66210
Comptroller of the Currency
NOTICES
Permits; Applications, Issuances, etc.:
Monroe Federal Savings and Loan Assn., Tipp City, OH, 66494
Defense Acquisition Regulations System
RULES
Defense Federal Acquisition Regulation Supplement:
Strategic and Critical Materials Stock Piling Act Reform, 66286
Sustainable Procurement, 66283-66285
Technical Amendments, 66285
PROPOSED RULES
Defense Federal Acquisition Regulation Supplement:
Assessing Contractor Implementation of Cybersecurity Requirements,
66327-66338
Limitation on Certain Institutes of Higher Education, 66338-66341
Defense Department
See Air Force Department
See Defense Acquisition Regulations System
NOTICES
Arms Sales, 66357-66369
United States Court of Appeals for the Armed Forces Proposed Rules
Changes, 66365
Education Department
RULES
Priorities, Requirements, Definitions, and Selection Criteria:
Postsecondary Student Success Grant, 66225-66232
NOTICES
Applications for New Awards:
Special Education Dissertation Research Fellowship Program, 66372-
66375
Strengthening Program Evaluation Capacity: Building Evidence of
Effectiveness of Strategies to Increase Postsecondary
Student Success, 66369-66372
Energy Department
See Federal Energy Regulatory Commission
Environmental Protection Agency
RULES
Air Quality State Implementation Plans; Approvals and Promulgations:
California; Ventura County Air Pollution Control District, 66232-
66234
New York; Regional Haze State Implementation Plan for the Second
Implementation Period, 66234-66240
PROPOSED RULES
Air Quality State Implementation Plans; Approvals and Promulgations:
California; Los Angeles-South Coast Air Basin; Finding of Failure
to Attain the 1997 8-Hour Ozone Standards, 66291-66295
Delaware; Motor Vehicle Inspection and Maintenance Program, 66295-
66305
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals:
Implementation of the 8-Hour National Ambient Air Quality Standards
for Ozone, 66382-66384
Federal Aviation Administration
RULES
Airspace Designations and Reporting Points:
Eastern United States, 66194-66201
Reidsville, NC, 66199-66200
PROPOSED RULES
Airspace Designations and Reporting Points:
Rose Hill, KS, 66290-66291
Federal Communications Commission
RULES
Accessibility of User Interfaces, and Video Programming Guides and
Menus, 66268-66283
Digital Opportunity Data Collection:
Modernizing the Form 477 Data Program, 66254-66268
[[Page iv]]
PROPOSED RULES
Digital Opportunity Data Collection:
Modernizing the FCC Form 477 Data Program, 66305-66327
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals, 66384-66387
Radio Broadcasting Services:
AM or FM Proposals to Change the Community of License, 66386
Federal Deposit Insurance Corporation
NOTICES
Guidance:
Resolution Plan Submissions of Domestic Triennial Full Filers,
66388-66412
Resolution Plan Submissions of Foreign Triennial Full Filers,
66510-66541
Federal Election Commission
NOTICES
Filing Dates:
Texas Special Election in the 18th Congressional District, 66387
Federal Emergency Management Agency
RULES
Hazard Mitigation Grant Program Application Period Extension, 66241-
66254
Federal Energy Regulatory Commission
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals, 66375-66377, 66381-66382
Combined Filings, 66378-66380
Filing:
Campbell, David A., 66379
Initial Market-Based Rate Filings Including Requests for Blanket
Section 204 Authorizations:
Lone Star Solar, LLC, 66378
Timbermill Wind, LLC, 66375
Surrender of Preliminary Permit:
New England Hydropower Co., LLC, 66378-66379
Federal Motor Carrier Safety Administration
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals:
Generic Clearance for the Collection of Qualitative Feedback on
Agency Service Delivery, 66492-66493
Federal Reserve System
NOTICES
Change in Bank Control:
Acquisitions of Shares of a Bank or Bank Holding Company, 66412-
66413
Guidance:
Resolution Plan Submissions of Domestic Triennial Full Filers,
66388-66412
Resolution Plan Submissions of Foreign Triennial Full Filers,
66510-66541
Federal Transit Administration
NOTICES
Competitive Funding Opportunity:
Public Transportation on Indian Reservations Program; Tribal
Transit Program, Fiscal Year 2024, 66493
Fish and Wildlife Service
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals:
National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation, 66432-66434
Food and Drug Administration
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals:
Laboratory Accreditation for Analyses of Foods, 66417-66420
Final Debarment Order:
Ryan Stabile, 66413-66415
Hearings, Meetings, Proceedings, etc.:
Science Board to the Food and Drug Administration Advisory
Committee, 66416-66417
Patent Extension Regulatory Review Period:
MIEBO, 66415-66416
Withdrawal of Approval of Drug Application:
Entereg (Alvimopan) Capsules, 12 Milligrams, Cubist Pharmaceuticals
LLC, 66413
Foreign Assets Control Office
NOTICES
Sanctions Action, 66495-66505
Foreign-Trade Zones Board
NOTICES
Proposed Production Activity:
Curia New York, Inc., Foreign-Trade Zone 121, Rensselaer, NY,
66342-66343
Health and Human Services Department
See Food and Drug Administration
See Substance Abuse and Mental Health Services Administration
NOTICES
Findings of Research Misconduct, 66420-66422
Homeland Security Department
See Coast Guard
See Federal Emergency Management Agency
See Transportation Security Administration
Housing and Urban Development Department
NOTICES
Vacant Loan Sale, 66430-66432
Interior Department
See Fish and Wildlife Service
See Land Management Bureau
See Surface Mining Reclamation and Enforcement Office
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals:
Application Requirements for States and Tribes to Apply for
Orphaned Well Site Plugging, Remediation, and Restoration
Funding Consideration, and Ongoing State and Tribal
Reporting Requirements for Funding Recipients, 66434-66440
Internal Revenue Service
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals:
Annual Summary and Transmittal of United States Information
Returns, 66505-66506
[[Page v]]
Customer Satisfaction Surveys, 66506
International Trade Administration
NOTICES
Antidumping or Countervailing Duty Investigations, Orders, or Reviews:
Certain Hardwood Plywood Products from the People's Republic of
China, 66343-66350
Steel Concrete Reinforcing Bar from the Republic of Turkiye, 66350-
66353
Export Trade Certificate of Review, 66353-66354
International Trade Commission
NOTICES
Investigations; Determinations, Modifications, and Rulings, etc.:
Certain Medical Programmers with Printed Circuit Boards, Components
Thereof, and Products and Systems for Use with the Same,
66442
Justice Department
See Antitrust Division
Labor Department
See Mine Safety and Health Administration
See Occupational Safety and Health Administration
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals:
Respiratory Protection Program at Coal Mines, 66452-66453
Land Management Bureau
NOTICES
Permits; Applications, Issuances, etc.:
Withdrawal Extension for Base Camp and Opportunity for Public
Meeting; Nevada, 66440
Withdrawal Extension for Halligan Mesa and Opportunity for Public
Meeting; Nevada, 66441
Mine Safety and Health Administration
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals:
Notification of Methane Detected in Underground Metal and Nonmetal
Mine Atmospheres, 66454-66455
Underground Retorts, 66453-66454
National Oceanic and Atmospheric Administration
NOTICES
Hearings, Meetings, Proceedings, etc.:
Fisheries of the South Atlantic; Southeast Data, Assessment, and
Review, 66354
New England Fishery Management Council, 66354-66355
Pacific Fishery Management Council, 66355-66356
Science Advisory Board, 66355
Nuclear Regulatory Commission
NOTICES
Export License Application:
Perma-Fix Northwest Richland, Inc., 66457-66458
Occupational Safety and Health Administration
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals:
Vehicle-Mounted Elevating and Rotating Work Platforms (Aerial
Lifts), 66456-66457
Postal Regulatory Commission
NOTICES
New Postal Products, 66458-66459
Postal Service
NOTICES
Product Change:
Parcel Select Negotiated Service Agreement, 66460-66461
Priority Mail and USPS Ground Advantage Negotiated Service
Agreement, 66459-66460, 66462
Priority Mail Express, Priority Mail, and USPS Ground Advantage
Negotiated Service Agreement, 66459-66463
Priority Mail Negotiated Service Agreement, 66461
Presidential Documents
PROCLAMATIONS
Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or
Fully Assembled Into Other Products); Facilitation of a
Positive Adjustment to Import Competition (Proc. 10790),
66181-66185
ADMINISTRATIVE ORDERS
Export Control Regulations; Continuation of National Emergency (Notice
of August 13, 2024), 66187
Rural Housing Service
RULES
Single Family Housing Guaranteed Loan Program:
Special Servicing Options, 66189-66194
Securities and Exchange Commission
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals, 66466-66467
Agency Information Collection Activities; Proposals, Submissions, and
Approvals:
Statement of Changes in Beneficial Ownership of Securities, 66466
Self-Regulatory Organizations; Proposed Rule Changes:
Cboe BYX Exchange, Inc., 66477-66478
Cboe BZX Exchange, Inc., 66478
Cboe EDGA Exchange, Inc., 66473-66477
Miami International Securities Exchange, LLC, 66471-66473
MIAX Emerald, LLC, 66478-66480
MIAX PEARL, LLC, 66463-66465
MIAX Sapphire LLC, 66467-66470
The Nasdaq Stock Market LLC, 66470-66471
Small Business Administration
NOTICES
Hearings, Meetings, Proceedings, etc.:
Advisory Committee on Veterans Business Affairs, 66482-66483
Interagency Task Force on Veterans Small Business Development,
66481-66482
Regional Small Business Regulatory Fairness Boards, 66481-66482
Surrender of License of Small Business Investment Company:
Farragut Mezzanine Partners III, LP, 66482
Fidus Mezzanine Capital II, LP, 66481
Hatteras Venture Partners IV SBIC, LP, 66481
LFE Growth Fund III, LP, 66480
Seacoast Capital Partners III, LP, 66480
Trailhead Fund LP, 66481
[[Page vi]]
State Department
RULES
International Traffic in Arms Regulation:
Definition of Activities That are not Exports, Reexports,
Retransfers, or Temporary Imports, 66210-66214
NOTICES
Cultural Property Agreement:
Government of Mongolia under Article 9 of the 1970 UNESCO
Convention on the Means of Prohibiting and Preventing the
Illicit Import, Export and Transfer, 66483
Government of the Republic of Lebanon under Article 9 of the 1970
UNESCO Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer, 66484
United States and El Salvador, 66484
Hearings, Meetings, Proceedings, etc.:
Cultural Property Advisory Committee, 66483-66484
Substance Abuse and Mental Health Services Administration
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals, 66423-66430
Surface Mining Reclamation and Enforcement Office
RULES
Regulatory Program:
Kentucky, 66214-66218
Utah, 66218-66223
Trade Representative, Office of United States
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals:
301 Exclusion Requests, 66484-66492
Transportation Department
See Federal Aviation Administration
See Federal Motor Carrier Safety Administration
See Federal Transit Administration
Transportation Security Administration
RULES
Air Cargo Security Threat Assessments; Technical Amendment, 66287-66289
Treasury Department
See Bureau of the Fiscal Service
See Comptroller of the Currency
See Foreign Assets Control Office
See Internal Revenue Service
Veterans Affairs Department
NOTICES
Agency Information Collection Activities; Proposals, Submissions, and
Approvals:
Request for Approval of School Attendance and School Attendance
Report, 66506-66507
-----------------------------------------------------------------------
Separate Parts In This Issue
Part II
Federal Deposit Insurance Corporation, 66510-66541
Federal Reserve System, 66510-66541
-----------------------------------------------------------------------
Reader Aids
Consult the Reader Aids section at the end of this issue for phone numbers,
online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing
list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/
new, enter your e-mail address, then follow the instructions to join,
leave, or manage your subscription.
CFR PARTS AFFECTED IN THIS ISSUE
__________________________________________________________
A cumulative list of the parts affected this month can be
found in the Reader Aids section at the end of this issue.
Federal Register / Vol. 89, No. 158 / Thursday, August 15, 2024 /
Contents
Federal Register / Vol. 89, No. 158 / Thursday, August 15, 2024 /
Contents
Federal Register / Vol. 89, No. 158 / Thursday, August 15, 2024 /
Contents
[[Page vii]]
3 CFR
Proclamations:
10790................................................66181
Administrative Orders:
Notices:
Notice of August 13, 2024............................66187
7 CFR
3555.................................................66189
14 CFR
71 (4 documents)................66194, 66196, 66199, 66200
Proposed Rules:
71...................................................66290
17 CFR
48...................................................66201
22 CFR
120..................................................66210
30 CFR
917..................................................66214
944..................................................66218
33 CFR
165..................................................66223
34 CFR
Ch. VI...............................................66225
40 CFR
52 (2 documents)..............................66232, 66234
Proposed Rules:
52 (2 documents)..............................66291, 66295
44 CFR
206..................................................66241
47 CFR
1....................................................66254
79...................................................66268
Proposed Rules:
1....................................................66305
48 CFR
211..................................................66283
212 (2 documents).............................66283, 66285
223..................................................66283
225..................................................66286
226..................................................66283
252 (2 documents).............................66283, 66285
Proposed Rules:
204..................................................66327
209..................................................66338
212..................................................66327
217..................................................66327
252 (2 documents).............................66327, 66338
49 CFR
1540.................................................66287 | usgpo | 2024-10-08T13:26:19.984037 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/FR-2024-08-15-FrontMatter.htm"
} |
FR | FR-2024-08-15/2024-18444 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Presidential Documents]
[Pages 66181-66185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18444]
Presidential Documents
Federal Register / Vol. 89, No. 158 / Thursday, August 15, 2024 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 66181]]
Proclamation 10790 of August 12, 2024
To Further Facilitate Positive Adjustment to
Competition From Imports of Certain Crystalline Silicon
Photovoltaic Cells (Whether or Not Partially or Fully
Assembled Into Other Products)
By the President of the United States of America
A Proclamation
1. On January 23, 2018, pursuant to section 203 of the
Trade Act of 1974, as amended (the ``Trade Act'') (19
U.S.C. 2253), the President issued Proclamation 9693,
imposing a safeguard measure for a period of 4 years
that included both a tariff-rate quota (TRQ) on imports
of certain crystalline silicon photovoltaic (CSPV)
cells, not partially or fully assembled into other
products, provided for in subheading 8541.40.60
(currently 8541.42.00) of the Harmonized Tariff
Schedule of the United States (HTS), and an increase in
duties (safeguard tariff) on imports of CSPV cells
exceeding the TRQ and all imports of other CSPV
products, including modules provided for in subheading
8541.40.60 (currently 8541.43.00) of the HTS.
Proclamation 9693 exempted imports from certain
designated beneficiary countries under the Generalized
System of Preferences from the application of the
safeguard measure.
2. After taking into account the United States
International Trade Commission's (USITC) report on the
results of its monitoring of developments with respect
to the domestic solar industry (USITC, Crystalline
Silicon Photovoltaic Cells, Whether or Not Partially or
Fully Assembled Into Other Products: Monitoring
Developments in the Domestic Industry, No. TA-201-075
(Monitoring)) and the USITC's report regarding the
probable economic effect on the domestic CSPV cell and
module manufacturing industry of modifying the
safeguard measure (USITC, Crystalline Silicon
Photovoltaic Cells, Whether or Not Partially or Fully
Assembled Into Other Products: Advice on the Probable
Economic Effect of Certain Modifications to the
Safeguard Measure, No. TA-201-075 (Modification)), and
after receiving a petition from a majority of the
representatives of the domestic industry with respect
to each of the following modifications, on October 10,
2020, the President issued Proclamation 10101 under
section 204(b)(1)(B) of the Trade Act (19 U.S.C.
2254(b)(1)(B)). In Proclamation 10101, the President
determined that the domestic industry had begun to make
a positive adjustment to import competition, as shown
by the increases in domestic module production
capacity, production, and market share. Proclamation
10101 also:
(a) revoked the exclusion of bifacial modules from
application of the safeguard measure on the basis that
it had impaired and was likely to continue to impair
the effectiveness of the safeguard action; and
(b) adjusted the safeguard tariff for the fourth
year of the safeguard measure from 15 percent to 18
percent on the basis that the exclusion of bifacial
modules from application of the safeguard tariff had
impaired the remedial effectiveness of the 4-year
action proclaimed in Proclamation 9693, and to achieve
the full remedial effect envisaged in that action.
3. On November 16, 2021, the United States Court of
International Trade (CIT) held in Solar Energy
Industries Association et al. v. United States that the
President acted outside of his statutory authority in
issuing Proclamation 10101, and enjoined the Government
from enforcing that proclamation.
[[Page 66182]]
However, in November 2023, a panel of the United States
Court of Appeals for the Federal Circuit reversed the
CIT's decision.
4. After receiving the USITC's December 8, 2021,
determination and report pursuant to section 204(c) of
the Trade Act (19 U.S.C. 2254(c)), which found that the
safeguard action continues to be necessary to prevent
or remedy the serious injury to the domestic industry
and that there was evidence that the domestic industry
was making a positive adjustment to import competition
(USITC, Crystalline Silicon Photovoltaic Cells, Whether
or Not Partially or Fully Assembled Into Other
Products, Investigation No. TA-201-75 (Extension)), and
after taking into account the information provided in
the USITC's report and the information received from
the public through the process published in the Federal
Register on September 30, 2021 (86 FR 54279), pursuant
to section 203(e)(1)(B) of the Trade Act (19 U.S.C.
2253(e)(1)(B)), I issued Proclamation 10339 on February
4, 2022. In Proclamation 10339, I determined that the
safeguard action on imports of CSPV cells, whether or
not partially or fully assembled into other products,
continued to be necessary to prevent or remedy the
serious injury to the domestic industry, and that there
was evidence that the domestic industry was making a
positive adjustment to import competition. I further
determined to extend the safeguard measure proclaimed
in Proclamation 9693, as modified by Proclamation
10101, in relevant part, as follows:
(a) continuation of the TRQ on imports of solar
cells not partially or fully assembled into other
products imposed by Proclamation 9693, as described in
paragraph 1 of Proclamation 10339 and paragraph 1 of
this proclamation, for an additional period of 4 years,
with unchanging within-quota quantities of 5.0
gigawatts (GW) for each year and annual reductions in
the rates of duty applicable to goods entered in excess
of those quantities of cells in the fifth, sixth,
seventh, and eighth years, as described in Annex I to
Proclamation 10339; and
(b) continuation of the safeguard tariff on imports
of modules imposed by Proclamation 9693, as described
in paragraph 1 of Proclamation 10339 and paragraph 1 of
this proclamation, for an additional period of 4 years,
with annual reductions in the fifth, sixth, seventh,
and eighth years, as described in Annex I to
Proclamation 10339.
5. If an extension of an action taken under section 203
of the Trade Act (19 U.S.C. 2253) exceeds 3 years,
section 204(a)(2) of the Trade Act (19 U.S.C.
2254(a)(2)) requires the USITC to issue a report to the
President and the Congress on its monitoring of
developments with respect to the domestic industry,
including the progress and specific efforts made by
workers and firms in the domestic industry to make a
positive adjustment to import competition, no later
than the midpoint of the period of the extension.
6. On February 6, 2024, the USITC issued its midterm
report pursuant to section 204(a)(2) of the Trade Act
(19 U.S.C. 2254(a)(2)) on its monitoring of
developments within the industry producing CSPV
products since the President's extension of the
safeguard measure (USITC, Crystalline Silicon
Photovoltaic Cells, Whether or Not Partially or Fully
Assembled Into Other Products: Monitoring Developments
in the Domestic Industry, No. TA-201-075 (Second
Monitoring)). In its report, the USITC found that the
safeguard measure has resulted in positive adjustments
from the domestic industry in light of increased actual
and planned module production; various announcements of
planned domestic cell production; and improvements in
several of the domestic industry's financial, trade,
and employment indicators.
7. On September 19, 2023, a majority of the
representatives of the domestic industry submitted a
petition under section 204(b) of the Trade Act (19
U.S.C. 2254(b)(1)(B)) to modify the safeguard measure
by eliminating the TRQ and providing for tariff-free
treatment of all imports of CSPV cells, or
alternatively to increase the TRQ from 5 GW to 20 GW
annually. The petition explains how the domestic
industry has continued to make a positive adjustment to
import competition. It also explains that expected
domestic
[[Page 66183]]
module production coupled with current lack of
sufficient domestic cell production will require
domestic module producers to rely on imports in the
near term, in excess of the current 5 GW within-quota
TRQ amount.
8. Section 204(b)(1)(B) of the Trade Act (19 U.S.C.
2254(b)(1)(B)) authorizes the President, upon
submission of a petition from a majority of the
representatives of the domestic industry, to reduce,
modify, or terminate an action taken under section 203
of the Trade Act when the President determines that the
domestic industry has made a positive adjustment to
import competition.
9. After taking into account the information provided
in the USITC's midterm report, and after receiving a
petition from a majority of the representatives of the
domestic industry requesting expansion or elimination
of the TRQ on imports of certain CSPV cells, I have
determined that the domestic industry has been making
and is continuing to make a positive adjustment to
import competition, shown by increased actual and
planned module production; various announcements of
planned domestic cell production; and improvements in
several of the domestic industry's financial, trade,
and employment indicators. Furthermore, I have
determined that expected domestic module production and
associated imports of CSPV cells have increased such
that it is necessary to modify the action taken in
Proclamation 9693, as extended by Proclamation 10339,
by expanding the TRQ to unchanging within-quota
quantities of 12.5 GW.
10. The in-quota quantity in each year of the TRQ
described in paragraph 9 of this proclamation shall be
allocated among all countries except those countries
the products of which are excluded from such TRQ
pursuant to clause (4) of Proclamation 10339 or
paragraph 10 of Proclamation 9693.
NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of
the United States of America, by the authority vested
in me by the Constitution and the laws of the United
States, including sections 203, 204, and 604 of the
Trade Act, do proclaim that:
(1) In order to modify the action applicable to imports of CSPV cells under
HTS subheading 8541.42.0010 and other CSPV products, such as modules under
HTS subheading 8541.43.0010, subchapter III of chapter 99 of the HTS is
modified as set forth in Annex I to this proclamation.
(2) The modifications to the HTS made by this proclamation, including Annex
I hereto, shall be effective with respect to goods entered for consumption,
or withdrawn from warehouse for consumption, on or after 12:01 a.m. eastern
daylight time on August 1, 2024, and shall continue in effect as provided
in Annex I to this proclamation, unless such actions are earlier expressly
reduced, modified, or terminated.
(3) CSPV products that are subject to the modifications described in clause
(1) of this proclamation, and which are entered into the United States
above the prior TRQ limit of 5 GW on or after August 1, 2024, shall be
included within the modified TRQ limit of 12.5 GW and shall not be assessed
safeguard tariffs unless they enter into the United States above the
modified TRQ limit of 12.5 GW.
(4) U.S. Customs and Border Protection shall take such actions as are
necessary to ensure proper application of clauses (1), (2), and (3) of this
proclamation.
(5) One year from the termination of the safeguard measure referenced in
this proclamation, as modified by this proclamation, the U.S. note and
tariff provisions established in Annex I to this proclamation shall be
deleted from the HTS.
(6) Any provision of previous proclamations and Executive Orders that is
inconsistent with the actions taken in this proclamation is superseded to
the extent of such inconsistency.
[[Page 66184]]
IN WITNESS WHEREOF, I have hereunto set my hand this
twelfth day of August, in the year of our Lord two
thousand twenty-four, and of the Independence of the
United States of America the two hundred and forty-
ninth.
(Presidential Sig.)
Billing code 3395-F4-P
[[Page 66185]]
[GRAPHIC] [TIFF OMITTED] TD15AU24.000
[FR Doc. 2024-18444
Filed 8-14-24; 8:45 am]
Billing code 7020-02-C | usgpo | 2024-10-08T13:26:19.995959 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-18444.htm"
} |
FR | FR-2024-08-15/2024-18450 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Presidential Documents]
[Page 66187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18450]
Presidential Documents
Federal Register / Vol. 89, No. 158 / Thursday, August 15, 2024 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 66187]]
Notice of August 13, 2024
Continuation of the National Emergency With
Respect to Export Control Regulations
On August 17, 2001, the President issued Executive
Order 13222 pursuant to the International Emergency
Economic Powers Act (50 U.S.C. 1701 et seq.). In that
order, the President declared a national emergency with
respect to the unusual and extraordinary threat to the
national security, foreign policy, and economy of the
United States related to the expiration of the Export
Administration Act of 1979, as amended (50 U.S.C. 4601
et seq.). Because the implementation of certain
sanctions authorities, including sections 11A, 11B, and
11C of such Export Administration Act of 1979,
consistent with section 1766(b) of Public Law 115-232,
the Export Control Reform Act of 2018 (50 U.S.C. 4801
note), is to be carried out under the International
Emergency Economic Powers Act, the national emergency
declared on August 17, 2001, must continue in effect
beyond August 17, 2024. Therefore, in accordance with
section 202(d) of the National Emergencies Act (50
U.S.C. 1622(d)), I am continuing for 1 year the
national emergency declared in Executive Order 13222,
as amended by Executive Order 13637 of March 8, 2013.
This notice shall be published in the Federal Register
and transmitted to the Congress.
(Presidential Sig.)
THE WHITE HOUSE,
August 13, 2024.
[FR Doc. 2024-18450
Filed 8-14-24; 8:45 am]
Billing code 3395-F4-P | usgpo | 2024-10-08T13:26:20.016685 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-18450.htm"
} |
FR | FR-2024-08-15/2024-18291 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66189-66194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18291]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 89, No. 158 / Thursday, August 15, 2024 /
Rules and Regulations
[[Page 66189]]
DEPARTMENT OF AGRICULTURE
Rural Housing Service
7 CFR Part 3555
[Docket No. RHS-24-SFH-0001]
RIN 0575-AD28
Single Family Housing Guaranteed Loan Program Changes Related to
Special Servicing Options
AGENCY: Rural Housing Service, U.S. Department of Agriculture (USDA).
ACTION: Final rule.
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SUMMARY: The Rural Housing Service (RHS or Agency), a Rural Development
(RD) agency of the United States Department of Agriculture (USDA), is
implementing changes to the Single-Family Housing Guaranteed Loan
Program (SFHGLP) to amend the current regulations regarding Special
Servicing Options and adjust the Mortgage Recovery Advance (MRA)
process. This final rule is intended to benefit borrowers and lenders
by providing lenders more flexibility in their servicing options,
offering a less expensive and less cumbersome MRA process, and reduce
program risk of the guaranteed loan portfolio.
DATES: This final rule is effective February 11, 2025.
FOR FURTHER INFORMATION CONTACT: Ticia Weare, Finance and Loan Analyst,
Single Family Housing Guaranteed Loan Division, Rural Development, U.S.
Department of Agriculture, STOP 0784, South Agriculture Building, 1400
Independence Avenue SW, Washington, DC 20250-0784. Telephone: (314)
679-6919; or email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The USDA RHS offers a variety of programs to build or improve
housing and essential community facilities in rural areas. RHS offers
loans, grants, and loan guarantees for single- and multi-family
housing, childcare centers, fire and police stations, hospitals,
libraries, nursing homes, schools, first responder vehicles and
equipment, housing for farm laborers and much more. RHS also provides
technical assistance loans and grants in partnership with non-profit
organizations, Indian tribes, State and Federal Government agencies,
and local communities.
Under the authority of the Housing Act of 1949 (42 U.S.C. 1471 et
seq.), as amended, the SFHGLP makes loan guarantees to provide low- and
moderate-income persons in rural areas an opportunity to own decent,
safe, and sanitary dwellings and related facilities. The RHS
administers the SFHGLP that provides a 90% Loan Note Guarantee to
approved lenders to reduce the lender's risk of extending loans to low-
and moderate-income households in rural areas. Approved lenders make
the initial eligibility determinations, and the Agency reviews those
determinations to make a final eligibility decision.
This program helps lenders work with low- and moderate-income
households living in rural areas to make homeownership a reality.
Providing affordable homeownership opportunities promotes prosperity,
which in turn creates thriving communities and improves the quality of
life in rural areas.
The RHS published a proposed rule on January 27, 2023 (88 FR 5275)
to amend the current regulation for the SFHGLP found in 7 CFR part
3555. This final rule will amend 7 CFR part 3555 to implement changes
related to the use of Special Servicing Options for Non-Performing
Loans. The changes to the current regulation will benefit borrowers by
offering a less cumbersome option to eliminate documentation and
eligibility challenges for borrowers who do not require payment
reduction, while providing lenders more flexibility in their servicing
options and reducing program risk of the guaranteed loan portfolio.
The SFHGLP is authorized by section 502(h) of the Housing Act of
1949, (42 U.S.C. 1472(h)), as amended. 7 CFR part 3555 sets forth the
regulatory requirements of the SFHGLP which includes policies regarding
originating, servicing, holding, and liquidating SFHGLP loans. SFHGLP
approved lenders make the initial eligibility determinations, and the
Agency reviews those determinations to make a final eligibility
decision. In Sec. 3555.303, lenders are provided several traditional
servicing options for Non-Performing Loans. The use of special
servicing options in Sec. 3555.304 is provided if the traditional
servicing options provided in Sec. 3555.303 have been exhausted or the
lender has determined that the use of such servicing options would not
resolve the delinquency.
RHS is issuing a final rule to amend Sec. Sec. 3555.303 and .304
to incorporate the MRA as a part of the regular servicing options in
Sec. 3555.303 and allow for streamline servicing options in Sec.
3555.304. This final rule also adjusts the MRA process to make it less
cumbersome and eliminates documentation and eligibility challenges for
borrowers who do not require payment reduction.
II. Discussion of Public Comments Received on March 28, 2023, Proposed
Rule
The Agency received comments from 12 respondents, including
mortgage lenders, associations, and other interested parties. Specific
public comments are addressed below:
Public Comment: One respondent suggested that the Agency combine
both Sec. 3555.303 (traditional servicing options) with Sec. 3555.304
to maintain the COVID-19 loss mitigation waterfall and provide specific
guidance in HB-1-3555. Further, the respondent suggested the Agency
maintain the standalone MRA as the first option in the waterfall for
borrowers who do not require payment reduction; eliminate financial
reviews for seriously delinquent borrowers; retain a target payment
reduction of 20 percent for borrowers who cannot resume an affordable
new payment; and allow the MRA to be combined with a 30 or 40 year loan
modification, allowing borrowers to defer additional principal if MRA
funds are available.
Agency's Response: The Agency appreciates the commenter's response.
The Agency agrees changes to Sec. 3555.303 in addition to changes in
Sec. 3555.304 may assist in loss mitigation and amends the proposed
rule accordingly. The final rule incorporates the MRA into Sec.
3555.303, maintaining the MRA as either a standalone option or combined
with a loan modification. The Agency agrees additional flexibility
[[Page 66190]]
in servicing options may assist in preventing unnecessary foreclosures.
The final rule amends Sec. 3555.304 to provide streamline servicing
options to provide the borrower with at least a 10 percent reduction to
their principal and interest payment with no consideration of the
borrower's financials. The Agency agrees with the respondent that the
option to extend the loan term as suggested may assist in loss
mitigation, therefore, the final rule provides the ability to extend
the loan term after reamortization up to 40 years when necessary to
demonstrate repayment ability. Additionally, the Agency will amend
Sec. 3555.303 to add section (b)(3)(vi) indicating the order in which
that traditional servicing options will be established.
Public Comment: Four respondents replied that they were in favor of
the proposed rule, some indicating that eliminating the subordinate
lien is a worthy regulatory reform priority for post-pandemic mortgage
servicing. However, they have expressed their opinion that this may
place an undue burden on the lender and the borrower for collection of
a balloon payment of the non-interest-bearing promissory note at the
maturity of the interest-bearing loan. These respondents recommend that
the Agency allow servicers to assign the servicing advance MRA to USDA
at maturity of the interest-bearing original note, stating that the
Agency has greater flexibility to help such homeowners avoid
foreclosure.
Agency's Response: The Agency appreciates the support, as well as
the suggested revision. It is anticipated that only a small percentage
of loans will reach maturity. The Agency has not amended the final rule
as recommended; however, the Agency is amending Sec. 3555.303 to allow
an MRA to be combined with up to a 40-year loan modification term,
allowing borrowers to defer the additional principal if MRA funds are
available. The opportunity to defer the additional principal will
ensure borrowers are able to achieve the target payment. Additionally,
the Agency is not opposed to allowing the servicer additional
collection time if the lien is not released prior to the loan,
including the MRA, being paid in full. The Agency will continue to work
with the industry to provide alternative solutions.
Public Comment: Four respondents requested that clarification be
provided in the rule to allow lenders to provide multiple MRAs
throughout the life of the loan.
Agency's Response: The Agency appreciates the commenters'
responses, as well as the suggested revision. The Agency has amended
the rule to allow multiple MRAs and to clarify what conditions must be
present to allow additional MRAs.
Public Comment: One respondent suggested that the Agency exempt
small servicers from the provisions of the new rule, explaining that
requiring servicers to collect the unsecured debt the homeowner owes to
USDA puts them in the position of becoming third party debt collectors
and creates a different relationship than what a Housing Finance Agency
servicer agreed to when their agency agreed to offer and service SFHGLP
loans as part of their single-family program offerings.
Agency's Response: The Agency appreciates the commenter's response.
It is anticipated that only a small percentage of loans will reach
maturity. The Agency has not amended the rule as recommended; however,
the Agency is amending the CFR to allow an MRA to be combined with up
to a 40-year loan modification term, allowing borrowers to defer the
additional principal if MRA funds are available. The opportunity to
defer the additional principal will ensure borrowers are able to
achieve the target payment. Additionally, the Agency is not opposed to
allowing the servicer additional collection time if the lien is not
released prior to the loan, including the MRA, being paid in full. The
Agency will continue to work with the industry to provide alternative
solutions.
Public Comment: One respondent suggested that the Agency require
borrowers to execute a standard MRA agreement.
Agency's Response: The Agency appreciates the commenter's response.
The Agency understands it is important that variances in State laws are
considered. An optional attachment for use by the lender will be made
available on the Agency's LINC Training and Resource Library, located
at rd.usda.gov/resources/usda-linc-training-resource-library.
Public Comment: One respondent suggested that the Agency allow
servicers to recover incentives after completing an MRA.
Agency's Response: The Agency appreciates the commenter's response.
The Agency agrees that an incentive for completing the MRA is a
reasonable request and will consider them in the future.
Public Comment: One respondent suggested that the Agency provide
guidance that specifies how funds are to be applied when the servicer
receives funds in excess of the Principal, Interest, Taxes and
Insurance (PITI).
Agency's Response: The Agency appreciates the commenter's response.
The Agency agrees that it is more beneficial to the borrower to apply
any additional funds to the interest-bearing loan first, however, the
Agency does not feel it should dictate to the servicer and borrower how
partial prepayments should be applied.
Public Comment: One respondent suggested that the Agency provide
guidance that specifies how the MRA should be addressed in the event of
a short sale or foreclosure bidding process.
Agency's Response: The Agency appreciates the commenter's response.
The Agency agrees that guidance should be provided. Such guidance will
be provided in Handbook-1-3555.
Public Comment: Two respondents suggested that the Agency permit
servicers to modify the repayment date of the MRA.
Agency's Response: The Agency appreciates the commenters' response.
The Agency is amending Sec. 3555.303 to allow an MRA to be combined
with up to a 40-year loan modification term, allowing borrowers to
defer the additional principal if MRA funds are available. The
opportunity to defer the additional principal will ensure borrowers are
able to achieve the target payment. The Agency is not opposed to
allowing the servicer additional collection time if the lien is not
released prior to the loan, including the MRA, being paid in full. The
final rule revises Sec. 3555.303 to indicate that the MRA may be paid
to the Agency when the payment is received from the borrower; or when
the mortgage lien is released; or when the borrower transfers title to
the property by voluntary or involuntary means.
Public Comment: One respondent suggested that the Agency provide
guidance to servicers instructing them to notify borrowers that the MRA
balance is coming due no later than six months prior to the maturity of
their mortgage and that the Agency provide potential solutions for
paying off the remaining MRA balance and that this be included in Sec.
3555.304.
Agency's Response: The Agency appreciates the commenter's response.
The Agency agrees that servicers providing advanced notice of the MRA
payoff obligation could prevent unnecessary foreclosures and will
provide such guidance.
Public Comment: One respondent suggested that the Agency reassess
the loss mitigation regulations in Sec. 3555.303 and Sec. 3555.304 to
allow for more flexible servicing options to provide
[[Page 66191]]
borrowers with effective solutions to quickly resolve financial
hardships.
Agency's Response: The Agency appreciates the commenter's response.
The Agency agrees that additional flexibility in servicing options may
assist in preventing unnecessary foreclosure. The final rule amends
Sec. 3555.303 to incorporate the MRA into traditional servicing
options and amends Sec. 3555.304 to provide streamline servicing
options when traditional servicing options have been exhausted, the
borrower is at least 90 days delinquent, and prior to any acceleration
or foreclosure action.
Public Comment: One respondent suggested that the Agency ensure
modified loans with a deferred balance be redelivered to Ginnie Mae.
Agency's Response: The Agency appreciates the commenter's response
and agrees that preserving access to liquidity is an important
component to preserving affordable homeownership. The Agency will
continue to work with Ginnie Mae and others to provide options that
preserve liquidity.
III. Summary of Changes to Rule
The following changes were included in the proposed rule:
In Sec. 3555.304(b)(3), remove language pertaining to title search
and recording fees as these services will no longer be utilized by the
lender.
Additional Changes to Rule as a Result of Comments Received
As a result of the comments received, Sec. 3555.303 will be
amended as follows:
Move (b)(3)(iv) to (b)(3)(i) to emphasize that the lender's lien
priority cannot be affected by providing a loan modification. This will
renumber the remaining section.
Revise section (b)(3)(iii), formerly (ii), to clarify that fees and
costs associated with the delinquency may be included in the loan
modification.
Revise section (b)(3)(iv), formerly (iii), to extend the repayment
term for up to 40 years from the date of modification.
Add section (b)(3)(vi) indicating that traditional servicing
options will be used in the order established to incorporate the
addition of the MRA in the traditional servicing waterfall.
Add section (b)(3)(vii) to clarify that a mortgage recovery advance
may be considered if the targeted income to ratio mortgage payment
cannot be reached.
Add section (b)(4) to incorporate the MRA as a part of traditional
servicing options.
Add section (b)(4)(V) to clarify that the lender may file a claim
for reimbursement of reasonable title search and/or recording fees.
As a result of the comments received, Sec. 3555.304 will be
further amended as follows:
Revise the title of Sec. 3555.304 to change ``Special'' to
Streamline'' and replace throughout the section.
Revise (a)(1) to clarify that the lender must exhaust all
traditional loss mitigation options prior to offering the streamline
servicing options.
Revise (a)(3) to indicate the streamline servicing options must
provide the borrower with at least a 10 percent reduction to their
principal and interest payment.
Remove (a)(4) since it is no longer applicable to streamlined
servicing options.
Revise (b)(1) to eliminate the ratio cap for total debt to income
and add that the borrower must be at least 90 days delinquent and
streamline servicing shall be considered prior to initiation of any
legal acceleration or foreclosure action.
Revise (b)(3) to remove the sentence on fees associated with
foreclosure due to the requirement that streamline servicing must occur
prior to any legal foreclosure action commencing.
Revise (c) to allow the servicer to extend the repayment term to 40
years, unless limited to 30 years by the investor.
Revise (c)(1) to remove reference to foreclosure fees and costs, as
well as tax and insurance advances since foreclosure will not have
commenced under the streamline option.
Revise (c)(3) to allow the servicer to extend the repayment term to
40 years, unless limited to provide the borrower a principal and
interest reduction of at least 10 percent.
Revise (c)(4) to clarify that if the targeted mortgage payment
reduction cannot be achieved using a modification as described in this
section, the loan is not eligible for streamline loan servicing and
acceleration, or foreclosure may be initiated.
Delete (d) as the section provides guidance for the MRA
requirements and procedures, and this entire section has been modified
and reincorporated into Sec. 3555.303(b)(4).
This final rule continues the Agency's on-going efforts to improve
delivery and mitigate risk of the SFHGLP.
IV. Regulatory Information
Statutory Authority
Section 510(k) of Title V the Housing Act of 1949 [42 U.S.C.
1480(k)], as amended, authorizes the Secretary of the Department of
Agriculture to promulgate rules and regulations as deemed necessary to
carry out the purpose of that title.
Executive Order 12372, Intergovernmental Review of Federal Programs
This program is not subject to the requirements of Executive Order
12372, ``Intergovernmental Review of Federal Programs,'' as implemented
under USDA's regulations at 7 CFR part 3015.
Executive Order 12866, Regulatory Planning and Review
This final rule has been determined to be non-significant and,
therefore, was not reviewed by the Office of Management and Budget
(OMB) under Executive Order 12866.
Executive Order 12988, Civil Justice Reform
This final rule has been reviewed under Executive Order 12988. In
accordance with this rule: (1) unless otherwise specifically provided,
all state and local laws that conflict with this rule will be
preempted; (2) no retroactive effect will be given to this rule except
as specifically prescribed in the rule; and (3) administrative
proceedings of the National Appeals Division of the Department of
Agriculture (7 CFR part 11) must be exhausted before suing in court
that challenges action taken under this rule.
Executive Order 13132, Federalism
The policies contained in this final rule do not have any
substantial direct effect on states, on the relationship between the
national government and states, or on the distribution of power and
responsibilities among the various levels of government. This rule does
not impose substantial direct compliance costs on state and local
governments. Therefore, consultation with the states is not required
and a federal summary impact statement is not required.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
This final rule has been reviewed in accordance with the
requirements of Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments.'' Executive Order 13175 requires
Federal agencies to consult and coordinate with Tribes on a government-
to-government basis on policies that have Tribal implications,
including regulations, legislative comments or proposed legislation,
and other policy statements or actions that have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal Government and Indian Tribes or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
[[Page 66192]]
The Agency has determined that this final rule does not, to our
knowledge, have tribal implications that require formal tribal
consultation under Executive Order 13175. If a Tribe requests
consultation, the Rural Housing Service will work with the Office of
Tribal Relations to ensure meaningful consultation is provided where
changes, additions and modifications identified herein are not
expressly mandated by Congress.
Regulatory Flexibility Act
This final rule has been reviewed with regard to the requirements
of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned
has determined and certified by signature on this document that this
rule will not have a significant economic impact on a substantial
number of small entities since this rulemaking action does not involve
a new or expanded program nor does it require any more action on the
part of a small business than required of a large entity.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effect of their regulatory actions on state, local, and tribal
governments, and the private sector. Under section 202 of the UMRA, the
Agency generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``federal
mandates'' that may result in expenditures to state, local, or tribal
governments; in the aggregate, or to the private sector of $100 million
or more, in any one year. When such a statement is needed for a rule,
section 205 of the UMRA generally requires the Agency to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule.
This final rule contains no federal mandates (under the regulatory
provisions of Title II of the UMRA) for state, local, and tribal
governments, or the private sector. Therefore, this rule is not subject
to the requirements of sections 202 and 205 of the UMRA.
National Environmental Policy Act
In accordance with the National Environmental Policy Act of 1969,
Public Law 91-190, this final rule has been reviewed in accordance with
7 CFR part 1970 (``Environmental Policies and Procedures''). The Agency
has determined that (i) this action meets the criteria established in 7
CFR 1970.53(f); (ii) no extraordinary circumstances exist; and (iii)
the action is not ``connected'' to other actions with potentially
significant impacts, is not considered a ``cumulative action'' and is
not precluded by 40 CFR 1506.1. Therefore, the Agency has determined
that the action does not have a significant effect on the human
environment, and therefore neither an Environmental Assessment nor an
Environmental Impact Statement is required.
Civil Rights Impact Analysis
Rural Development has reviewed this final rule in accordance with
USDA Regulation 4300-4, Civil Rights Impact Analysis, to identify any
major civil rights impacts the rule might have on program participants
on the basis of age, race, color, national origin, sex, or disability,
gender identity (including gender expression), genetic information,
political beliefs, sexual orientation, marital status, familial status,
parental status, veteran status, religion, reprisal and/or resulting
from all or a part of an individual's income being derived from any
public assistance program. This final rule is within a Guarantee-based
program. Guarantees are not covered under Title VI of the Civil Rights
Act of 1964, Section 504 of the Rehabilitation Act of 1973, and Title
IX of the Education Amendments Act of 1972, as amended, when the
Federal assistance does not include insurance or interest credit loans.
Lenders must comply with other applicable Federal laws, including Equal
Employment Opportunities, the Equal Credit Opportunity Act, the Fair
Housing Act, and the Civil Rights Act of 1964. Guaranteed loans that
involve the construction of or addition to facilities that accommodate
the public must comply with the Architectural Barriers Act
Accessibility Standard. The borrower and lender are responsible for
ensuring compliance with these requirements.
Assistance Listing
The program affected by this final rule is listed in the Assistance
Listing Catalog (formerly Catalog of Federal Domestic Assistance) under
number 10.410, Very Low to Moderate Income Housing Loans (Section 502
Rural Housing Loans).
Paperwork Reduction Act
The information collection requirements contained in this
regulation have been approved by OMB and have been assigned OMB control
number 0575-0179. This final rule contains no new reporting or
recordkeeping requirements that would require approval under the
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
E-Government Act Compliance
Rural Development is committed to the E-Government Act, which
requires Government agencies in general to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible.
USDA Non-Discrimination Policy
In accordance with Federal civil rights laws and U.S. Department of
Agriculture (USDA) civil rights regulations and policies, the USDA, its
Mission Areas, agencies, staff offices, 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/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.
Program information may be made available in languages other than
English. Persons with disabilities who require alternative means of
communication to obtain program information (e.g., Braille, large
print, audiotape, American Sign Language) should contact the
responsible Mission Area, agency, or staff office; or the Federal Relay
Service at (800) 877-8339.
To file a program discrimination complaint, a complainant should
complete a Form AD-3027, USDA Program Discrimination Complaint Form,
which can be obtained online at usda.gov/sites/default/files/documents/ad-3027.pdf from any USDA office, by calling (866) 632-9992, or by
writing a letter addressed to USDA. The letter must contain the
complainant's name, address, telephone number, and a written
description of the alleged discriminatory action in sufficient detail
to inform the Assistant Secretary for Civil Rights (ASCR) about the
nature and date of an alleged civil rights violation. The completed AD-
3027 form or letter must be submitted to USDA by:
(1) Mail: U.S. Department of Agriculture, Office of the Assistant
Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC
20250-9410; or
[[Page 66193]]
(2) Fax: (833) 256-1665 or (202) 690-7442; or
(3) Email: [email protected].
USDA is an equal opportunity provider, employer, and lender.
List of Subjects in 7 CFR Part 3555
Administrative practice and procedure, Business and industry,
Conflicts of interest, Credit environmental impact statements, Fair
housing, Flood insurance, Grant programs--housing and community
development, Home improvement, Housing, Loan programs--housing and
community development, Low- and moderate-income housing, Manufactured
homes, Mortgage insurance, Mortgages, Reporting and recordkeeping
requirements, Rural areas.
For the reasons discussed in the preamble, the Agency is amending 7
CFR part 3555 as follows:
PART 3555--GUARANTEED RURAL HOUSING PROGRAM
0
1. The authority citation for part 3555 continues to read as follows:
Authority: 5 U.S.C. 301; 42 U.S.C. 1471 et seq.
Subpart G--Servicing Non-Performing Loans
0
2. Revise and republish Sec. 3555.303 to read as follows:
Sec. 3555.303 Traditional servicing options.
(a) Eligibility. To be eligible for traditional servicing, all the
following conditions must be met:
(1) The borrower presently occupies the property;
(2) The borrower is in default or facing imminent default for an
involuntary reason. A borrower is ``facing imminent default'' if that
borrower is current or less than 30 days past due on the mortgage
obligation and is experiencing a significant reduction in income or
some other hardship that will prevent him or her from making the next
required payment on the mortgage during the month in which it is due.
The borrower must be able to document the cause of the imminent
default, which may include, but is not limited to, one or more of the
following types of hardship:
(i) A reduction in or loss of income that was supporting the
mortgage loan;
(ii) A change in household financial circumstances;
(3) The borrower demonstrates a reasonable ability to support
repayment of the debt in the future;
(4) There are no adverse property conditions that inhibit the
inhabitability or use of the property; and
(5) The borrower has not received assistance due to the submission
of false information by the borrower.
(b) Servicing options. The lender must consider traditional
servicing options in the following order to resolve the borrower's
default or imminent default:
(1) Repayment agreement. A repayment agreement is an informal plan
lasting 3 months or less to cure short-term delinquencies.
(2) Special forbearance agreement. A special forbearance agreement
is a longer-term formal plan to cure a delinquency not to exceed the
equivalent of 12 months of PITI. The agreement may gradually increase
monthly payments in an amount sufficient to repay the arrearage over a
reasonable amount of time and/or temporarily reduce or suspend payments
for a short period. If the borrower is at least 3 months delinquent,
the special forbearance agreement may resume normal payments for
several months followed by a loan modification.
(3) Loan modification plan. A loan modification is a permanent
change in one or more of the terms of a loan that results in a payment
the borrower can afford and allows the loan to be brought current. A
loan modification must be a written agreement. (i) The lender's lien
priority cannot be adversely affected by providing a loan modification.
(ii) Loan modifications must be a fixed interest rate and cannot
exceed the market interest rate at the time of modification.
(iii) Loan modifications may capitalize all or a portion of the
arrearage and/or reamortization of the balance due including
foreclosure fees and costs associated with the delinquency, tax and
insurance advances, and past due Agency annual fees imposed by the
lender. Late charges and lender fees may not be capitalized.
(iv) If necessary to demonstrate repayment ability, the loan term
after reamortization may be extended for up to 40 years from the date
of the loan modification.
(v) Lenders may require that borrowers complete a trial payment
plan prior to making scheduled payments amended by the traditional loan
servicing loan modification.
(vi) Traditional servicing options shall be used in the order
established in this section to reduce the borrower's mortgage payment
to income ratio as close as possible to 31 percent of gross monthly
income.
(vii) If the targeted mortgage payment to income cannot be achieved
using a loan modification alone, the lender may consider a mortgage
recovery advance under this section in addition to the loan
modification.
(4) Mortgage recovery advance. A mortgage recovery advance is funds
advanced by the lender on behalf of a borrower to satisfy the
borrower's arrearage and reduce principal.
(i) Borrowers may be eligible for multiple Mortgage Recovery
Advances up to a cumulative amount that is less than or equal to 30
percent of the unpaid principal balance as of the date of the initial
default.
(ii) If the borrower's total monthly mortgage payment is within a
reasonable percent of the borrower's ability to repay prior to an
extended term loan modification, the mortgage recovery advance can be
used to cure the borrower's delinquency without changing the terms of
the promissory note.
(iii) The principal deferment amount for a specific case shall be
limited to the amount that will bring the borrower's total monthly
mortgage payment to 31 percent of gross monthly income.
(iv) If the borrower is eligible for a mortgage recovery advance,
the servicer will advance the funds to the borrower's account and
create a non-interest-bearing recoverable servicing advance. The
balance is to be provided on the mortgage statements along with the
principal balance of the loan, but no payment arrangement will be
required.
(v) Prior to making a mortgage recovery advance, the lender must
perform an escrow analysis to ensure that the payment made on behalf of
the borrower accurately reflects the escrow amount required for taxes
and insurance.
(vi) The lender may request reimbursement from the Agency for a
mortgage recovery advance. The lender shall repay any such
reimbursement as provided in this section.
(vii) The following terms apply to the repayment of a mortgage
recovery advance:
(A) Borrowers are not required to make any monthly or periodic
payments on the mortgage recovery advance; however, borrowers may
voluntarily submit partial payments without incurring any prepayment
penalty.
(B) The borrower is responsible for payment of the mortgage
recovery advance to the lender in full at the earlier of the following:
(1) When the first lien mortgage and guaranteed note are paid off;
or
[[Page 66194]]
(2) When the borrower transfers title to the property by voluntary
or involuntary means.
(C) The lender shall remit to the agency the amount mortgage
recovery advance reimbursed by the Agency for a mortgage recovery
advance, as described in this part, at the earliest of the following:
(1) When the lender receives payment is received from the borrower;
or
(2) When the mortgage lien is released; or
(3) When the borrower transfers title to the property by voluntary
or involuntary means.
(i) The Agency will collect this Federal Debt from the lender. The
Agency may use the debt collection and administrative offset process to
collect money owed.
(ii) In the event of a loss claim, the mortgage recovery advance
will be considered in calculating the claim paid by the Agency. The
total amount paid cannot exceed the maximum loss payment described in
Sec. 3555.351(b).
(iii) Borrowers are not required to make any monthly or periodic
payments on the mortgage recovery advance note; however, borrowers may
voluntarily submit partial payments without incurring any prepayment
penalty.
(c) Terms of loan note guarantee. Use of traditional servicing
options does not change the terms of the loan note guarantee except
when the traditional servicing option meets the requirements of
paragraph (b)(3)(iv) of this section. The loan guarantee will apply to
loan terms extending beyond the 30-year loan term from the date of
origination when a loan modification meets the criteria set forth in
paragraph (b)(3)(iv).
0
3. Revise and republish Sec. 3555.304 to read as follows:
Sec. 3555.304 Streamline servicing options.
(a) General. (1) Lenders must exhaust traditional servicing options
outlined in this part without received a completed package to be used
in evaluating the borrower for traditional servicing options and have
sent a demand letter in accordance with Sec. 3555.306 to the borrower
prior to consideration of streamline servicing options.
(2) Use of streamline loan servicing does not change the terms of
the loan note guarantee.
(3) Streamline options may be provided to the borrower with at
least a 10 percent reduction to their principal and interest payment
with no consideration of the borrower's financials.
(b) Conditions for streamline servicing options. In addition to the
requirements in Sec. 3555.303(a), the following conditions apply to
all special loan servicing:
(1) The borrower must be at least 90 days past due and prior to
initiation of any acceleration or foreclosure action.
(2) The borrower must successfully complete a trial payment plan of
sufficient duration, as determined by the Agency, to demonstrate that
the borrower will be able to make regularly scheduled payments as
modified by the special loan servicing.
(3) Expenses related to streamline loan servicing including, but
not limited to, title search and recording fees, shall not be charged
to the borrower.
(4) Capitalization of late charges and lender fees is not permitted
in the special loan servicing option.
(c) Extended streamline loan modification. The Lender may modify
the loan by reducing the interest rate to a level at or below the
maximum allowable interest rate and extending the repayment term to 40
years from the date of loan modification. The servicer may limit the
extension to 30 years if limited by any investor or pooling
restrictions. The loan guarantee will apply to loan terms extending
beyond the 30-year loan term from the date of origination when a loan
modification meets the criteria set forth in this section.
(1) Streamline loan modifications may capitalize all or a portion
of the arrearage and/or reamortization of the balance due including,
tax and insurance advances and past due Agency annual fees imposed by
the lender. Late charges and lender fees may not be capitalized.
(2) Streamline loan modifications must be a fixed interest rate and
cannot exceed the current market interest rate at the time of
modification. When reducing the interest rate, the maximum rate is
subject to paragraph (c)(3) of this section.
(3) The term shall be extended to a maximum of 40 years as noted
above to provide the borrower with at least a 10 percent reduction in
their principal and interest payment.
(4) If the targeted mortgage payment reduction cannot be achieved
using a modification as described in this section, the loan is not
eligible for streamline loan servicing and foreclosure may be
initiated.
Joaquin Altoro,
Administrator, Rural Housing Service.
[FR Doc. 2024-18291 Filed 8-14-24; 8:45 am]
BILLING CODE 3410-XV-P | usgpo | 2024-10-08T13:26:20.096147 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-18291.htm"
} |
FR | FR-2024-08-15/2024-17722 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66194-66196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17722]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. FAA-2023-2502; Airspace Docket No. 23-ASO-15]
RIN 2120-AA66
Establishment of United States Area Navigation (RNAV) Route Q-108
and Revocation of RNAV Route Q-104; Eastern United States
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action establishes United States Area Navigation (RNAV)
Route Q-108 and revokes RNAV Route Q-104 in the eastern United States.
This action supports the Northeast Corridor Atlantic Coast Routes (NEC
ACR) Optimization Project to improve the efficiency of the National
Airspace System (NAS).
DATES: Effective date 0901 UTC, October 31, 2024. The Director of the
Federal Register approves this incorporation by reference action under
1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11
and publication of conforming amendments.
ADDRESSES: A copy of the Notice of Proposed Rulemaking (NPRM), all
comments received, this final rule, and all background material may be
viewed online at www.regulations.gov using the FAA Docket number.
Electronic retrieval help and guidelines are available on the website.
It is available 24 hours each day, 365 days each year.
FAA Order JO 7400.11H, Airspace Designations and Reporting Points,
and subsequent amendments can be viewed online at www.faa.gov/air_traffic/publications/. You may also contact the Rules and
Regulations Group, Office of Policy, Federal Aviation Administration,
800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.
FOR FURTHER INFORMATION CONTACT: Brian Vidis, Rules and Regulations
Group, Office of Policy, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.
SUPPLEMENTARY INFORMATION:
Authority for This Rulemaking
The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the
[[Page 66195]]
agency's authority. This rulemaking is promulgated under the authority
described in Subtitle VII, Part A, Subpart I, Section 40103. Under that
section, the FAA is charged with prescribing regulations to assign the
use of the airspace necessary to ensure the safety of aircraft and the
efficient use of airspace. This regulation is within the scope of that
authority as it modifies the Air Traffic Service (ATS) route structure
as necessary to preserve the safe and efficient flow of air traffic
within the National Airspace System (NAS).
History
The FAA published a NPRM for Docket No. FAA 2023-2502 in the
Federal Register (89 FR 2525; January 16, 2024), proposing to establish
United States RNAV Route Q-108 and revoking RNAV Route Q-104 in the
eastern United States. Interested parties were invited to participate
in this rulemaking effort by submitting written comments on the
proposal to the FAA. No comments were received.
Incorporation by Reference
United States Area Navigation routes (Q-routes) are published in
paragraph 2006 of FAA Order JO 7400.11, Airspace Designations and
Reporting Points, which is incorporated by reference in 14 CFR 71.1 on
an annual basis. This document amends the current version of that
order, FAA Order JO 7400.11H, dated August 11, 2023, and effective
September 15, 2023. FAA Order JO 7400.11H is publicly available as
listed in the ADDRESSES section of this document. These amendments will
be published in the next update to FAA Order JO 7400.11.
FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas,
air traffic service routes, and reporting points.
The Rule
This action amends 14 CFR part 71 by establishing RNAV Route Q-108
and revoking Q-104 in the eastern United States. This action supports
the NEC ACR Optimization Project to improve the efficiency of the NAS.
The amendments are described below.
Q-104: Prior to this final rule, Q-104 extended between the ACORI,
AL, waypoint (WP), and the St Petersburg, FL (PIE), Very High Frequency
Omnidirectional Range/Tactical Air Navigation (VORTAC). Air Traffic
Control (ATC) no longer uses the route. The FAA removes the route in
its entirety.
Q-108: Q-108 is a new RNAV route that extends between the
Louisville, KY (IIU), VORTAC and the Sea Isle, NJ (SIE), VORTAC. The
route overlays Jet Route J-526 between the Louisville VORTAC and the
Beckley, WV (BKW), VOR/Distance Measuring Equipment (VOR/DME); RNAV
Route Q-34 between the SITTR, WV, WP and the MAULS, VA, WP; RNAV Route
Q-97 between the SAWED, VA, WP and the BYSEL, MD, Fix; and RNAV Route
Q-439 between the BYSEL Fix and the HOWYU, DE, WP. The new RNAV route
provides connectivity between the Louisville, KY area and the Atlantic
City, NJ area.
Regulatory Notices and Analyses
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore: (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
only affects air traffic procedures and air navigation, it is certified
that this rule, when promulgated, does not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
Environmental Review
The FAA has determined that this airspace action of establishing
RNAV Route Q-108 and revoking RNAV Route Q-104 qualifies for
categorical exclusion under the National Environmental Policy Act (42
U.S.C. 4321 et seq.) and its implementing regulations at 40 CFR part
1500, and in accordance with FAA Order 1050.1F, Environmental Impacts:
Policies and Procedures, paragraph 5-6.5a, which categorically excludes
from further environmental impact review rulemaking actions that
designate or modify classes of airspace areas, airways, routes, and
reporting points (see 14 CFR part 71, Designation of Class A, B, C, D,
and E Airspace Areas; Air Traffic Service Routes; and Reporting
Points); and paragraph 5-6.5b, which categorically excludes from
further environmental impact review ``Actions regarding establishment
of jet routes and Federal airways (see 14 CFR 71.15, Designation of jet
routes and VOR Federal airways) . . .''. As such, this action is not
expected to result in any potentially significant environmental
impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding
Extraordinary Circumstances, the FAA has reviewed this action for
factors and circumstances in which a normally categorically excluded
action may have a significant environmental impact requiring further
analysis. Accordingly, the FAA has determined that no extraordinary
circumstances exist that warrant preparation of an environmental
assessment or environmental impact study.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:
PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS
0
1. The authority citation for 14 CFR part 71 continues to read as
follows:
Authority: 49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Sec. 71.1 [Amended]
0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order JO
7400.11H, Airspace Designations and Reporting Points, dated August 11,
2023, and effective September 15, 2023, is amended as follows:
Paragraph 2006 United States Area Navigation Routes.
* * * * *
Q-104 [Removed]
* * * * *
Q-108 Louisville, KY (IIU) to Sea Isle, NJ (SIE) [New]
Louisville, KY (IIU) VORTAC (Lat. 38[deg]06'12.47'' N, long. 085[deg]34'38.77''
W)
ZIEBR, KY FIX (Lat. 37[deg]37'58.24'' N, long. 082[deg]45'10.76''
W)
SITTR, WV WP (Lat. 37[deg]46'49.13'' N, long. 081[deg]07'23.70''
W)
DENNY, VA FIX (Lat. 37[deg]52'00.15'' N, long. 079[deg]44'13.75''
W)
MAULS, VA WP (Lat. 37[deg]52'49.36'' N, long. 079[deg]19'49.19''
W)
QUART, VA WP (Lat. 37[deg]31'25.15'' N, long. 077[deg]42'53.29''
W)
HURTS, VA WP (Lat. 37[deg]27'41.87'' N, long. 076[deg]57'17.75''
W)
[[Page 66196]]
SAWED, VA WP (Lat. 37[deg]32'00.73'' N, long. 075[deg]51'29.10''
W)
KALDA, VA WP (Lat. 37[deg]50'31.06'' N, long. 075[deg]37'35.34''
W)
ZJAAY, MD WP (Lat. 38[deg]03'09.95'' N, long. 075[deg]26'34.27''
W)
BYSEL, MD FIX (Lat. 38[deg]15'02.70'' N, long. 075[deg]16'52.87''
W)
ACTUP, DE FIX (Lat. 38[deg]42'12.11'' N, long. 075[deg]11'10.30''
W)
Sea Isle, NJ (SIE) VORTAC (Lat. 39[deg]05'43.83'' N, long. 074[deg]48'01.24''
W)
* * * * *
Issued in Washington, DC, on August 5, 2024.
Frank Lias,
Manager, Rules and Regulations Group.
[FR Doc. 2024-17722 Filed 8-14-24; 8:45 am]
BILLING CODE 4910-13-P | usgpo | 2024-10-08T13:26:20.125316 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-17722.htm"
} |
FR | FR-2024-08-15/2024-17867 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66196-66199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17867]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. FAA-2024-0157; Airspace Docket No. 23-ASO-32]
RIN 2120-AA66
Establishment and Amendment of Multiple United States Area
Navigation (RNAV) Routes; and Revocation of RNAV Route T-204; Eastern
United States
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action establishes United States Area Navigation (RNAV)
Routes T-489, T-491, T-493, and T-495; amends RNAV Routes T-210, T-336,
T-341, and T-349; and revokes RNAV Route T-204 in the eastern United
States. This action supports FAA Next Generation Air Transportation
System (NextGen) efforts to provide a modern RNAV route structure to
improve the safety and efficiency of the National Airspace System
(NAS).
DATES: Effective date 0901 UTC, October 31, 2024. The Director of the
Federal Register approves this incorporation by reference action under
1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11
and publication of conforming amendments.
ADDRESSES: A copy of the Notice of Proposed Rulemaking (NPRM), all
comments received, this final rule, and all background material may be
viewed online at www.regulations.gov using the FAA Docket number.
Electronic retrieval help and guidelines are available on the website.
It is available 24 hours each day, 365 days each year.
FAA Order JO 7400.11H, Airspace Designations and Reporting Points,
and subsequent amendments can be viewed online at www.faa.gov/air_traffic/publications/. You may also contact the Rules and
Regulations Group, Office of Policy, Federal Aviation Administration,
800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.
FOR FURTHER INFORMATION CONTACT: Brian Vidis, Rules and Regulations
Group, Office of Policy, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.
SUPPLEMENTARY INFORMATION:
Authority for This Rulemaking
The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
the airspace necessary to ensure the safety of aircraft and the
efficient use of airspace. This regulation is within the scope of that
authority as it modifies the Air Traffic Service (ATS) route structure
as necessary to preserve the safe and efficient flow of air traffic
within the NAS.
History
The FAA published a NPRM for Docket No. FAA-2024-0157 in the
Federal Register (89 FR 14602; February 28, 2024), proposing to
establish United States RNAV Routes T-489, T-491, T-493, and T-495;
amending RNAV Routes T-210, T-336, T-341, and T-349; and revoking RNAV
Route T-204 in the eastern United States. Interested parties were
invited to participate in this rulemaking effort by submitting written
comments on the proposal to the FAA. No comments were received.
Differences From the NPRM
Subsequent to publication of the NPRM, the FAA identified that RNAV
Route Q-102 is a non-regulatory air traffic service route that transits
international airspace, and which are modified outside of the
regulatory process. The FAA removes the amendment of RNAV Route Q-102
from this action.
The FAA inadvertently omitted from the proposed changes that
numerous route points would be removed from the route descriptions of
RNAV Routes T-210 and T-336 due to those segments forming a turn of
less than one degree. The route points remain depicted on aeronautical
charts for reference but are removed from the description of each
route. The MRUTT, FL, waypoint (WP) and the GUANO, FL, Fix are removed
from the description of RNAV Route T-210. The FUTSY, FL, WP; OMMNI, FL,
WP; VIZTA, FL, WP; and YONMA, FL, Fix are removed from the description
of RNAV Route T-336. This final rule corrects these omissions.
Incorporation by Reference
United States Area Navigation routes are published in paragraph
6011 of FAA Order JO 7400.11, Airspace Designations and Reporting
Points, which is incorporated by reference in 14 CFR 71.1 on an annual
basis. This document amends the current version of that order, FAA
Order JO 7400.11H, dated August 11, 2023, and effective September 15,
2023. FAA Order JO 7400.11H is publicly available as listed in the
ADDRESSES section of this document. These amendments will be published
in the next update to FAA Order JO 7400.11.
FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas,
air traffic service routes, and reporting points.
The Rule
This action amends 14 CFR part 71 by establishing RNAV Routes T-
489, T-491, T-493, and T-495; amending RNAV Routes T-210, T-336, T-341,
and T-349; and revoking RNAV Route T-204 in the eastern United States.
This action supports the FAA's NextGen efforts to provide a modern RNAV
route structure to improve the safety and efficiency of the NAS. The
amendments are described below.
T-204: Prior to this final rule, T-204 extended between the Taylor,
FL (TAY), Very High Frequency Omnidirectional Range/Tactical Air
Navigation (VORTAC) and the Brunswick, GA (SSI), VORTAC. The FAA
removes the route in its entirety.
T-210: Prior to this final rule, T-210 extended between the HADDE,
FL, Fix, and the VARZE, FL, WP. The FAA extends T-210 to the west
between the HADDE Fix and the MILLP, FL, Fix and
[[Page 66197]]
to the south between the VARZE Fix and the WEZER, FL, WP. The route
extension to the west provides RNAV connectivity to the Marianna, FL,
area, and the route extension to the south provides more efficient air
traffic control clearances in the Lakeland, FL, area. Additionally, the
MRUTT, FL, WP and GUANO, FL, Fix are removed from the route description
as they form a turn of less than one degree. As amended, the route
extends between the MILLP Fix and the WEZER WP.
T-336: Prior to this final rule, T-336 extended between the TROYR,
FL, WP and the VALKA, FL, Fix. The FAA extends T-336 to the northwest
between the MILLP, FL, Fix and the TROYR WP. The route overlays VOR
Federal Airway V-521 between the Marianna, FL (MAI), VORTAC and the
Cross City, FL (CTY), VORTAC. The route extension provides RNAV
connectivity to the Marianna, FL, area. The FUTSY, FL, WP; OMMNI, FL,
WP; VIZTA, FL, WP; and YONMA, FL, Fix are removed from the route
description as they form a turn of less than one degree. Additionally,
the FAA changes the TROYR WP name to the CCITY, FL, WP. As amended, the
route extends between the MILLP Fix and the VALKA Fix.
T-341: Prior to this final rule, T-341 extended between the MEAGN,
FL, WP and the MARQO, FL, WP. The FAA extends T-341 to the northeast
between the MARQO WP and the FLRNS, SC, Fix. The route extension
provides RNAV connectivity to the Florence, SC, area. Additionally, the
FAA adds the FEBRO, FL, WP between the CUSEK, FL, WP and the YELLZ, FL,
WP to provide connectivity to RNAV Routes T-343 and T-353, and replaces
the WHOOU, FL, WP with the WALEE, FL, WP to provide connectivity to
RNAV Route T-207. Lastly, the FAA removes the DULFN, FL, WP from the
route description as it does not represent a turn point of one degree
or more. As amended, the route extends between the MEAGN WP and the
FLRNS Fix.
T-349: Prior to this final rule, T-349 extended between the VARZE,
FL, WP and the TROYR, FL, WP. The FAA extends T-349 to the southeast
between the VARZE WP and the NEWER, FL, Fix; and to the northwest
between the TROYR WP and the LYFEE, AL, WP. The route overlays VOR
Federal Airway V-7 between the Wiregrass, AL (RRS), VORTAC and the
Cross City, FL (CTY), VORTAC and provides RNAV connectivity between the
Fort Lauderdale, FL and the Dothan, AL, areas. Additionally, the FAA
removes the MILOW, FL, WP and the MURDE, FL, WP from the route
description as those route points do not represent a turn point of one
degree or more. Lastly, the FAA changes the TROYR WP name to the CCITY,
FL, WP. As amended, the route extends between the NEWER Fix and the
LYFEE WP.
T-489: T-489 is a new RNAV route that extends between the BOLTS,
FL, WP and the PCANN, GA, WP. The new route overlays a portion of VOR
Federal Airway V-35 between the ATTAK, FL, Fix and the PECAN, GA (PZD),
VOR/Distance Measuring Equipment (VOR/DME) and provides RNAV routing
between the Tampa, FL, area and the Albany, GA, area.
T-491: T-491 is a new RNAV route that extends between the BOLTS,
FL, WP and the SIROC, GA, WP. The new route provides RNAV connectivity
between the Tampa, FL, area and the Brunswick, GA, area.
T-493: T-493 is a new RNAV route that extends between the BOLTS,
FL, WP and the DOOLY, GA, WP. The new route provides RNAV connectivity
between the Tampa, FL, area and the Macon, GA, area.
T-495: T-495 is a new RNAV route that extends between the BOLTS,
FL, WP, and the BWDEN, FL, Fix. The new route provides RNAV
connectivity between the Tampa, FL, area and the Tallahassee, FL, area.
Regulatory Notices and Analyses
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore: (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
only affects air traffic procedures and air navigation, it is certified
that this rule, when promulgated, does not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
Environmental Review
The FAA has determined that this airspace action of establishing
United States RNAV Routes T-489, T-491, T-493, and T-495; amending RNAV
Routes T-210, T-336, T-341, and T-349; and revoking RNAV Route T-204
qualifies for categorical exclusion under the National Environmental
Policy Act (42 U.S.C. 4321 et seq.) and its implementing regulations at
40 CFR part 1500, and in accordance with FAA Order 1050.1F,
Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which
categorically excludes from further environmental impact review
rulemaking actions that designate or modify classes of airspace areas,
airways, routes, and reporting points (see 14 CFR part 71, Designation
of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes;
and Reporting Points); and paragraph 5-6.5b, which categorically
excludes from further environmental impact review ``Actions regarding
establishment of jet routes and Federal airways (see 14 CFR 71.15,
Designation of jet routes and VOR Federal airways) . . .''. As such,
this action is not expected to result in any potentially significant
environmental impacts. In accordance with FAA Order 1050.1F, paragraph
5-2 regarding Extraordinary Circumstances, the FAA has reviewed this
action for factors and circumstances in which a normally categorically
excluded action may have a significant environmental impact requiring
further analysis. Accordingly, the FAA has determined that no
extraordinary circumstances exist that warrant preparation of an
environmental assessment or environmental impact study.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:
PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS
0
1. The authority citation for 14 CFR part 71 continues to read as
follows:
Authority: 49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Sec. 71.1 [Amended]
0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order JO
7400.11H, Airspace Designations and Reporting Points, dated August 11,
2023, and effective September 15, 2023, is amended as follows:
Paragraph 6011 United States Area Navigation Routes.
* * * * *
T-204 [Removed]
* * * * *
[[Page 66198]]
T-210 MILLP, FL to WEZER, FL [Amended]
MILLP, FL FIX (Lat. 30[deg]47'10.19'' N, long. 085[deg]07'27.41'' W)
GRNVL, FL FIX (Lat. 30[deg]33'04.80'' N, long. 083[deg]46'58.59'' W)
HADDE, FL FIX (Lat. 30[deg]31'54.46'' N, long. 083[deg]13'50.21'' W)
MISSM, FL WP (Lat. 30[deg]27'28.15'' N, long. 082[deg]36'32.24'' W)
OHLEE, FL WP (Lat. 30[deg]16'06.04'' N, long. 082[deg]06'32.53'' W)
MMKAY, FL WP (Lat. 29[deg]41'55.42'' N, long. 081[deg]26'49.15'' W)
KIZER, FL FIX (Lat. 28[deg]55'26.00'' N, long. 081[deg]22'17.83'' W)
EMSEE, FL WP (Lat. 28[deg]50'43.72'' N, long. 081[deg]32'47.03'' W)
DAIYL, FL WP (Lat. 28[deg]49'10.74'' N, long. 081[deg]41'29.68'' W)
AKOJO, FL WP (Lat. 28[deg]45'44.01'' N, long. 081[deg]43'31.54'' W)
PUNQU, FL WP (Lat. 28[deg]34'33.65'' N, long. 081[deg]49'22.43'' W)
VARZE, FL WP (Lat. 28[deg]16'25.85'' N, long. 082[deg]01'44.51'' W)
WEZER, FL WP (Lat. 28[deg]02'26.59'' N, long. 082[deg]02'39.60'' W)
* * * * *
T-336 MILLP, FL to VALKA, FL [Amended]
MILLP, FL FIX (Lat. 30[deg]47'10.19'' N, long. 085[deg]07'27.41'' W)
TERES, FL FIX (Lat. 29[deg]56'07.76'' N, long. 084[deg]20'08.51'' W)
HEVVN, FL FIX (Lat. 29[deg]49'19.11'' N, long. 083[deg]53'42.89'' W)
CCITY, FL WP (Lat. 29[deg]34'20.92'' N, long. 083[deg]01'52.68'' W)
PUNQU, FL WP (Lat. 28[deg]34'33.65'' N, long. 081[deg]49'22.43'' W)
YOJIX, FL FIX (Lat. 28[deg]02'44.04'' N, long. 081[deg]33'45.34'' W)
ODDEL, FL FIX (Lat. 28[deg]05'45.51'' N, long. 081[deg]10'10.24'' W)
DEARY, FL FIX (Lat. 28[deg]06'02.53'' N, long. 080[deg]54'51.40'' W)
VALKA, FL FIX (Lat. 27[deg]55'06.06'' N, long. 080[deg]34'17.17'' W)
* * * * *
T-341 MEAGN, FL to FLRNS, SC [Amended]
MEAGN, FL WP (Lat. 26[deg]14'17.20'' N, long. 080[deg]47'23.64'' W)
ZAGPO, FL WP (Lat. 26[deg]23'47.41'' N, long. 080[deg]57'25.83'' W)
CUSEK, FL WP (Lat. 26[deg]51'38.79'' N, long. 081[deg]23'17.37'' W)
FEBRO, FL WP (Lat. 27[deg]37'02.08'' N, long. 081[deg]47'07.68'' W)
YELLZ, FL WP (Lat. 27[deg]51'36.18'' N, long. 081[deg]56'34.16'' W)
WEZER, FL WP (Lat. 28[deg]02'26.59'' N, long. 082[deg]02'39.60'' W)
VARZE, FL WP (Lat. 28[deg]16'25.85'' N, long. 082[deg]01'44.51'' W)
OMMNI, FL WP (Lat. 28[deg]51'29.29'' N, long. 082[deg]09'41.75'' W)
WALEE, FL WP (Lat. 29[deg]41'36.05'' N, long. 082[deg]14'07.07'' W)
MARQO, FL WP (Lat. 30[deg]30'53.57'' N, long. 082[deg]32'45.62'' W)
TWEST, GA FIX (Lat. 32[deg]05'45.00'' N, long. 082[deg]03'11.00'' W)
DURBE, SC WP (Lat. 33[deg]00'44.75'' N, long. 081[deg]17'32.69'' W)
VANNC, SC WP (Lat. 33[deg]28'29.84'' N, long. 080[deg]26'54.65'' W)
FLRNS, SC FIX (Lat. 34[deg]13'58.11'' N, long. 079[deg]39'25.95'' W)
* * * * *
T-349 NEWER, FL to LYFEE, AL [Amended]
NEWER, FL FIX (Lat. 26[deg]13'54.98'' N, long. 080[deg]37'05.49'' W)
GILBI, FL FIX (Lat. 26[deg]24'31.77'' N, long. 080[deg]43'44.46'' W)
KNRAD, FL FIX (Lat. 26[deg]37'16.45'' N, long. 081[deg]09'54.74'' W)
CUSEK, FL WP (Lat. 26[deg]51'38.79'' N, long. 081[deg]23'17.37'' W)
QUNCY, FL FIX (Lat. 27[deg]02'13.01'' N, long. 081[deg]38'18.21'' W)
FEBRO, FL WP (Lat. 27[deg]37'02.08'' N, long. 081[deg]47'07.68'' W)
YELLZ, FL WP (Lat. 27[deg]51'36.18'' N, long. 081[deg]56'34.16'' W)
WEZER, FL WP (Lat. 28[deg]02'26.59'' N, long. 082[deg]02'39.60'' W)
VARZE, FL WP (Lat. 28[deg]16'25.85'' N, long. 082[deg]01'44.51'' W)
CCITY, FL WP (Lat. 29[deg]34'20.92'' N, long. 083[deg]01'52.68'' W)
LYFEE, AL WP (Lat. 31[deg]17'05.04'' N, long. 085[deg]25'52.67'' W)
* * * * *
T-489 BOLTS, FL to PCANN, GA [New]
BOLTS, FL WP (Lat. 28[deg]11'15.93'' N, long. 082[deg]52'21.14'' W)
ATTAK, FL FIX (Lat. 28[deg]36'46.38'' N, long. 082[deg]49'30.78'' W)
NESST, FL FIX (Lat. 28[deg]59'10.29'' N, long. 082[deg]54'02.10'' W)
CEDDI, FL FIX (Lat. 29[deg]17'10.66'' N, long. 082[deg]58'22.44'' W)
CCITY, FL WP (Lat. 29[deg]34'20.92'' N, long. 083[deg]01'52.68'' W)
GRNVL, FL FIX (Lat. 30[deg]33'04.80'' N, long. 083[deg]46'58.59'' W)
PCANN, GA WP (Lat. 31[deg]39'18.97'' N, long. 084[deg]17'35.80'' W)
[[Page 66199]]
T-491 BOLTS, FL to SIROC, GA [New]
BOLTS, FL WP (Lat. 28[deg]11'15.93'' N, long. 082[deg]52'21.14'' W)
EXWAY, FL FIX (Lat. 28[deg]54'18.24'' N, long. 082[deg]30'44.53'' W)
WALEE, FL WP (Lat. 29[deg]41'36.05'' N, long. 082[deg]14'07.07'' W)
OHLEE, FL WP (Lat. 30[deg]16'06.04'' N, long. 082[deg]06'32.53'' W)
SIROC, GA WP (Lat. 31[deg]03'02.32'' N, long. 081[deg]26'45.89'' W)
T-493 BOLTS, FL to DOOLY, GA [New]
BOLTS, FL WP (Lat. 28[deg]11'15.93'' N, long. 082[deg]52'21.14'' W)
CHAAZ, FL FIX (Lat. 28[deg]43'28.00'' N, long. 082[deg]36'13.00'' W)
ORATE, FL FIX (Lat. 29[deg]20'25.53'' N, long. 082[deg]52'48.84'' W)
CCITY, FL WP (Lat. 29[deg]34'20.92'' N, long. 083[deg]01'52.68'' W)
VLDST, GA FIX (Lat. 30[deg]46'50.17'' N, long. 083[deg]16'47.21'' W)
TIFFT, GA FIX (Lat. 31[deg]25'42.59'' N, long. 083[deg]29'19.75'' W)
DOOLY, GA WP (Lat. 32[deg]12'48.02'' N, long. 083[deg]29'50.66'' W)
T-495 BOLTS, FL to BWDEN, FL [New]
BOLTS, FL WP (Lat. 28[deg]11'15.93'' N, long. 082[deg]52'21.14'' W)
ATTAK, FL FIX (Lat. 28[deg]36'46.38'' N, long. 082[deg]49'30.78'' W)
NESST, FL FIX (Lat. 28[deg]59'10.29'' N, long. 082[deg]54'02.10'' W)
DEANR, FL WP (Lat. 29[deg]15'30.40'' N, long. 083[deg]03'30.24'' W)
BWDEN, FL FIX (Lat. 30[deg]33'21.90'' N, long. 084[deg]22'25.85'' W)
* * * * *
Issued in Washington, DC, on August 7, 2024.
Frank Lias,
Manager, Rules and Regulations Group.
[FR Doc. 2024-17867 Filed 8-14-24; 8:45 am]
BILLING CODE 4910-13-P | usgpo | 2024-10-08T13:26:20.167150 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-17867.htm"
} |
FR | FR-2024-08-15/2024-17908 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66199-66200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17908]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. FAA-2024-0319; Airspace Docket No. 24-ASO-6]
RIN 2120-AA66
Amendment of Class E Airspace; Reidsville, NC
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action amends Class E airspace extending upward from 700
feet above the surface for Rockingham County NC Shiloh Airport,
Reidsville, NC, to accommodate new area navigation (RNAV) global
positioning system (GPS) standard instrument approach procedures
serving the airport.
DATES: Effective 0901 UTC, October 31, 2024. The Director of the
Federal Register approves this incorporation by reference action under
1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11
and publication of conforming amendments.
ADDRESSES: A copy of the Notice of Proposed Rulemaking (NPRM), all
comments received, this final rule, and all background material may be
viewed online at www.regulations.gov using the FAA Docket number.
Electronic retrieval help and guidelines are available on the website.
It is available 24 hours a day, 365 days a year.
FAA Order JO 7400.11H, Airspace Designations, and Reporting Points,
and subsequent amendments can be viewed online at www.faa.gov/air_traffic/publications/. For further information, you can contact the
Airspace Policy Group, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.
FOR FURTHER INFORMATION CONTACT: John Fornito, Operations Support
Group, Eastern Service Center, Federal Aviation Administration, 1701
Columbia Avenue, College Park, GA 30337; telephone: (404) 305-6364.
SUPPLEMENTARY INFORMATION:
Authority for This Rulemaking
The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority,
as it amends Class E airspace extending upward from 700 feet above the
surface for Rockingham County, NC, Shiloh Airport, Reidsville, NC.
History
The FAA published a notice of proposed rulemaking for Docket No.
FAA 2024-0319 in the Federal Register (89 FR 19517; March 19, 2024),
proposing to establish Class E airspace extending upward from 700 feet
above the surface for Rockingham County NC Shiloh Airport, Reidsville,
NC. Interested parties were invited to participate in this rulemaking
effort by submitting written comments on the proposal to the FAA. No
comments were received.
Differences From the NPRM
Subsequent to the publication of the NPRM, the FAA found that even
though the airspace was not published in Order 7400.11, the airspace
was charted, making this action an amendment. This action corrects this
error.
Incorporation by Reference
Class E airspace is published in paragraph 6005 of FAA Order JO
7400.11, Airspace Designations and Reporting Points, which is
incorporated by reference in 14 CFR 71.1 on an annual basis. This
document amends the current version of that order, FAA Order JO
7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA
Order JO 7400.11H is publicly available as listed in the ADDRESSES
section of this document. These amendments will be published in the
next update to FAA Order JO 7400.11. FAA Order JO 7400.11H lists Class
A, B, C, D, and E airspace areas, air traffic service routes, and
reporting points.
The Rule
This amendment to 14 CFR part 71 amends Class E airspace extending
upward from 700 feet above the surface within a 9.1-mile radius of
Rockingham County, NC Shiloh Airport, Reidsville, NC, providing the
controlled airspace required to support the new RNAV (GPS) standard
instrument approach procedures for IFR operations at the airport.
Controlled airspace is necessary for the safety and management of
instrument flight rules (IFR) operations in the area.
[[Page 66200]]
Regulatory Notices and Analyses
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore: (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a Regulatory Evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this proposed rule, when promulgated, will not have a
significant economic impact on a substantial number of small entities
under the criteria of the Regulatory Flexibility Act.
Environmental Review
The FAA has determined that this action qualifies for categorical
exclusion under the National Environmental Policy Act in accordance
with FAA Order 1050.1F, ``Environmental Impacts: Policies and
Procedures,'' paragraph 5-6.5a. This airspace action is not expected to
cause any potentially significant environmental impacts, and no
extraordinary circumstances exist that warrant the preparation of an
environmental assessment.
Lists of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:
PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS
0
1. The authority citation for 14 CFR part 71 continues to read as
follows:
Authority: 49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Sec. 71.1 [Amended]
0
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation
Administration Order JO 7400.11H, Airspace Designations and Reporting
Points, dated August 11, 2023, and effective September 15, 2023, is
amended as follows:
Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth.
* * * * *
ASO NC E5 Reidsville, NC [Amended]
Rockingham County, NC Shiloh Airport, NC
(Lat. 36[deg]26'14'' N, long 79[deg]51'04'' W)
That airspace extending upward from 700 feet above the surface
within a 9.1-mile radius of Rockingham County, NC, Shiloh Airport.
* * * * *
Issued in College Park, Georgia, on July 29, 2024.
Andreese C. Davis,
Manager, Airspace & Procedures Team South, Eastern Service Center, Air
Traffic Organization.
[FR Doc. 2024-17908 Filed 8-14-24; 8:45 am]
BILLING CODE 4910-13-P | usgpo | 2024-10-08T13:26:20.196605 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-17908.htm"
} |
FR | FR-2024-08-15/2024-17721 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66200-66201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17721]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. FAA-2024-1850; Airspace Docket No. 24-ASO-12]
RIN 2120-AA66
Amendment of United States Area Navigation (RNAV) Route Q-109;
Eastern United States
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action amends United States Area Navigation (RNAV) Route
Q-109 by changing the name of the ``LAANA'', NC, waypoint (WP) to
``JOHAR''. The FAA is taking this action due to a similarly pronounced
and sounding route point (LANNA, NJ) located 410 nautical miles (NM)
northeast of the LAANA WP. This action is an administrative change and
does not affect the airspace boundaries or operating requirements.
DATES: Effective date 0901 UTC, October 31, 2024. The Director of the
Federal Register approves this incorporation by reference action under
1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11
and publication of conforming amendments.
ADDRESSES: A copy of this final rule and all background material may be
viewed online at www.regulations.gov using the FAA Docket number.
Electronic retrieval help and guidelines are available on the website.
It is available 24 hours each day, 365 days each year.
FAA Order JO 7400.11H, Airspace Designations and Reporting Points,
and subsequent amendments can be viewed online at www.faa.gov/air_traffic/publications/. You may also contact the Rules and
Regulations Group, Office of Policy, Federal Aviation Administration,
800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.
FOR FURTHER INFORMATION CONTACT: Brian Vidis, Rules and Regulations
Group, Office of Policy, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.
SUPPLEMENTARY INFORMATION:
Authority for This Rulemaking
The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
the airspace necessary to ensure the safety of aircraft and the
efficient use of airspace. This regulation is within the scope of that
authority as it modifies the Air Traffic Service (ATS) route structure
as necessary to preserve the safe and efficient flow of air traffic
within the National Airspace System (NAS).
Background
The FAA identified a safety issue with similar sounding route point
names, the LAANA, NC, WP and the LANNA, NJ, Fix located 410 NM to the
northeast of the LAANA WP which contributes to communications errors
resulting from the similar-sounding route point names in radio
communications. To remedy this, the FAA is changing the name of the
LAANA, NC, WP to the JOHAR, NC, WP in RNAV Route Q-109.
Incorporation by Reference
United States Area Navigation routes (Q-routes) are published in
paragraph 2006 of FAA Order JO 7400.11, Airspace Designations and
Reporting Points, which is incorporated by reference in 14 CFR 71.1 on
an annual basis. This document amends the current version of that
order, FAA Order JO 7400.11H, dated August 11, 2023, and effective
September 15, 2023. FAA Order JO 7400.11H is publicly available as
listed in the ADDRESSES section of this document. These amendments will
be published in the next update to FAA Order JO 7400.11.
[[Page 66201]]
FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas,
air traffic service routes, and reporting points.
The Rule
This action amends 14 CFR part 71 by changing the name of the
``LAANA'', NC, WP to ``JOHAR'' in RNAV Route Q-109 to overcome the
similar-sounding pronunciation of the LAANA, NC, WP and the LANNA, NJ,
Fix which contributes to communications errors resulting from the
similar-sounding route point names in radio communications. The
amendment is described below.
Q-109: Prior to this final rule, Q-109 extended between the KNOST,
OG, WP and the DFENC, NC, WP. The FAA replaces the LAANA, NC, WP with
the JOHAR, NC, WP at the same location. As amended, the route continues
to extend between the KNOST WP and the DFENC WP.
This action is an administrative change and does not affect the
airspace boundaries or operating requirements; therefore, notice and
public procedure under 5 U.S.C. 553(b) is unnecessary.
Regulatory Notices and Analyses
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore: (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
only affects air traffic procedures and air navigation, it is certified
that this rule, when promulgated, does not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
Environmental Review
The FAA has determined that this airspace action of amending RNAV
Route Q-109 by changing the name of the ``LAANA'', NC, WP to ``JOHAR''
qualifies for categorical exclusion under the National Environmental
Policy Act (42 U.S.C. 4321 et seq.) and its implementing regulations at
40 CFR part 1500, and in accordance with FAA Order 1050.1F,
Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which
categorically excludes from further environmental impact review
rulemaking actions that designate or modify classes of airspace areas,
airways, routes, and reporting points (see 14 CFR part 71, Designation
of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes;
and Reporting Points). As such, this action is not expected to result
in any potentially significant environmental impacts. In accordance
with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary
Circumstances, the FAA has reviewed this action for factors and
circumstances in which a normally categorically excluded action may
have a significant environmental impact requiring further analysis.
Accordingly, the FAA has determined that no extraordinary circumstances
exist that warrant preparation of an environmental assessment or
environmental impact statement.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:
PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS
0
1. The authority citation for 14 CFR part 71 continues to read as
follows:
Authority: 49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Sec. 71.1 [Amended]
0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order JO
7400.11H, Airspace Designations and Reporting Points, dated August 11,
2023, and effective September 15, 2023, is amended as follows:
Paragraph 2006 United States Area Navigation Routes.
* * * * *
Q-109 KNOST, OG to DFENC, NC [Amended]
KNOST, OG WP (Lat. 28[deg]00'02.55'' N, long. 083[deg]25'23.99'' W)
DEANR, FL WP (Lat. 29[deg]15'30.40'' N, long. 083[deg]03'30.24'' W)
BRUTS, FL WP (Lat. 29[deg]30'58.00'' N, long. 082[deg]58'57.00'' W)
EVANZ, FL WP (Lat. 29[deg]54'12.11'' N, long. 082[deg]52'03.81'' W)
CAMJO, FL WP (Lat. 30[deg]30'32.00'' N, long. 082[deg]41'11.00'' W)
HEPAR, GA WP (Lat. 31[deg]05'13.00'' N, long. 082[deg]33'46.00'' W)
TEEEM, GA WP (Lat. 32[deg]08'41.20'' N, long. 081[deg]54'50.57'' W)
RIELE, SC WP (Lat. 32[deg]37'27.14'' N, long. 081[deg]23'34.97'' W)
PANDY, SC WP (Lat. 33[deg]28'29.39'' N, long. 080[deg]26'55.21'' W)
RAYVO, SC WP (Lat. 33[deg]38'44.12'' N, long. 080[deg]04'00.84'' W)
SESUE, SC WP (Lat. 33[deg]52'02.58'' N, long. 079[deg]33'51.88'' W)
BUMMA, SC WP (Lat. 34[deg]01'58.09'' N, long. 079[deg]11'07.50'' W)
YURCK, NC WP (Lat. 34[deg]11'14.80'' N, long. 078[deg]52'40.62'' W)
JOHAR, NC WP (Lat. 34[deg]19'41.35'' N, long. 078[deg]35'37.16'' W)
TINKK, NC WP (Lat. 34[deg]51'03.78'' N, long. 078[deg]05'48.08'' W)
DFENC, NC WP (Lat. 35[deg]55'11.09'' N, long. 077[deg]03'37.54'' W)
* * * * *
Issued in Washington, DC, on August 5, 2024.
Frank Lias,
Manager, Rules and Regulations Group.
[FR Doc. 2024-17721 Filed 8-14-24; 8:45 am]
BILLING CODE 4910-13-P | usgpo | 2024-10-08T13:26:20.240851 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-17721.htm"
} |
FR | FR-2024-08-15/2024-17828 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66201-66210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17828]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 48
RIN 3038-AF37
Foreign Boards of Trade
AGENCY: Commodity Futures Trading Commission.
ACTION: Final rule.
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SUMMARY: The Commodity Futures Trading Commission (CFTC or Commission)
is amending its regulations to permit a foreign board of trade (FBOT)
registered with the Commission to provide direct access to its
electronic trading and order matching system to an identified member or
other participant located in the United States and registered with the
Commission as an introducing
[[Page 66202]]
broker (IB) for submission of customer orders to the FBOT's trading
system for execution. The Commission is also establishing a procedure
for an FBOT to request revocation of its registration, and removing
certain outdated references to ``existing no-action relief.''
DATES: The rules will become effective September 16, 2024.
FOR FURTHER INFORMATION CONTACT: Alexandros Stamoulis, Associate
Director, Division of Market Oversight, Commodity Futures Trading
Commission, (646) 746-9792, [email protected], 290 Broadway, 6th
Floor, New York, NY 10007; Roger Smith, Associate Chief Counsel,
Division of Market Oversight, Commodity Futures Trading Commission,
(202) 418-5344, [email protected], 77 West Jackson Blvd., Suite 800,
Chicago, IL 60604; Jennifer Diamantis, Special Counsel, (202) 418-5762,
[email protected], Commodity Futures Trading Commission, Division of
Market Oversight, Three Lafayette Centre, 1151 21st Street NW,
Washington, DC 20581.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Final Regulations
A. Section 48.4--Registration Eligibility and Scope
B. Section 48.8--Conditions of Registration
C. Section 48.9--Revocation of Registration
D. Section 48.6--Foreign Boards of Trade Providing Direct Access
Pursuant to Existing No-Action Relief
III. Related Matters
A. Regulatory Flexibility Act
B. Paperwork Reduction Act
C. Cost Benefit Considerations
D. Antitrust Considerations
I. Background
Under part 48 of the Commission's regulations, an FBOT must be
registered with the Commission in order to provide its members or other
participants located in the United States with direct access to its
electronic trading and order matching system.\1\ Part 48 is authorized
by section 738 of the Dodd-Frank Act, which amended section 4(b) of the
Commodity Exchange Act (CEA), to provide that the Commission may adopt
rules and regulations requiring FBOTs that wish to provide U.S. persons
with direct access to register with the Commission.\2\ Prior to
enactment of the part 48 FBOT registration procedures in 2011, FBOTs
relied on no-action letters that were requested by the FBOT and issued
by Commission staff in order to provide direct access to U.S.
persons.\3\
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\1\ See Registration of Foreign Boards of Trade, Final Rule, 76
FR 80674 (Dec. 23, 2011); 17 CFR part 48. ``Direct access'' is
defined as an explicit grant of authority by a foreign board of
trade to an identified member or other participant located in the
United States to enter trades directly into the trade matching
system of the foreign board of trade. CEA section 4(b)(1)(A), 7
U.S.C. 6(b)(1)(A); 17 CFR 48.2(c).
\2\ See Sec. 738, Dodd-Frank Wall Street Reform and Consumer
Protection Act, Public Law 111-203, 124 Stat. 1376, 1726-1728 (2010)
(codified at 7 U.S.C. 6(b)).
\3\ See 76 FR 80674 at 80674-80675.
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Part 48 provides the procedures, requirements, and conditions to be
met by FBOTs that seek to provide their members and other participants
in the U.S. with direct access to the FBOT's trade matching system. The
regulations set forth, among other things, procedures an FBOT must
follow in applying for registration, requirements that an FBOT must
meet in order to obtain registration, conditions that an FBOT must
satisfy on a continuing basis upon obtaining registration, and
provisions for the termination of registration.
On March 1, 2024, the Commission released a proposal \4\ to amend
Sec. 48.4 to broaden the types of intermediaries eligible for direct
access for submission of customer orders to the FBOT to include IBs
registered with the Commission as such and located in the United
States.\5\ An IB is generally defined as an individual or organization
that solicits or accepts orders to buy or sell futures contracts,
commodity options, retail off-exchange forex or commodity contracts, or
swaps, but does not accept money or other assets from customers to
support these orders.\6\ Currently, Sec. 48.4 only includes certain
futures commission merchants (FCMs), commodity pool operators (CPOs),
and commodity trading advisors (CTAs) as intermediaries that are
eligible for entering orders on behalf of customers or commodity pools
(in the case of CPOs) via direct access on a registered FBOT.
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\4\ Foreign Boards of Trade, 89 FR 15083 (Mar. 1, 2024) (the
Proposal).
\5\ Intermediaries are entities that act on behalf of another
person with respect to trading derivatives. They are generally
required to register with the Commission and, depending on the
nature of their activities, may be subject to various financial,
disclosure, reporting, and recordkeeping requirements.
\6\ IB is defined, subject to certain exclusions and additions,
in CEA section 1a(31) as any person (except an individual who elects
to be and is registered as an associated person of a futures
commission merchant) (i) who (I) is engaged in soliciting or in
accepting orders for (aa) the purchase or sale of any commodity for
future delivery, security futures product, or swap; (bb) any
agreement, contract, or transaction described in section
2(c)(2)(C)(i) or section 2(c)(2)(D)(i); (cc) any commodity option
authorized under section 4c; or (dd) any leverage transaction
authorized under section 19; and (II) does not accept any money,
securities, or property (or extend credit in lieu thereof) to
margin, guarantee, or secure any trades or contracts that result or
may result therefrom; or (ii) who is registered with the Commission
as an IB. 7 U.S.C. 1a(31). IB is further defined, subject to certain
exclusions and additions, in Commission regulation 1.3(mm) as (1)
Any person who, for compensation or profit, whether direct or
indirect: (i) Is engaged in soliciting or in accepting orders (other
than in a clerical capacity) for the purchase or sale of any
commodity for future delivery, security futures product, or swap;
any agreement, contract or transaction described in section
2(c)(2)(C)(i) or section 2(c)(2)(D)(i) of the CEA; any commodity
option transaction authorized under section 4c; or any leverage
transaction authorized under section 19; or who is registered with
the Commission as an IB; and (ii) Does not accept any money,
securities, or property (or extend credit in lieu thereof) to
margin, guarantee, or secure any trades or contracts that result or
may result therefrom. 17 CFR 1.3(mm). IBs are subject to
registration with the Commission under CEA section 4d(g) and
Commission regulation 3.4(a). 7 U.S.C. 6d(g) and 17 CFR 3.4(a).
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In addition, the Proposal proposed to amend Sec. 48.9 to provide
registered FBOTs with a procedure to request revocation of their FBOT
registration. Further, the Commission proposed to delete Sec. 48.6,
which provides for an alternate registration procedure for FBOT's
operating under the preexisting staff no-action letter process, because
such no-action letter process and no-action letters are no longer in
effect.
The Commission received seven comment letters regarding the
Proposal.\7\ After considering the comments, the Commission is adopting
the rule amendments described herein as proposed. The Commission
believes the amendments are an appropriate response to market
developments that have occurred since part 48 was promulgated in 2011,
and will benefit affected markets and their participants by improving
competition, risk management and liquidity--while also maintaining the
Commission's longstanding protections available to U.S. customers that
trade foreign futures and options.
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\7\ The following persons and entities submitted relevant
comment letters: Everett Mein, Eurex Deutschland (Eurex), Futures
Industry Association (FIA), Intercontinental Exchange Inc. (ICE),
New Zealand Exchange Limited (NZX), NIBA, and the Wholesale Markets
Brokers' Association, Americas (WMBAA).
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II. Final Regulations
A. Section 48.4--Registration Eligibility and Scope
1. Proposed Regulations
The Commission proposed to amend Sec. 48.4(b) to permit FBOTs to
provide direct access to eligible IBs to enter orders directly into an
FBOT's trading and order matching system on behalf of U.S.
customers.\8\ Section 48.4(b)
[[Page 66203]]
identifies the types of members or other participants located in the
U.S. that may enter orders directly into the trading and order matching
system of a registered FBOT, and the types of accounts for which orders
may be submitted by such members or other participants. In this regard,
the types of members or other participants identified in existing Sec.
48.4(b) represent the types of members or other participants that were
trading via direct access on FBOTs that operated in reliance on CFTC
staff no-action letters at the time part 48 was promulgated.\9\
Specifically, Sec. 48.4(b)(1) provides that any member or other
participant located in the U.S. may enter orders for their proprietary
accounts.\10\ Further, Sec. 48.4(b)(2) provides that registered FCMs
may submit orders on behalf of their customers. Section 48.4(b)(3)
permits certain CPOs to submit orders on behalf of U.S. commodity pools
and certain CTAs to submit orders on behalf of U.S. customers provided,
however, all trades by the CPO or CTA effected through submission of
such orders are guaranteed by a clearing firm registered as an FCM or
exempt from FCM registration pursuant to Sec. 30.10.\11\ The
Commission proposed to amend Sec. 48.4(b) by inserting a new paragraph
(b)(4) to provide that eligible IBs may submit orders on behalf of
their customers, provided that a registered FCM or firm exempt from FCM
registration pursuant to Sec. 30.10 acts as a clearing firm and
guarantees all trades of the IB effected through submission of U.S.
customer orders to the trading system. The Commission also proposed to
amend paragraph (b)(3) to insert the words ``registered as such''
following ``futures commission merchant'' to clarify that the reference
is limited to FCMs registered with the Commission as such.\12\
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\8\ The term ``eligible IB'' is used in this release to mean an
IB that is located in the United States and registered with the
Commission as an IB. Direct access, as defined in the CEA and part
48, refers explicitly to members or other participants of an FBOT
that are located in the United States. See footnote 1, supra. For
purposes of this rulemaking and as used herein, the terms ``U.S.
customer'' and ``United States customer'' refer to customers located
in the United States, its territories or its possessions.
\9\ See Registration of Foreign Boards of Trade, Notice of
Proposed Rulemaking, 88 FR 61432, 70977 (Nov. 19, 2010).
\10\ Under Sec. 48.2(l), member or other participant is defined
as a member or other participant of an FBOT and any affiliate
thereof that has been granted direct access by the FBOT. 17 CFR
48.2(l). Proprietary account is defined in Sec. 1.3, 17 CFR 1.3.
\11\ A Sec. 30.10 exemptive order permits firms subject to
regulation by a foreign regulator to conduct business from locations
outside of the U.S. for U.S. persons on FBOTs without registering as
FCMs, based upon the firm's substituted compliance with a foreign
regulatory structure found comparable to that administered by the
Commission under the CEA. Used herein, U.S. commodity pool refers to
a commodity pool that does not meet the criteria set forth in Sec.
3.10(c)(5)(iii)(A) through (F), 17 CFR 3.10(c)(5)(iii)(A) through
(F).
\12\ The addition of the words ``registered as such'' here is
intended as a technical change rather than a substantive change;
i.e., that the reference is intended to refer to registered FCMs is
already implied by the subsequent clause ``or a firm exempt from
such registration . . .''
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Direct access is defined in the CEA and part 48 of the Commission's
regulations to mean an explicit grant of authority by an FBOT to an
identified member or other participant located in the U.S. to enter
trades directly into the trade matching engine of the FBOT.\13\ This
means that the FBOT, as opposed to its members or participants, has
identified and permitted a member or participant to enter trades
directly into the FBOT's order matching and trade entry system from the
United States.\14\ For example, a registered FBOT may authorize its
members or other participants eligible to handle U.S. customer orders
to enter orders on behalf of their U.S. customers or to otherwise
permit their U.S. customers to access the trading system using the
member's or participant's identifier and grant of authority. In such
cases the FBOT permits an identified exchange member or other
participant to allow their U.S. customers, who have not been granted
direct access by the FBOT, to have access to the exchange's trading
systems, subject to a guarantee from an exchange member or other
participant. The proposed amendment to Sec. 48.4(b) would permit
registered FBOTs to grant explicit authority to eligible IBs to act in
such capacity, provided that all trades effected by the IB through
submission of U.S. customer orders are guaranteed by a registered FCM
or a firm exempt from FCM registration pursuant to Sec. 30.10.
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\13\ CEA section 4(b)(1)(A), 7 U.S.C. 6(b)(1)(A); 17 CFR
48.2(c).
\14\ Conversely, a person located in the U.S. who accesses an
FBOT through an intermediary (whether such intermediary is located
in the United States or not) and without an explicit grant of
authority by the FBOT (i.e., such person is not an identified member
or other participant of the FBOT) would not meet the definition of
``direct access'' for purposes of part 48. See, e.g., 76 FR 80674 at
80688.
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2. Public Comments
All comment letters received generally support the proposed
amendment to Sec. 48.4(b) to permit registered FBOTs to provide direct
access to eligible IBs to enter orders on behalf of U.S. customers.\15\
Commenters agree that permitting eligible IBs to submit customer orders
via direct access to FBOTs would benefit affected markets and market
participants.\16\ Several commenters observe that markets have evolved
and the role of IBs serving as executing brokers has grown since the
Commission's adoption of part 48 in 2011.\17\ In light of these
changes, commenters support the Commission's efforts to update part 48
to ensure that its regulations remain current and reflect changes in
the market.\18\ Commenters further opine that the Proposal, if adopted,
is likely to: provide greater customer choice in, and promote fair
competition among, brokers; \19\ improve the ability for U.S.
participants to manage risk; \20\ and increase liquidity in affected
markets.\21\
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\15\ See Eurex Letter; FIA Letter; ICE Letter; Mein Letter; NZX
Letter; NIBA Letter; and WMBAA Letter.
\16\ See Eurex at 1-4; FIA at 2; ICE at 2; Mein at 5-6, 8 NIBA
at 2; WMBAA at 2.
\17\ See Eurex at 3-4; FIA at 2; WMBAA at 2.
\18\ See Eurex at 2-4; WMBAA at 2.
\19\ See FIA at 2; NZX at 1; NIBA at 2; WMBAA at 2-3.
\20\ See Eurex at 3-4; FIA at 2; WMBAA at 2; NIBA at 1.
Commenters specifically note that the Proposal would allow U.S.
participants to better conduct risk management by enabling on-
exchange trades in foreign markets through IBs during the U.S.
business day following the close of European markets. Id.
\21\ ICE posits that the proposed changes to Sec. 48.4 would
enable additional types of market participants to access FBOTs,
which would improve liquidity and reduce fragmentation while
promoting competitiveness in derivatives markets. ICE at 2. NIBA and
WMBAA generally state that they believe the Proposal would improve
liquidity. NIBA at 2; WMBAA at 2.
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The Commission received several comments specifically in support of
the proposed condition in Sec. 48.4(b)(4) requiring U.S. customer
orders submitted by IBs to be guaranteed by a registered FCM or a firm
exempt from FCM registration pursuant to Sec. 30.10.\22\ Commenters
note that they support the proposed condition because it would extend
access to IBs located in the U.S. on the same terms that U.S. CPOs and
CTAs currently access FBOTs.\23\
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\22\ See FIA at 2; Eurex at 3-4, 6, 8; ICE at 2; NIBA at 2; NZX
at 1.
\23\ Id. Eurex further states that it does not believe there is
any reason to require a different standard for IBs than what is
presently required for CPOs or CTAs, and asserts that the
Commission's framework for assessing applications for exemptions
under Sec. 30.10 provides a comprehensive and robust process to
assess whether the foreign jurisdiction offers a comparable
regulatory scheme (including with respect to the protection of
customer funds, and anti-money laundering (AML)). Eurex at 6-7. ICE
states that the condition reflects the different ways U.S. customers
access clearing and avoids unnecessary limitations on customers
trading through FBOTs. ICE at 2. Further, Eurex states that it does
not believe there is any additional information the Commission
should receive from FBOTs that provide direct access to IBs under
the proposed amendment to Sec. 48.4(b)(4). Eurex at 8. Eurex notes
that all quarterly, annual, and prompt-notice reporting requirements
that pertain to an FBOT's members under Sec. 48.8(b)(1) would apply
to IBs as well as existing categories of participants. Eurex at 8.
In addition, Eurex asserts that IBs are already subject to a wide
range of CFTC and NFA regulatory record keeping and reporting
requirements, which provides the Commission with the necessary
reporting for oversight. Eurex at 8. Eurex further opines that it
does not believe there are any additional registration requirements
under Sec. 48.7 that the Commission should consider for FBOTs that
provide direct access to IBs under proposed Sec. 48.4(b)(4). Eurex
at 7.
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[[Page 66204]]
Two commenters requested clarification that proposed Sec.
48.4(b)(4) would permit IBs to submit block trades to an FBOT (or
otherwise not prohibit them from doing so).\24\
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\24\ See Eurex at 4; WMBAA at 3. In addition, WMBAA requests
clarification as to whether permitting IBs located in the U.S. to
engage in block trades would require an unregistered foreign board
of trade to be registered as an FBOT under part 48. WMBAA at 3.
Generally speaking, a board of trade that is not a designated
contract market (DCM) or registered FBOT may, depending on the
nature of its activities within the United States, be liable for
violating section 4(a) of the CEA, 7 U.S.C. 6(a). Without knowing
the specifics of how each potential unregistered foreign board of
trade operates with respect to block trades involving IBs located in
the U.S. as well as other U.S. located participants, the Commission
is not in a position to opine generally on WMBAA's request. However,
the Commission notes that unregistered foreign boards of trade
seeking guidance concerning FBOT registration and its application to
their particular operations may request informal guidance from the
Division of Market Oversight.
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3. Commission Determination
The Commission is adopting, as proposed and as supported by
commenters, the amendment to Sec. 48.4(b) to permit FBOTs to provide
direct access to eligible IBs to enter orders directly into an FBOT's
trading and order matching system on behalf of U.S. customers.\25\ The
Commission agrees with commenters that permitting eligible IBs to
submit customer orders via direct access to FBOTs would benefit market
participants and affected markets,\26\ and is an appropriate update to
part 48 of the Commission's regulations given the increased role that
IBs now serve in derivatives markets.\27\ As discussed above, existing
Sec. 48.4(b) permits registered FBOTs to provide direct access to
eligible FCMs, CPOs and CTAs for submission of client orders. DCMs may
provide for IBs to act as executing brokers for customer accounts that
in turn use FCM clearing members to whom executed trades are given up
for clearing and through which such customer accounts are carried.\28\
FBOTs may similarly permit IBs located outside of the United States to
enter trades directly into the trading system of the FBOT on behalf of
their customer accounts.\29\ The Commission agrees with commenters that
the amendment to Sec. 48.4 will permit registered IBs located in the
U.S. to act in a comparable capacity on registered FBOTs in cases where
an FBOT grants direct access to the IB for the purpose of submitting
customer orders for execution.\30\ The Commission believes, as
supported by commenters, that allowing eligible IBs to have direct
access to registered FBOTs to execute transactions on behalf of their
U.S. clients is likely to: provide U.S. market participants that wish
to trade in foreign derivatives contracts with greater choice in
brokers and broker arrangements, and increase competition among firms
offering execution brokerage services to customers on registered FBOTs;
\31\ improve the ability for U.S. participants to manage risk; \32\ and
increase liquidity on affected markets.\33\ The Commission furthermore
believes, as supported by commenters, that permitting U.S. IBs access
to FBOTs on par with FCMs, CPOs, CTAs, and foreign brokers will not
undermine or otherwise adversely affect protections available to U.S.
customers because their trades must be guaranteed by a registered FCM
or firm exempt from FCM registration under Sec. 30.10,\34\ and will be
subject to required risk disclosures relating to foreign futures and
options transactions.\35\
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\25\ See Eurex Letter; FIA Letter; ICE Letter; NZX Letter; NIBA
Letter; WMBAA Letter; and Mein Letter.
\26\ See Eurex at 1-4; FIA at 2; ICE at 2, NIBA at 2; Mein at 5-
6, 8.
\27\ See Eurex at 3-4; FIA at 2; WMBAA at 2.
\28\ The Commission also agrees with ICE that the amendment to
48.4(b) ``would establish a similar structure that is already in
place on [DCMs] whereby IBs submit customer orders via direct
electronic access.'' ICE at 2.
\29\ See Eurex at 3; WMBAA at 3.
\30\ See WMBAA at 2-3. See also Eurex at 4; FIA at 2.
\31\ See FIA at 2; NZX at 1; NIBA at 2; WMBAA at 2-3.
\32\ See Eurex at 3-4; FIA at 2; WMBAA at 2; NIBA at 1.
\33\ See footnote 21, supra.
\34\ Including the provision relating to the guarantee of U.S.
customer trades in new Sec. 48.4(b)(4) will ensure that U.S.
customer trades executed by eligible IBs via direct access are
guaranteed by a firm that is registered as an FCM or exempt from FCM
registration under Sec. 30.10. In so doing, the final rule will act
to reinforce adherence with part 30, insofar as part 30 generally
requires intermediaries holding funds of U.S. customers in
connection with the offer or sale of foreign futures and options to
be registered as FCMs or exempt from FCM registration under Sec.
30.10. Part 30 of the Commission's regulations governs the offer and
sale of foreign futures and options to customers located in the
United States. These regulations are designed to carry out
Congress's intent that foreign futures and options offered or sold
in the U.S. be subject to regulatory safeguards comparable to those
applicable to domestic transactions. Section 30.4 of the
Commission's regulations requires that in order to accept any money,
securities or property (or extend credit in lieu thereof) to margin,
guarantee or secure transactions conducted by U.S. persons on an
FBOT, a person must be registered as an FCM. See 17 CFR 30.4(a). The
Commission may grant and has granted exemptions to this requirement
to register as an FCM based on petitions filed pursuant to 17 CFR
30.10. See footnote 11, supra. See also Eurex at 5-7; ICE at 2.
\35\ Section 30.6 of the Commission's regulations requires FCMs
and IBs to provide a statement to customers disclosing the risks of
trading foreign futures and options outside the United States. 17
CFR 30.6. This requirement also applies to exempt foreign IBs, CPOs,
and CTAs. 17 CFR 30.5(c). Petitions for exemptive relief under Sec.
30.10 for firms seeking an exemption from FCM registration must
demonstrate that such firms are subject to a comparable regulatory
program that includes, among other elements, minimum sales practice
standards, including ``disclosure of the risks of futures and
options transactions and, in particular, the risk of transactions
undertaken outside the jurisdiction of domestic law.'' 17 CFR part
30, Appendix A, Sales Practice Standards. See also Eurex at 4.
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Therefore, for the reasons stated above, the Commission is adopting
as proposed the amendment to Sec. 48.4(b) to permit FBOTs to provide
direct access to eligible IBs to enter orders directly into an FBOT's
trading and order matching system on behalf of U.S. customers.
Eurex and WMBAA each requested that the Commission clarify that the
Proposal would permit IBs to submit block trades to an FBOT (or
otherwise not prohibit them from doing so).\36\ Section 48.4(b)
provides that an FBOT may apply for registration under part 48 ``in
order to permit the members and other participants of the [FBOT] that
are located in the United States to enter trades directly into the
trading and order matching system of the foreign board of trade[. .
.].'' \37\ The Commission confirms and clarifies that this may include
block trades submitted to an FBOT. As such, and for the avoidance of
doubt, an FBOT registered under part 48 is not prohibited by this final
rule from allowing an eligible IB to which it has granted direct access
to submit block trades to the FBOT on behalf of the IB's U.S. clients.
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\36\ See Eurex at 4; WMBAA at 3.
\37\ 17 CFR 48.4(b).
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B. Section 48.8--Conditions of Registration
1. Proposed Regulations
The Commission proposed conforming amendments that will include
eligible IBs in Sec. Sec. 48.8(a)(4)(ii) and (a)(5)(i) and (iii)
alongside FCMs, CPOs and CTAs.
Section 48.8(a)(4)(ii) requires all orders transmitted via direct
access and pursuant to an FBOT's registration to be for a member's or
other participant's proprietary trading account unless transmitted by a
registered FCM, CPO or CTA (or exempt CPO or CTA). The Commission
proposed to include IBs in this section along with FCMs, CPOs and CTAs,
to conform with the proposed changes to Sec. 48.4(b) that would allow
[[Page 66205]]
eligible IBs to transmit orders via direct access on behalf of the
accounts of their customers. The Commission also proposed to add the
words ``registered as such'' following the final reference to ``futures
commission merchant'' in Sec. 48.8(a)(4)(ii) to conform to the
proposed amendment to Sec. 48.4(b)(3).\38\
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\38\ See footnote 12, supra, and accompanying text.
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Section 48.8(a)(5)(i) provides that a registered FBOT must require
each current and prospective member or other participant granted direct
access and not registered with the Commission as an FCM, CPO or CTA to
agree to and submit to the jurisdiction of the Commission with respect
to activities conducted pursuant to the FBOT's registration. Registered
FCMs, CPOs and CTAs are excluded from this requirement because they are
otherwise subject to the jurisdiction of the Commission as Commission
registrants. Registered IBs are likewise subject to the jurisdiction of
the Commission as registrants and the Commission therefore proposed to
include IBs alongside FCMs, CPOs and CTAs in Sec. 48.8(a)(5)(i).
Section 48.8(a)(5)(iii) provides that a registered FBOT, its
clearing organization, and each current and prospective member or other
participant granted direct access that is not registered with the
Commission as an FCM, CPO or CTA must maintain with the FBOT written
representations stating that such entity will provide prompt access to
books, records, and premises upon the request of the Commission, U.S.
Department of Justice and, if appropriate, the National Futures
Association (NFA). Registered FCMs, CPOs and CTAs are excluded from
this requirement because they are otherwise required to provide such
access to books, records, and premises as Commission registrants and,
where applicable, NFA members.\39\ Registered IBs, as Commission
registrants and NFA members, are likewise required to provide such
access to books, records, and premises by the Commission, U.S.
Department of Justice, and NFA, and the Commission therefore proposed
to include IBs alongside FCMs, CPOs and CTAs in Sec. 48.8(a)(5)(iii).
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\39\ Subpart C of part 170 of the Commission's regulations
provides for certain exceptions to the general requirement that
Commission-registered FCMs and CTAs must become NFA members. See 17
CFR 170.15 and 170.17.
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2. Public Comments
The Commission received no comments regarding the proposed
conforming amendments to include eligible IBs in Sec. Sec.
48.8(a)(4)(ii) and (a)(5)(i) and (iii) alongside FCMs, CPOs and CTAs.
3. Commission Determination
The Commission is adopting, as proposed, the amendments to
Sec. Sec. 48.8(a)(4)(ii) and (a)(5)(i) and (iii).
C. Section 48.9--Revocation of Registration
1. Proposed Regulations
The Commission proposed to amend Sec. 48.9 to establish a
procedure for FBOTs to request voluntary revocation of registration.
Section 48.9 addresses certain events which could lead the Commission
to revoke an FBOT's registration, including the failure to satisfy
registration requirements or conditions, and certain other specified
events.\40\ However, part 48 presently does not contain any provisions
for an FBOT to request voluntary revocation of its registration. In
order to allow registered FBOTs to more easily ascertain the steps
required to request revocation, the Commission proposed to amend Sec.
48.9(b) (``Other Events that Could Result in Revocation'') by adding a
new paragraph (b)(5).
---------------------------------------------------------------------------
\40\ See 17 CFR 48.9.
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2. Public Comments
The Commission received one comment regarding the proposed
amendments to Sec. 48.9 to establish a procedure for FBOTs to request
voluntary revocation of registration. NZX commented that it supports
the introduction of a revocation process for FBOTs because it will
provide greater certainty for entities that no longer wish to retain
their status as a registered FBOT.\41\
---------------------------------------------------------------------------
\41\ NZX at 3.
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3. Commission Determination
The Commission agrees with NZX that the amendment will provide
greater certainty for entities that no longer wish to retain their
status as a registered FBOT.\42\ Therefore, for the reasons stated
above and as supported by public comment, the Commission is adopting as
proposed the addition of Sec. 48.9(b)(5) which makes clear that the
Commission may revoke an FBOT's registration in response to a voluntary
request by an FBOT to do so, and provides that an FBOT can make such
request via email to the Commission.
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\42\ Id.
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D. Section 48.6--Foreign Boards of Trade Providing Direct Access
Pursuant to Existing No-Action Relief
1. Proposed Regulations
Section 48.6 provides for a limited registration application
procedure for FBOTs that had been operating under existing staff no-
action letters and FBOTs that had submitted a complete application for
a staff no-action letter that was pending as of the effective date of
part 48. Those limited application provisions are no longer applicable
because all FBOTs with previously existing staff no-action letters have
been registered under part 48 and all such no-action letters have been
revoked. Accordingly, the Commission proposed to delete Sec. 48.6. As
a conforming amendment the Commission also proposed to delete Sec.
48.2(h) (definition of ``existing no-action relief'') as that
definition will no longer be applicable or necessary once existing
Sec. 48.6 is removed.
2. Public Comments
The Commission received one comment generally in support of the
proposed deletion of Sec. 48.6 and the conforming deletion of Sec.
48.2(h).\43\
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\43\ NZX states that it supports the removal of Sec. 48.6,
which is obsolete, and the removal of Sec. 48.2(h) as a conforming
amendment. NZX at 3.
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3. Commission Determination
Therefore, for the reasons stated above, the Commission is adopting
as proposed the deletion of Sec. 48.6 and the conforming deletion of
Sec. 48.2(h).
III. Related Matters
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires agencies to consider
whether the regulations they promulgate will have a significant
economic impact on a substantial number of small entities and, if so,
provide a regulatory flexibility analysis with respect to such
impact.\44\ The Commission has previously established certain
definitions of ``small entities'' to be used by the Commission in
evaluating the impact of its regulations on small entities in
accordance with the RFA.\45\ The amendments to part 48 would impact
FBOTs. The Commission has previously determined that FBOTs are not
small entities for purposes of the RFA.\46\
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\44\ 5 U.S.C. 601 et seq.
\45\ See Policy Statement and Establishment of ``Small
Entities'' for purposes of the Regulatory Flexibility Act, 47 FR
18618 (Apr. 30, 1982).
\46\ 76 FR 80698.
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The amendments to part 48 would also impact eligible IBs by
providing
[[Page 66206]]
them with the potential to gain direct access to FBOTs that incorporate
the new regulatory provisions allowing such IBs direct access. The
Commission has previously established that IBs may in some cases be
deemed ``small entities'' for the purposes of the RFA.\47\ However, the
final rules do not impose any new burden on eligible IBs. Instead, the
final rules would remove a regulatory barrier preventing these small
entities from accessing FBOTs. Accordingly, the Commission believes
that the regulation will be less burdensome to small-entity, eligible
IBs and will not impose any additional costs on them.
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\47\ 85 FR 78718, 78733 (Dec. 7, 2020).
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Therefore, the Chairman, on behalf of the Commission, pursuant to 5
U.S.C. 605(b), hereby certifies that the final rules will not have a
significant economic impact on a substantial number of small entities.
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) \48\ imposes certain
requirements on Federal agencies (including the Commission) in
connection with conducting or sponsoring any ``collection of
information,'' \49\ as defined by the PRA. 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 currently valid control
number from the Office of Management and Budget (OMB).\50\ The PRA is
intended, in part, to minimize the paperwork burden created for
individuals, businesses, and other persons as a result of the
collection of information by Federal agencies, to ensure the greatest
possible benefit and utility of information created, collected,
maintained, used, shared, and disseminated by or for the Federal
Government.\51\ The PRA applies to all information, ``regardless of
form or format,'' whenever the government is obtaining, causing to be
obtained, or soliciting information, and includes required disclosure
to third parties or the public, of facts or opinions, when the
information collection calls for answers to identical questions posed
to, or identical reporting or recordkeeping requirements imposed on,
ten or more persons.\52\
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\48\ 44 U.S.C. 3501 et seq.
\49\ See 44 U.S.C. 3502(3)(A).
\50\ See 44 U.S.C. 3507(a)(3); 5 CFR 1320.5(a)(3).
\51\ See 44 U.S.C. 3501.
\52\ See 44 U.S.C. 3502(3).
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This final rulemaking amends regulations that contain collections
of information for which the Commission has previously received a
control number from OMB: 3038-0101, Registration of Foreign Boards of
Trade (17 CFR part 48).\53\ This collection addresses the information
collection requirements associated with part 48's registration
requirement and related registration procedures and conditions that
apply to FBOTs that wish to provide direct access to their electronic
trading and order matching systems. The final rulemaking allows
eligible IBs to act as direct access participants on registered FBOTs,
provides a process for FBOTs to request voluntary revocation of their
registration, and removes outdated references to ``no action relief.''
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\53\ The Commission's most recent burden estimates for this
collection are available at https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202301-3038-001.
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The Commission believes that these amendments do not contain any
new collections of information and will not increase the burden
associated with the information collections under part 48. While the
amendments establish a new process for FBOTs to submit requests for
revocation of their registration, the regulations allow FBOTs to submit
their requests electronically via email to the Commission and do not
mandate any specific form or format for such requests. Accordingly,
this new submission method does not constitute a collection of
information under the PRA. In addition, the amendments do not affect
the provisions of part 48 covered in the current PRA approval (Sec.
48.8 (periodic data submissions to the Commission), Sec. 48.9
(demonstration of compliance); and Sec. 48.10 (listing additional
futures and options contracts)). Accordingly, the Commission is
retaining its existing estimates for the burden associated with the
information collections under OMB Collection 3038-0101. The Commission
received no comments related to the PRA analysis or this determination.
C. Cost-Benefit Considerations
1. Introduction
Section 15(a) of the CEA \54\ requires the Commission to ``consider
the costs and benefits'' of its actions before promulgating a
regulation under the CEA or issuing certain orders. CEA section 15(a)
further specifies that the costs and benefits shall be evaluated in
light of five broad areas of market and public concern: (1) protection
of market participants and the public; (2) efficiency, competitiveness,
and financial integrity of futures markets; (3) price discovery; (4)
sound risk management practices; and (5) other public interest
considerations. The Commission considers the costs and benefits
resulting from its discretionary determinations with respect to the CEA
section 15(a) factors.
---------------------------------------------------------------------------
\54\ 7 U.S.C. 19(a).
---------------------------------------------------------------------------
The Commission has endeavored to assess the expected costs and
benefits of the amendments in quantitative terms, including Paperwork
Reduction Act (PRA)-related costs, where practicable. In situations
where the Commission is unable to quantify the costs and benefits, the
Commission identifies and considers the costs and benefits of the
applicable amendments in qualitative terms. The Commission did not
receive any comments from commenters which quantified or attempted to
quantify the costs and benefits of the Proposal.
The Commission notes that this consideration of costs and benefits
is based on, inter alia, its understanding that the derivatives markets
regulated by the Commission function internationally, with (1)
transactions that involve entities organized in the United States
occurring across different international jurisdictions, (2) some
entities organized outside of the United States that are prospective
Commission registrants, and (3) some entities that typically operate
both within and outside the United States, and that follow
substantially similar business practices wherever located. Where the
Commission does not specifically refer to matters of location, the
discussion of costs and benefits below refers to the effects of the
regulations on all relevant derivatives activity, whether based on
their actual occurrence in the United States or on their connection
with activities in, or effect on, U.S. commerce.\55\
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\55\ See, e.g., 7 U.S.C. 2(i).
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In the following consideration of costs and benefits, the
Commission first identifies and discusses the benefits and costs
attributable to the rule amendments. The Commission, where applicable,
then considers the costs and benefits of the rule amendments in light
of the five public interest considerations set out in section 15(a) of
the CEA.
2. Final Regulations
The Commission is amending certain rules in part 48 of its
regulations relating to FBOTs. The Commission identifies the costs and
benefits of the amendments relative to the baseline of the regulatory
status quo. In particular, the baseline against which the Commission
considers the costs and benefits of these rule amendments is the
statutory and regulatory requirements of the CEA and Commission
regulations
[[Page 66207]]
now in effect, in particular CEA section 4(b) and part 48 of the
Commission's regulations.
Amendments to Sec. 48.6
The final rules delete Sec. 48.6, which provided for an alternate
registration procedure for FBOTs acting under the preexisting staff no-
action letter process, because such no-action letter process and no-
action letters are no longer in effect. Deletion of Sec. 48.6 and
elimination of the alternate registration procedure will not increase
costs to FBOTs because Sec. 48.6 and the alternate registration
procedure are already in effect obsolete.
Amendments to Sec. 48.9
The amendment to Sec. 48.9 establishes a procedure for FBOTs to
request voluntary revocation of registration. This amendment would not
impose a new requirement for FBOTs. The baseline is the current
practice of the Commission, whereby requests for voluntary revocation
are processed on an ad-hoc basis. The primary benefit will be to allow
registrants to more easily ascertain the steps required to request
revocation. The amendments are not expected to increase costs to
registered FBOTs compared to the status quo.
Amendments to Sec. 48.4 and Conforming Amendments to Sec. 48.8
The amendments to Sec. 48.4 and conforming amendments to Sec.
48.8 permit a registered FBOT to provide direct access to its
electronic trading and order matching system to an identified member or
other participant located in the U.S. and registered with the
Commission as an IB for submission of customer orders to the FBOT's
trading system for execution, provided that all trades effected through
submission of U.S. customer orders are guaranteed by a registered FCM
or a firm exempt from FCM registration pursuant to Sec. 30.10.
There are presently 24 FBOTs registered with the Commission. Under
the current rules, eligible intermediaries permitted direct access on
registered FBOTs for purposes of entering trades on behalf of non-
proprietary client accounts include certain FCMs, CTAs, and CPOs. The
amendments would add eligible IBs to the existing list of eligible
intermediaries. Similar to trades submitted by CTAs and CPOs via direct
access, the trades executed by eligible IBs on behalf of customers
located in the U.S. would be required to be guaranteed by a registered
FCM or a firm exempt from FCM registration pursuant to Sec. 30.10. IBs
specialize in soliciting and executing orders for their clients. The
field of trade execution is continuously evolving with technological
advances, and has helped bring down execution costs. As of July 2024,
the following numbers of intermediaries were registered with the
Commission.\56\
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\56\ NFA website, https://www.nfa.futures.org/registration-membership/membership-and-directories.html.
Intermediaries Registered With the Commission as of July 2024
------------------------------------------------------------------------
------------------------------------------------------------------------
CTAs \1\.................................................... 1,237
CPOs \1\.................................................... 1,188
IBs......................................................... 919
FCMs........................................................ 62
Swap Dealers................................................ 107
------------------------------------------------------------------------
\1\ These categories are not mutually exclusive, i.e., a CPO may also be
registered as a CTA.
The table above shows that the number of IBs is more than one
quarter of all Commission-registered intermediaries. The Commission
does not know how many FBOTs will choose to provide direct access to
eligible IBs for purposes of entering trades on behalf of non-
proprietary client accounts or how many eligible IBs will become direct
access members or participants of registered FBOTs pursuant to this
final rule. There could also be new IB entrants that are granted direct
access to registered FBOTs. However, by permitting FBOTs the option to
provide direct access to eligible IBs for submission of customer
orders, the amendments could lead to a significant increase in the
number of choices for U.S. customers with respect to execution of
trades on FBOTs.
Although the Commission lacks the data and information to
quantitatively estimate the costs and benefits of permitting IBs
located in the U.S. to have direct access to registered FBOTs pursuant
to this final rule, it has endeavored to assess the expected costs and
benefits of the proposal in qualitative terms. The lack of data and
information to estimate costs is attributable in part to uncertainty
regarding how FBOTs will choose to respond to the amendments to part 48
and how IBs located in the U.S. will choose to respond to potential new
opportunities to participate on registered FBOTs.
The baseline is the status quo in which Sec. 48.4 permits FBOTs to
provide direct access to certain FCMs, CPOs and CTAs for purposes of
transmission of orders for certain client accounts. Furthermore,
foreign IBs not located in the U.S. may have similar arrangements on
FBOTs whereby their customer orders are transmitted to an FBOT.\57\ IBs
are not included in Sec. 48.4 as intermediaries eligible to have
direct access and transmit trades on behalf of customers. As such,
registered FBOTs currently do not provide direct access to IBs located
in the United States to enter orders on behalf of their customers.
---------------------------------------------------------------------------
\57\ The definition of ``direct access'' does not include
identified members or other participants of an FBOT that are located
outside of the United States. See 17 CFR 48.2(c).
---------------------------------------------------------------------------
Relative to the baseline, the primary effect of the amendment to
Sec. 48.4 is to allow registered FBOTs to provide direct access to
eligible IBs in order to transmit orders of U.S. customers. This could
promote competition among execution-only brokers on registered FBOTs.
There may be advantages to customers from having additional choices in
brokers and brokerage arrangements to trade foreign derivatives on
registered FBOTs--for example, lower trading costs or the use of
advantageous proprietary execution algorithms developed by such IBs.
Several commenters assert that the amendments will allow U.S.
participants to better conduct risk management by enabling trades to be
submitted to FBOTs through IBs during the U.S. business day following
the close of European markets.\58\ From the standpoint of registered
FBOTs, allowing eligible IBs to become direct access participants for
submission of customer orders will open up potential new distribution
channels that could lead to additional trading volume. This in turn
could improve the viability of some traded instruments. Similarly,
eligible IBs may be able to pursue new business models and/or expand
existing business models onto new foreign markets.
---------------------------------------------------------------------------
\58\ Eurex at 3-4; FIA at 2; NIBA at 1.
---------------------------------------------------------------------------
FBOTs that decide to provide direct access to eligible IBs pursuant
to this final rule and that do not already have necessary structures in
place to do so may incur certain costs relating to, for example,
modification of rules, procedures and/or systems to enable direct
access to eligible IBs to submit customer orders to the FBOT's trading
system for execution.
The Commission did not receive any comments which quantified or
attempted to quantify any of the costs and benefits described above, or
which quantified or attempted to quantify any other costs or benefits
associated with eligible IBs having direct access to registered FBOTs.
Section 15(a) Factors
Section 15(a) of the CEA requires the Commission to consider the
costs and
[[Page 66208]]
benefits of the amendments to part 48 with respect to the following
factors: protection of market participants and the public; efficiency,
competitiveness, and financial integrity of markets; price discovery;
sound risk management practices; and other public interest
considerations.
(i) Protection of Market Participants and the Public
The changes to part 48 would not affect the basic protection for
customers with respect to their foreign futures and options
transactions. Under the rule, U.S. customer assets are required to be
maintained by registered FCMs or similar entities exempt from FCM
registration pursuant to Sec. 30.10.
(ii) Efficiency, Competitiveness, and Financial Integrity of Markets
The current part 48 treats IBs differently from certain FCMs, CTAs
and CPOs in that certain FCMs, CTAs and CPOs have the ability to be
granted direct access to registered FBOTs for the submission of client
orders. Similarly, non-U.S. intermediaries (which are outside of the
scope of part 48) may also, under the status quo, be granted similar
access to registered FBOTs for the purpose of offering execution
services to U.S. and non-U.S. customers. The adopted amendments to part
48 will permit eligible IBs to offer competing execution services on
registered FBOTs. The adopted amendments may also open access to
foreign derivatives markets for existing IB customers that otherwise
would not have access to trading on a registered FBOT (i.e., customers
that choose not to or cannot become direct access participants or
otherwise seek out an eligible FCM, CPO, CTA, or foreign broker to
transact on an FBOT). Greater competition among introducing brokers and
potentially additional and new types of customers participating in
affected markets may lead to increased market efficiencies and greater
financial integrity. Furthermore, that trades of U.S. customers must be
guaranteed by registered FCMs or comparable foreign firms promotes the
financial integrity of affected markets by ensuring that intermediaries
handling U.S. customer funds are subject to certain regulatory
safeguards.
(iii) Price Discovery
There is a potential for the adopted changes to part 48 to
positively affect price discovery in futures markets. Participation of
eligible IBs as direct access members may lead to increased
participation and volume on registered FBOTs, in particular during
hours when U.S. brokers are more active than foreign brokers.
(iv) Risk Management Practices
As noted above, the changes will not affect how customer assets are
treated. However, registered FCMs and firms exempt from FCM
registration pursuant to Sec. 30.10 may need to expand their risk
mitigation processes to ensure that they have robust processes for
managing the risk associated with eligible IBs executing trades on
registered FBOTs via direct access.
(v) Other Public Interest Considerations
As noted above, the changes may enable new and distinct kinds of
market participants to access registered FBOTs, which could help
improve liquidity and reduce fragmentation in affected markets.
D. Antitrust Considerations
Section 15(b) of the CEA requires the Commission to take into
consideration the public interest to be protected by the antitrust laws
and endeavor to take the least anticompetitive means of achieving the
purposes of this Act, in issuing any order or adopting any Commission
rule or regulation (including any exemption under section 4(c) or
4c(b)), or in requiring or approving any bylaw, rule, or regulation of
a contract market or registered futures association established
pursuant to section 17 of this Act.\59\
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\59\ 7 U.S.C. 19(b).
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The Commission believes that the public interest to be protected by
the antitrust laws is generally to protect competition. The Commission
has considered the modified rule to determine whether it is
anticompetitive and has identified no anticompetitive effects.\60\
Because the Commission has determined that the modified rule is not
anticompetitive and has no anticompetitive effects, the Commission has
not identified any less anticompetitive means of achieving the purposes
of the Act.
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\60\ The Commission received several comments stating that the
modified rule may increase competition and/or promote fair
competition among brokers. See FIA at 2 (stating that the rule may
``work to increase competition in brokering foreign products'');
NIBA at 2 (stating that ``IBs should have the same access to FBOTs
as CPOs and CTAs currently enjoy'' and that the modified rule ``can
provide additional market choices for IBs and their customers'');
WMBAA at 2-3 (stating that the rule will ``promote competition among
firms offering execution brokerage services to customers on
registered FBOTs,'' and that the rule ``allows for the growth of
competitive markets without impeding liquidity formation'').
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List of Subjects in 17 CFR Part 48
Registration of foreign boards of trade.
For the reasons stated in the preamble, the Commodity Futures
Trading Commission amends 17 CFR part 48 as follows:
PART 48--REGISTRATION OF FOREIGN BOARDS OF TRADE
0
1. The authority citation for part 48 continues to read as follows:
Authority: 7 U.S.C. 5, 6 and 12a, unless otherwise noted.
Sec. 48.2 [Amended]
0
2. In Sec. 48.2 remove paragraph (h) and redesignate paragraphs (i)
through (l) as paragraphs (h) through (k), respectively.
0
3. In Sec. 48.4 revise paragraph (b) to read as follows:
Sec. 48.4 Registration eligibility and scope.
* * * * *
(b) A foreign board of trade may apply for registration under this
part in order to permit the members and other participants of the
foreign board of trade that are located in the United States to enter
trades directly into the trading and order matching system of the
foreign board of trade, to the extent that such members or other
participants are:
(1) Entering orders for the member's or other participant's
proprietary accounts;
(2) Registered with the Commission as futures commission merchants
and are submitting customer orders to the trading system for execution;
(3) Registered with the Commission as a commodity pool operator or
commodity trading advisor, or are exempt from such registration
pursuant to Sec. 4.13 or Sec. 4.14 of this chapter, and are
submitting orders for execution on behalf of a United States pool that
the member or other participant operates or an account of a United
States customer for which the member or other participant has
discretionary authority, respectively, provided that a futures
commission merchant registered with the Commission as such or a firm
exempt from such registration pursuant to Sec. 30.10 of this chapter
acts as clearing firm and guarantees, without limitation, all such
trades of the commodity pool operator or commodity trading advisor
effected through submission of orders to the trading system; or
(4) Registered with the Commission as introducing brokers and are
submitting customer orders to the trading system for execution,
provided that a futures commission merchant registered with the
Commission as such or a firm exempt from such registration pursuant to
Sec. 30.10 of this chapter acts as a clearing firm and guarantees,
without limitation, all trades of the introducing
[[Page 66209]]
broker effected through submission of orders for United States
customers to the trading system.
Sec. 48.6 [Removed and Reserved]
0
4. Remove and reserve Sec. 48.6.
0
5. In Sec. 48.8, revise paragraphs (a)(4)(ii) and (a)(5)(i) and (iii)
to read as follows:
Sec. 48.8 Conditions of registration.
* * * * *
(a) * * *
(4) * * *
(ii) All orders that are transmitted to the foreign board of
trade's trading system by a foreign board of trade's identified member
or other participant that is operating pursuant to the foreign board of
trade's registration will be solely for the member's or trading
participant's own account unless such member or other participant is
registered with the Commission as a futures commission merchant or such
member or other participant is registered with the Commission as an
introducing broker, commodity pool operator or commodity trading
advisor, or is exempt from registration as a commodity pool operator or
commodity trading advisor pursuant to Sec. 4.13 or Sec. 4.14 of this
chapter, provided that a futures commission merchant registered with
the Commission as such or a firm exempt from such registration pursuant
to Sec. 30.10 of this chapter acts as clearing firm and guarantees,
without limitation, all trades of the introducing broker, commodity
pool operator or commodity trading advisor effected through submission
of orders for United States pools or customers to the trading system.
(5) * * *
(i) Prior to operating pursuant to registration under this part and
on a continuing basis thereafter, a registered foreign board of trade
will require that each current and prospective member or other
participant that is granted direct access to the foreign board of
trade's trading system and that is not registered with the Commission
as a futures commission merchant, an introducing broker, a commodity
trading advisor or a commodity pool operator, file with the foreign
board of trade a written representation, executed by a person with the
authority to bind the member or other participant, stating that as long
as the member or other participant is authorized to enter orders
directly into the trade matching system of the foreign board of trade,
the member or other participant agrees to and submits to the
jurisdiction of the Commission with respect to activities conducted
pursuant to the registration.
* * * * *
(iii) The foreign board of trade, clearing organization, and each
current and prospective member or other participant that is granted
direct access to the foreign board of trade's trading system and that
is not registered with the Commission as a futures commission merchant,
an introducing broker, a commodity trading advisor, or a commodity pool
operator will maintain with the foreign board of trade written
representations, executed by persons with the authority to bind the
entity making them, stating that as long as the foreign board of trade
is registered under this part, the foreign board of trade, the clearing
organization or member of either or other participant granted direct
access pursuant to this part will provide, upon the request of the
Commission, the United States Department of Justice and, if
appropriate, the National Futures Association, prompt access to the
entity's, member's, or other participant's original books and records
or, at the election of the requesting agency, a copy of specified
information containing such books and records, as well as access to the
premises where the trading system is available in the United States.
* * * * *
0
6. In Sec. 48.9, add paragraph (b)(5) to read as follows:
Sec. 48.9 Revocation of registration.
* * * * *
(b) * * *
(5) The Commission may revoke a foreign board of trade's
registration in response to a voluntary request by the foreign board of
trade to vacate its registration. A foreign board of trade may file a
request to vacate its registration with the Secretary of the Commission
at [email protected].
* * * * *
Issued in Washington, DC, on August 6, 2024, by the Commission.
Robert Sidman,
Deputy Secretary of the Commission.
Note: The following appendices will not appear in the Code of
Federal Regulations.
Appendices to Foreign Boards of Trade--Voting Summary and Chairman's
and Commissioners' Statements
Appendix 1--Voting Summary
On this matter, Chairman Behnam and Commissioners Johnson, and
Goldsmith Romero, Mersinger, and Pham voted in the affirmative. No
Commissioner voted in the negative.
Appendix 2--Statement of Chairman Rostin Behnam
I support this final rule, which amends the CFTC regulations for
foreign boards of trade (FBOTs). The amendments permit a registered
FBOT to provide direct access to its electronic trading and order
matching system to a registered introducing broker (IB) located in
the United States for submission of customer orders to the FBOT's
trading system for execution. Based upon more than ten years of
Commission experience with the existing rules for FBOTs, the
amendments also enhance and modernize the ruleset.
The existing FBOT rules were promulgated in 2011. Today's
amendments demonstrate the Commission's ongoing consideration of its
existing rules and my commitment to ensuring that our rules address
the reality of today's markets and their structure. The changes
enable new types of market participants to access registered FBOTs,
improving liquidity and promoting healthier markets.
I thank staff in the Division of Market Oversight, Office of the
General Counsel, and the Office of the Chief Economist for all of
their work on this final rule.
Appendix 3--Statement of Commissioner Kristin N. Johnson
The Commodity Futures Trading Commission (Commission) approved a
final rule that amends Part 48 to permit a foreign board of trade
(FBOT) registered with the Commission to provide introducing brokers
(IBs) located in the United States and registered with the
Commission direct access to submit orders to trade foreign futures
and options on behalf of customers located in the United States
(Final Rule).\1\ Under the Final Rule, FBOTs will be able to provide
registered IBs located in the United States with direct access to
execute customer trades, provided that they submit such orders for
clearing to a Commission-registered FCM or a firm exempt from FCM
registration under CFTC Regulation 30.10.
---------------------------------------------------------------------------
\1\ The Commission is also establishing a procedure for an FBOT
to request the revocation of its registration, and removing certain
outdated references to ``existing no-action relief.''
---------------------------------------------------------------------------
Over the course of my tenure as a Commissioner, I have
consistently supported the Commission's efforts to advance the
protection of customer funds. I appreciate the thoughtful comments
regarding the Commission's 30.10 framework in the context of the
Final Rule and the attention given to the need to ensure that the
foreign regime has comparable customer protection, disclosure, and
anti-money laundering requirements.
I support the Final Rule, which includes important protections
for U.S. customers, while also facilitating market access. I commend
the careful work of the staff of the Division of Market Oversight,
including Alexandros Stamoulis, Roger Smith, Maura Dundon, and David
Reiffen, on the Final Rule.
[[Page 66210]]
Appendix 4--Statement of Commissioner Caroline D. Pham
I support the Foreign Boards of Trade (FBOT) Final Rule because
it promotes access to markets for U.S. participants, competition,
and liquidity. I would like to thank Maura Dundon, Roger Smith, and
Alexandros Stamoulis in the CFTC's Division of Market Oversight for
their work on this rulemaking.
I will reiterate key points from my statement on the FBOT
proposed rule.\1\ As a CFTC Commissioner, I have made it clear that
I believe in good policy that enables growth, progress, and access
to markets.\2\ Accordingly, I am pleased to support Commission
efforts that take a pragmatic approach to issues that hinder market
access and cross-border activity. I continue to believe that this
rulemaking exemplifies policy that ensures a level playing field,
and I applaud this step in the right direction for market structure.
---------------------------------------------------------------------------
\1\ Statement of Commissioner Caroline D. Pham in Support of
Foreign Board of Trade Proposal (Feb. 20, 2024), https://www.cftc.gov/PressRoom/SpeechesTestimony/phamstatement022024.
\2\ See, e.g., Keynote Address by Commissioner Caroline D. Pham,
98th Annual Convention of the American Cotton Shippers Association
(June 22, 2022), https://www.cftc.gov/PressRoom/SpeechesTestimony/opapham2; Statement of Commissioner Caroline D. Pham on Staff Letter
Regarding ADM Investor Services, Inc. (June 16, 2023), https://www.cftc.gov/PressRoom/SpeechesTestimony/phamstatement061623.
---------------------------------------------------------------------------
FBOTs have been a critical piece of the CFTC's markets for
decades and provide access for U.S. market participants to non-U.S.
markets in realization of the global economy and international
business.\3\ The main substantive amendment in the FBOT Final Rule
is to Regulation 48.4, which will now include introducing brokers
(IBs) \4\ as a permissible intermediary, in addition to futures
commission merchants (FCMs), commodity pool operators (CPOs), and
commodity trading advisors (CTAs), to enter orders on behalf of
customers or commodity pools via direct access on a registered
FBOT.\5\ I believe that the FBOT Final Rule will provide more choice
in brokers and broker arrangements for U.S. market participants that
trade foreign futures and ensure that appropriate customer
protections are in place.
---------------------------------------------------------------------------
\3\ While FBOTs initially had operated pursuant to no-action
relief, in 2011, following the Dodd-Frank Wall Street and Consumer
Protection Act of 2010, the Commission began registering FBOTs. See
Registration of Foreign Boards of Trade, Final Rule, 76 FR 80674
(Dec. 23, 2011), https://www.federalregister.gov/documents/2011/12/23/2011-31637/registration-of-foreign-boards-of-trade.
\4\ The Commission generally defines an IB as an individual or
organization that solicits or accepts orders to buy or sell futures
contracts, commodity options, retail off-exchange forex or commodity
contracts, or swaps, but does not accept money or other assets from
customers to support these orders. Commodity Exchange Act (CEA)
section 1a(31); 17 CFR 1.3(mm). The Commission registers IBs under
CEA section 4d(g) and CFTC Regulation 3.4(a). 7 U.S.C. 6d(g) and 17
CFR 3.4(a).
\5\ 17 CFR 48.4.
---------------------------------------------------------------------------
As sponsor of the CFTC's Global Markets Advisory Committee
(GMAC),\6\ I have devoted a significant part of my Commissionership
to supporting solutions that will enhance the resiliency and
efficiency of global markets.\7\ The FBOT Final Rule is policy that
mitigates market fragmentation and the associated impact on
liquidity, and promotes the overall competitiveness of our
derivatives markets. I am pleased to support the FBOT Final Rule.
---------------------------------------------------------------------------
\6\ CFTC Global Markets Advisory Committee, https://www.cftc.gov/About/AdvisoryCommittees/GMAC. See Commissioner Pham
Announces New Members and Leadership of the CFTC's Global Markets
Advisory Committee and Subcommittees (June 30, 2023), https://www.cftc.gov/PressRoom/PressReleases/8740-23.
\7\ E.g., Achieving Growth and Progress: Statement of
Commissioner Caroline D. Pham at the Global Markets Advisory
Committee June 4 Meeting (June 4, 2024), https://www.cftc.gov/PressRoom/SpeechesTestimony/phamstatement060424; Opening Statement
of Commissioner Caroline D. Pham before the Global Markets Advisory
Committee (Feb. 13, 2023), https://www.cftc.gov/PressRoom/SpeechesTestimony/phamstatement021323. To date, the GMAC has
advanced 13 recommendations and reports to the Commission on a broad
set of significant global markets issues, including U.S. Treasury
market liquidity, well-functioning repo and funding markets, capital
and margin requirements, exchange volatility controls, T+1
securities settlement, improved collateral management, central
counterparty (CCP) default simulation, streamlining trade reporting
data to monitor systemic risk, and a foundational digital asset
taxonomy to facilitate alignment in regulation across jurisdictions.
[FR Doc. 2024-17828 Filed 8-14-24; 8:45 am]
BILLING CODE 6351-01-P | usgpo | 2024-10-08T13:26:20.374966 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-17828.htm"
} |
FR | FR-2024-08-15/2024-18249 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66210-66214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18249]
=======================================================================
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DEPARTMENT OF STATE
22 CFR Part 120
[Public Notice: 12422]
RIN 1400-AF26
International Traffic in Arms Regulations: Amendments to the
Definition of Activities That Are Not Exports, Reexports, Retransfers,
or Temporary Imports
AGENCY: Department of State.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of State (the Department) published a proposed
rule on December 16, 2022, to include two new entries to the
International Traffic in Arms Regulations (ITAR) to expand the
definition of ``activities that are not exports, reexports,
retransfers, or temporary imports.'' The Department is now responding
to the public comments received in response to that proposed rule and
finalizing the proposed rule with changes.
DATES: The rule is effective on September 16, 2024.
FOR FURTHER INFORMATION CONTACT: Sarah Heidema, Office of Defense Trade
Controls Policy, Department of State, telephone (202) 634-4981; email
[email protected] ATTN: Regulatory Change, ITAR 120.54
additions.
SUPPLEMENTARY INFORMATION: On December 16, 2022, the Department of
State published a proposed rule (87 FR 77046), to include two new
entries to Sec. 120.54 of the International Traffic in Arms
Regulations (ITAR) to expand the definition of ``activities that are
not exports, reexports, retransfers, or temporary imports.'' Activities
listed in ITAR Sec. 120.54 do not require an authorization from the
Department's Directorate of Defense Trade Controls (DDTC). The
Department has received delegated authority under section 38 of the
Arms Export Control Act (AECA) (22 U.S.C. 2778) to issue regulations
regarding the export of defense articles and defense services. It has
long used this authority to define what events are controlled as
exports and what events are not. Moreover, section 38(b) of the AECA
also provides supporting authority, as the Department may by regulation
except instances where a license would otherwise be required.
Accordingly, the Department proposed this rule to amend ITAR Sec.
120.54 in two ways. First, the proposed rule provided that, subject to
certain conditions, the taking of U.S. defense articles outside a
previously approved country by the armed forces of a foreign government
or United Nations personnel on a deployment or training exercise is not
an export, reexport, retransfer, or temporary import. Second, the
proposed rule provided that a foreign defense article that enters the
United States, either permanently or temporarily, and that is
subsequently exported from the United States pursuant to a license or
other approval under this subchapter, is not subject to the reexport
and retransfer requirements of this subchapter, provided it has not
been modified, enhanced, upgraded, or otherwise altered or improved or
had a U.S.-origin defense article incorporated into it. In that
proposed rule, the Department requested comments from the public. The
Department now provides responses to those comments and amends the
ITAR, with changes from the proposed rule, through this final
rulemaking.
Summary of Changes From the Proposed Rule
The following are six changes the Department made in this final
rule since the development and publication of the December 16, 2022,
proposed rule (87 FR 77046). First, to provide additional clarity, the
Department inverted the order of proposed paragraphs (a)(6)(i)
[[Page 66211]]
and (ii). The first provision now notes there is no change in end-use
or end-user, and the next provision is the requirement that the items
be transported by and remain in the possession of the previously
authorized armed forces or United Nations military personnel.
Second, the Department amended the text of proposed paragraph
(a)(6)(ii), which will now become paragraph (a)(6)(i), by changing
``subject defense article'' to ``defense article'' to reduce
unnecessary text.
Third, the Department amended the text of proposed paragraph
(a)(6)(i), which will now become paragraph (a)(6)(ii), by adding the
phrase ``previously authorized'' before ``armed forces'' to reinforce
that the armed forces or United Nations (U.N.) military personnel
transporting and in possession of the defense articles must be
previously authorized end-users of the defense articles.
Fourth, the Department also amended the text of proposed paragraph
(a)(6)(i), which will now become paragraph (a)(6)(ii), by revising the
phrase ``U.N. personnel'' to ``U.N. military personnel.'' The
Department added the additional word to ensure that non-military
persons associated with U.N. missions, such as civilians, including
police, working for various U.N. agencies are not mistakenly believed
to be described by the provision.
For the fifth and sixth changes, the Department narrowed the scope
of the proposed excluded list of activities that are not exports,
reexports, retransfers, or temporary imports, by not excluding
temporary imports into the United States, or subsequent exports.
Although exports and temporary imports were originally included in the
proposed rule, since publication and during the review period, the
Department reassessed the inclusion of those activities in light of a
comment received, information received from an interagency partner, and
the intended purpose of the rule. More specifically, one commenter
requested clarification that licenses for temporary imports would not
be required under the proposed rule text. The response to this comment
is discussed more below, but highlighted aspects of the proposed rule
the Department was already focused on. In addition, the Department
conferred with interagency partners regarding the Automated Commercial
Environment (ACE), the system through which imports, including
temporary imports, and exports are reported. Considerations of tracking
temporary imports and a long process to change ACE reporting and coding
options led the Department to reevaluate this aspect of its proposal in
this particular rulemaking. Moreover, the intent of the proposed rule
was to consider eliminating the need to submit reexport and retransfer
requests for activities that are routinely approved and to provide
clarity regarding subsequent control of unmodified foreign-origin
defense articles that have been subject to ITAR control while in the
United States. The resulting change in this rule does not impose any
new obligation or requirement. Rather, it is a reduction in the scope
of the broader exemption initially proposed.
Accordingly, the Department added a third limitation to proposed
paragraph (a)(6). This third limitation in what will now become ITAR
Sec. 120.54(a)(6)(iii), ``the defense article is not being exported
from or temporarily imported into the United States,'' prohibits the
applicability of the provision for exports from the United States and
temporary imports into the United States. The Department added this
third limitation to avoid complications when transiting the U.S. border
and to stay within the intent of this portion of the rule, which is to
clarify policy regarding reexports and retransfers of defense articles
previously authorized for export from the United States and in the
possession of the armed forces of a foreign government or United
Nations military personnel. This makes express in the regulations a
long-standing practice set forth since 2013 in DDTC's publicly
available ``Guidelines for Preparing Agreements.''
Similarly, the Department added a new paragraph (a)(7)(iii), using
the same language as found in new paragraph (a)(6)(iii). The new
paragraph (a)(7)(iii) states that a transfer of a wholly foreign
defense article is not a controlled event, unless it is an export from,
or a temporary import into, the United States. This addition is for
clarification purposes only and reinforces that the transfer of a
wholly foreign defense article outside of the United States and not
otherwise subject to the ITAR does not require authorization.
Response to Comments
Two commenters noted the two proposed entries to ITAR Sec. 120.54
help clarify what activities are controlled events subject to the
ITAR's jurisdiction. Specifically, both commenters noted the two new
entries are appropriately narrow in construing events that are and are
not controlled in a manner consistent with U.S. national security
interests. One commenter expressed their agreement with proposed
paragraph (a)(6) but not paragraph (a)(7). The commenter specifically
stated paragraph (a)(7) ``says that foreign defense articles,
presumably meaning guns, ammunition, and other weapons, will not be
subject to the normal procedures of a controlled event. I disagree with
this because I believe controlling the flow of weapons is of the utmost
importance, and even if the weapons come from a partner country, they
deserve a certain level of scrutiny, even if it causes some frustration
from interested parties. . . .'' The Department notes paragraph (a)(7)
is an accurate reflection of the current jurisdiction of the ITAR,
which does not control transfers of foreign defense articles that
originally entered the United States and have since been exported from
the United States if the enumerated criteria in paragraph (a)(7)(i) to
paragraph (a)(7)(iii) are all met. Like foreign persons who generally
become subject to U.S. laws and regulations when they enter the United
States, foreign defense articles that enter the United States generally
become subject to U.S. laws and regulations, including the ITAR, while
in the United States. However, U.S. laws and regulations generally do
not govern the activities of foreign persons abroad. Similarly, foreign
defense articles that leave the United States are no longer subject to
the ITAR under the circumstances described in paragraph (a)(7). To help
illustrate this concept, the Department notes the following scenario--
U.S. Company A purchases a foreign defense article from Foreign Company
B located outside the United States. The purchased foreign defense
article is imported into the United States but U.S. Company A later
realizes it no longer needs the foreign defense article and obtains the
necessary DDTC authorization to export the foreign defense article back
to Foreign Company B. Foreign Company B does not subsequently need
further Department authorization to sell the returned foreign defense
article to a separate party, assuming the criteria in paragraph (a)(7)
are met. As a result, no change is being made to proposed paragraph
(a)(7) in response to this comment.
Several commenters expressed appreciation for the Department's
effort regarding new paragraph (a)(6). Specifically, these commenters
noted proposed paragraph (a)(6) provides ``positive assurance to [U.S.]
partner countries' armed forces'' of an understanding that was
previously ``only noted in DDTC's Guidelines for Preparing Agreements
document'' and applauded DDTC for making explicit in the regulations
DDTC's long-standing policy expressed in that document that
[[Page 66212]]
the taking of a defense article outside a previously approved country
by the armed forces of a foreign government or international
organization is not a controlled event, provided certain criteria are
met. One commenter noted that it would simplify the process their
country's armed forces must follow to take U.S. defense articles
outside a previously approved country during a deployment or on
exercises, while another expressed their belief that new paragraph
(a)(6) would enhance interoperability amongst allies.
However, one commenter suggested the language of paragraph (a)(6)
is too narrow and requested an expansion to enable other foreign or
U.S. parties to an agreement (who are not the armed forces of a foreign
government or United Nations personnel) to take defenses articles on
operations or deployments outside a previously approved country without
requesting additional authorization from the Department. The commenter
suggested a specific modification to the ``Deployment Clause'' language
included in DDTC's ``Guidelines for Preparing Agreements'' to implement
their suggestion. The Department emphasizes the goal of this rulemaking
is to memorialize long-standing Department polices that were specified
in the ``Guidelines for Preparing Agreements.'' Therefore, the
Department notes its purposeful limited intent for this rulemaking to
be applicable to activities of armed forces of a foreign government or
United Nations military personnel. In contrast, the Department assesses
that activities undertaken by other foreign or U.S. parties to an
agreement who are not the armed forces of a foreign country or United
Nations military personnel still warrant additional review and should
continue to require authorization from the Department in order to take
defenses articles outside a previously approved country. For these
reasons, the Department is not revising the text of proposed paragraph
(a)(6) in response to this comment.
Another commenter noted with respect to paragraph (a)(6) ``that the
proposed addition lacks any reference to related technical data.''
Specifically, the commenter explained that ``codifying the Department's
long-standing policy without an explicit reference to `related
technical data' might lead to confusion [as to] whether separate
authorization is required for the export, reexport, retransfer or
temporary import of technical data needed to operate the defense
article and/or generated by the defense article.'' Subsequently, the
commenter suggested adding ``and any related technical data'' to the
term ``defense article'' in ITAR Sec. 120.54(a)(6). The Department
notes, per ITAR Sec. 120.31, ``defense article'' means any item or
technical data designated in ITAR Sec. 121.1; therefore, the addition
of ``and any related technical data'' would be duplicative. For this
reason, the Department is not making the changes proposed by this
commenter.
As introduced above, one commenter requested that the Department
provide clarification that, as a result of this rulemaking, licenses
for temporary imports into the United States that meet the criteria of
ITAR Sec. 120.54(a)(6) are not required. The Department declines to
adopt this recommendation for the reasons previously expressed in this
preamble. Specifically, the Department wishes to stay within the intent
of this portion of the rule, which is to clarify long-standing policy
regarding reexports and retransfers outside of the United States of
properly authorized defense articles previously exported from the
United States and in the possession of the armed forces of a foreign
government or United Nations military personnel. The comment did,
however, bring to the attention of the Department the issues which led
to the inclusion of new paragraphs (a)(6)(iii) and (a)(7)(iii), as
discussed above. The commenter also recommended a revision to proposed
paragraph (a)(6) to enable the armed forces of a foreign government or
United Nations personnel to ``[share] equipment with foreign partners
that also have access to the same equipment, albeit via different
licenses and agreements'' during deployments and training exercises.
The Department notes that foreign partners who have access to the same
equipment via different licenses and agreements do not always have
access to the same configuration of the equipment and thus foreign
partners would not always have the ability to make an accurate
determination as to whether their specific defense article
configurations are the same. Therefore, the Department is not revising
the text of the proposed rule as suggested by the commenter.
The same commenter also requested revisions to proposed paragraph
(a)(6) to expand the entry to include third-party contractors in
addition to the armed forces of a foreign government and United Nations
personnel. The Department emphasizes that the goal of this rulemaking
is to memorialize long-standing Department polices that were
articulated in the ``Guidelines for Preparing Agreements.'' Therefore,
the Department notes its purposeful limited intent for this rulemaking
to apply only to the activities of the armed forces of a foreign
government or United Nations military personnel. In contrast,
activities undertaken by other foreign or U.S. persons who are not the
armed forces of a foreign country or United Nations military personnel
should continue to require additional authorization from the
Department. For these reasons, the Department is not making the changes
suggested by this commenter.
The same commenter also requested that ``end-use'' be removed from
proposed paragraph (a)(6)(ii) since Department export control licenses
and agreements do not often explicitly include ``use by a foreign
government (armed forces) for deployment or training exercise,'' even
though such activity is often an implied end-use. The position of the
Department is that the taking of a defense article subject to the
reexport or retransfer requirements of the ITAR on a deployment or
training exercise outside a previously approved country is not a change
in end-use if the enumerated criteria in ITAR Sec. 120.54(a)(6)(i)
through (iii) are met. This Department position is applicable even if
such deployments or training exercises are not explicitly included on a
license or agreement. For this reason, the Department is not revising
the text of the proposed rule as proposed by the commenter.
Regarding proposed paragraph (a)(7), the same commenter welcomed
this new entry. The commenter further requested the Department provide
clarification on several matters. First, the commenter requested
clarification as to whether a foreign defense article will become
subject to the ITAR's ``reexport/retransfer license obligations if it
had been modified, enhanced, upgraded or otherwise altered or improved
in a manner that changed the basic performance of the item but did not
have a U.S.-origin defense article incorporated while it is in the
United States.'' The Department confirms that in such a scenario the
foreign defense article will be subject to the ITAR and will require
reexport or retransfer authorizations for all subsequent transfers
after it leaves the United States.
The commenter also requested the Department provide ``a clear
threshold for activities undertaken whilst the wholly foreign defense
article is in the United States for controls to be triggered under ITAR
Sec. 120.54(a)(7)(i)'' and to provide guidance on the meaning of
``modified, enhanced, upgraded or otherwise altered or improved in a
manner that changed the basic performance.'' The Department does not
believe it needs to offer definitions of commonly used terms and
phrases such as ``modified,'' ``enhanced,'' ``upgraded''
[[Page 66213]]
or ``otherwise altered or improved.'' The regulated community should
apply the ordinary meaning of those words consistent with how it has
interpreted those terms as they already exist in the ITAR (e.g., ITAR
Sec. 123.4(b)).
Finally, the commenter also requested the Department put in place
``a mechanism in U.S. export licenses to indicate that a wholly foreign
defense article has been modified, enhanced, upgraded or otherwise
altered or improved in a manner that changed the basic performance of
the item.'' The commenter asserted that, if such a mechanism were not
put in place, ``that these changes [would] place the onus of
identifying whether controls apply on foreign recipients [which] may
lead to excessive and unnecessary licensing to avoid non-compliance.''
The Department notes that an authorization would be required for a
person modifying, enhancing, upgrading, or otherwise altering or
improving a foreign defense article while in the United States.
Therefore, the subsequent recipient of an altered or improved foreign
defense article should have clear notice of whether the criteria in
paragraph (a)(7)(i) are met. Consequently, the Department does not
envision any excessive or unnecessary licensing will occur because of
these changes. For this reason, the Department is not adopting the
commenter's recommendation.
One commenter requested that the Department provide additional
guidance regarding the word ``transported'' in paragraph (a)(6)(i).
Specifically, the commenter requested guidance or amendments to the
proposed rule that would enable transport of defense articles by third-
party contractors in addition to the armed forces of a foreign
government or United Nations personnel. The Department notes its
purposeful limited intent for this rulemaking to be applicable only to
the activities of the armed forces of a foreign government or United
Nations military personnel. In contrast, activities undertaken by other
foreign or U.S. parties to an agreement that are not the armed forces
of a foreign country or United Nations military personnel should
generally be reviewed on a case-by-case basis and continue to require
authorization from the Department. For this reason, the Department is
not revising the text of the proposed rule in response to the comment.
The same commenter expressed their support for proposed paragraph
(a)(7), noting that it is a ``welcome clarification over an issue that
has caused different risk-based approaches by [companies] over many
years.'' The commenter also requested the Department provide additional
guidance regarding when a foreign defense article is imported into the
United States for testing and how any generated test data should be
controlled. In addition, the commenter requested the Department provide
further clarification regarding how a foreign defense article that
contains U.S.-origin defense articles should be treated when undergoing
testing in a foreign country. The Department notes such requests are
outside the scope of this rulemaking. For this reason, the Department
is not revising the text of the proposed rule in response to this
comment.
Regulatory Analysis and Notices
Administrative Procedure Act
This rulemaking is exempt from the requirements of section 553 of
the Administrative Procedure Act (APA) as a military or foreign affairs
function of the United States. Without prejudice to this determination,
the Department elected to solicit comments on the proposed regulatory
changes and has responded to those comments in this final rule.
Regulatory Flexibility Act
Since this rule is exempt from the notice-and-comment rulemaking
provisions of 5 U.S.C. 553, it does not require analysis under the
Regulatory Flexibility Act.
Unfunded Mandates Reform Act of 1995
This rulemaking does not involve a mandate that will result in the
expenditure by state, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any year and it
will not significantly or uniquely affect small governments. Therefore,
no actions are deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Congressional Review Act
The Office of Management and Budget has determined that this
rulemaking is not a major rule within the definition of 5 U.S.C. 804.
Executive Orders 12372 and 13132
This rulemaking does not have sufficient federalism implications to
require consultations or warrant the preparation of a federalism
summary impact statement. The regulations implementing Executive Order
12372 regarding intergovernmental consultation on Federal programs and
activities do not apply to this rulemaking.
Executive Orders 12866, 13563, and 14094
Executive Orders 12866, as amended by Executive Orders 13563 and
14094, direct agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects; distributed
impacts; and equity). Because the scope of this rule does not impose
additional regulatory requirements or obligations, the Department
believes costs associated with this rule will be minimal. Although the
Department cannot determine based on available data how many fewer
licenses will be submitted as a result of this rule, the amendments to
the definition of activities that are not exports, reexports,
retransfers, or temporary imports will relieve licensing burdens.
Qualitatively, this rule should have significant benefits for industry.
The rule will provide more certainty and clarity by expressly stating
in regulatory text what was already in Guidelines published by the
Department. Additionally, it should have helpful impacts on our
nation's foreign policy, more clearly conveying that the Department
does not attempt to impose restrictions on other nations transporting
defense articles during deployments or training exercises to other
foreign countries. In turn, this may also encourage other nations to
purchase additional defense articles from U.S. industry. This rule is
consistent with Executive Order 13563, which emphasizes the importance
of quantifying both costs and benefits, of reducing cost, of
harmonizing rules, and of promoting flexibility. This rule has been
designated a ``significant regulatory action,'' although not
significant within the meaning of section 3(f)(1) of Executive Order
12866, by the Office of Information and Regulatory Affairs under
Executive Order 12866.
Executive Order 12988
The Department of State reviewed this rulemaking in light of
Executive Order 12988 to eliminate ambiguity, minimize litigation,
establish clear legal standards, and reduce burden.
Executive Order 13175
The Department of State determined that this rulemaking will not
have tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not preempt tribal law.
Accordingly,
[[Page 66214]]
Executive Order 13175 does not apply to this rulemaking.
Paperwork Reduction Act
This final rule does not impose or revise any new information
collections subject to 44 U.S.C. chapter 35.
List of Subjects in 22 CFR Part 120
Arms and munitions, Classified information, Exports.
For the reasons set forth above, the Department of State amends
title 22, chapter I, subchapter M, part 120 of the Code of Federal
Regulations as follows:
PART 120--PURPOSE AND DEFINITIONS
0
1. The authority citation for part 120 continues to read as follows:
Authority: 22 U.S.C. 2651a, 2752, 2753, 2776, 2778, 2779,
2779a, 2785, 2794, 2797; E.O. 13637, 78 FR 16129, 3 CFR, 2013 Comp.,
p. 223.
0
2. Amend Sec. 120.54 by:
0
a. Removing the period at the end of paragraph (a)(5)(v) and adding a
semicolon in its place; and
0
b. Adding paragraphs (a)(6) and (7).
The additions read as follows:
Sec. 120.54 Activities that are not exports, reexports, retransfers,
or temporary imports.
(a) * * *
(6) The taking of a defense article subject to the reexport or
retransfer requirements of this subchapter on a deployment or training
exercise outside a previously approved country, provided:
(i) There is no change in end-use or end-user with respect to the
defense article;
(ii) The defense article is transported by and remains in the
possession of the previously authorized armed forces of a foreign
government or United Nations military personnel; and
(iii) The defense article is not being exported from or temporarily
imported into the United States; and
(7) The transfer of a foreign defense article previously imported
into the United States that has since been exported from the United
States pursuant to a license or other approval under this subchapter,
provided:
(i) The foreign defense article was not modified, enhanced,
upgraded, or otherwise altered or improved in a manner that changed the
basic performance of the item prior to its return to the country from
which it was imported or a third country;
(ii) A U.S.-origin defense article was not incorporated into the
foreign defense article; and
(iii) The defense article is not being exported from or temporarily
imported into the United States.
* * * * *
Bonnie D. Jenkins,
Under Secretary, Arms Control and International Security, Department of
State.
[FR Doc. 2024-18249 Filed 8-14-24; 8:45 am]
BILLING CODE 4710-25-P | usgpo | 2024-10-08T13:26:20.493402 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-18249.htm"
} |
FR | FR-2024-08-15/2024-18040 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66214-66218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18040]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 917
[SATS No. KY-260-FOR; Docket ID: OSM-2018-0008; S1D1S SS08011000
SX064A000 245S180110; S2D2S SS08011000 SX064A000 24XS501520]
Kentucky Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment, with one exception.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving an amendment, with one exception, to the
Kentucky regulatory program (Kentucky program) under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA or the Act). We are
approving changes to statutory provisions that involve civil penalty
fund distributions, self-bonding, and major permit revisions related to
underground mining. We are not approving a provision that involves
civil penalty escrow accounts.
DATES: The rule is effective September 16, 2024.
FOR FURTHER INFORMATION CONTACT: Michael Castle, Field Office Director,
Lexington Field Office, Office of Surface Mining Reclamation and
Enforcement, Telephone: (859) 260-3900, email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Kentucky Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews
I. Background on the Kentucky Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its program includes, among other things, State laws and regulations
that govern surface coal mining and reclamation operations in
accordance with the Act and consistent with the Federal regulations.
See 30 U.S.C. 1253(a)(1) and (7). Based on these criteria, the
Secretary of the Interior conditionally approved the Kentucky program
effective May 18, 1982. You can find background information on the
Kentucky program, including the Secretary's findings, the disposition
of comments, and conditions of approval in the May 18, 1982, Federal
Register (47 FR 21434). You can also find later actions concerning
Kentucky's program and program amendments at 30 CFR 917.11, 917.12,
917.13, 917.15, 917.16, and 917.17. The regulatory authority in
Kentucky is the Kentucky Energy and Environment Cabinet, Department of
Natural Resources (herein referred to as the Cabinet).
II. Submission of the Amendment
By letter dated September 19, 2018 (Administrative Record Number
KY-2007-01), the Cabinet submitted an amendment to its program under
SMCRA (30 U.S.C. 1201 et seq.), docketed as KY-260-FOR. The amendment
seeks to revise the Kentucky Revised Statutes (KRS) to include
statutory changes that involve civil penalty escrow accounts, civil
penalty fund distributions, self-bonding, and major permit revisions
related to underground mining.
The General Assembly of the Commonwealth of Kentucky enacted
statutory changes through House Bill 261, which was signed by the
Governor on April 2, 2018, and became effective on July 14, 2018. See
2018 Ky. Acts ch. 85. These changes are codified at KRS Chapter 350,
Surface Coal Mining, sections 350.0301, 350.064, 350.070, 350.518, and
350.990. The Cabinet was not required to promulgate administrative
regulations as a result of the law.
We announced receipt of the proposed amendment in the May 10, 2019,
Federal Register (84 FR 20595) (Administrative Record No. KY-2007-17).
In the same document, we opened the public comment period and provided
an opportunity for a public hearing or meeting on these provisions. We
did not hold a public hearing or meeting because none was requested.
The public comment period ended on June 10, 2019. No public comments
were received.
III. OSMRE's Findings
The following are the findings we made concerning the amendment
under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We
are
[[Page 66215]]
approving the amendment as described below with the exception of
changes to KRS 350.0301. Any revisions that we do not specifically
discuss below concern non-substantive grammatical or editorial changes
and can be found in the full text of the program amendment available at
www.regulations.gov.
A. Civil Penalty Escrow Account, KRS 350.0301, Petition challenging
determination of cabinet--Conduct of hearings--Administrative
regulations--Secretary may designate deputy secretary to sign final
orders.
Kentucky seeks to revise KRS 350.0301(5) by removing language
requiring Kentucky's administrative regulations to include provisions
that: (1) require that operators place civil penalty funds in escrow
before a formal hearing on the amount of the assessment of the civil
penalties; and (2) allow Kentucky to waive the escrow requirement for
individuals who demonstrate with substantial evidence an inability to
pay the proposed civil penalty assessment into escrow.
OSMRE Finding: In 2005, the Supreme Court of Kentucky decided
Commonwealth of Kentucky Natural Resources and Environmental Protection
Cabinet v. Kentec Coal Co., Inc., 177 S.W.3d 718 (Ky. 2005), in which
the Court concluded that Kentucky's prepayment requirements, codified
at the time in the Kentucky Administrative Regulations at 405 KAR
7:092, were in violation of the due process and equal protection
clauses of the United States Constitution and section 2 of the Kentucky
Constitution, which prohibits arbitrary State action. In response to
the Court's decision, Kentucky first removed notice of its prepayment
requirements from two documents provided to operators, a Notice of
Assessment of Civil Penalties and a Penalty Assessment Conference
Officer's Report, and Kentucky added language to those documents making
clear that prepayment was no longer required to request a formal
administrative hearing. By letter dated March 28, 2006, Kentucky sent
us notice of these revisions, which we docketed as Program Amendment
No. KY-250-FOR and subsequently disapproved on September 18, 2006 (71
FR 54586).\1\
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\1\ In 2017, Kentucky removed the prepayment requirement from
405 KAR 7:092, see 43 Ky.R. 1876 (April 1, 2017), and subsequently
recodified this provision to 400 KAR 1:110, effective August 4,
2017.
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In our decision of September 18, 2006 (71 FR 54586), we concluded
that removing the requirement to place civil penalty funds in escrow
prior to a formal hearing on the assessment renders the program less
stringent than section 518(c) of SMCRA, 30 U.S.C. 1268, and less
effective than the Federal regulations at 30 CFR 845.19(a), and
therefore disapproved the amendment. As stated in that document, the
Supreme Court of Kentucky rulings notwithstanding, section 518(c) of
SMCRA and the Federal regulations require prepayment of a proposed
penalty if a hearing is requested. Section 518(c) of SMCRA states that
should the person charged with the penalty wish to contest the amount
of the penalty or the fact of the violation, that person must forward
the proposed amount of the penalty to the Secretary for placement into
an escrow account pending resolution of the contest. 30 U.S.C. 1268(c).
Section 518(c) further states that failure to forward the money
accordingly shall result in a waiver of all legal rights to contest the
violation or the amount of the penalty. Id. The Federal regulations
repeat this requirement, specifying that the petition and proposed
penalty amount must be submitted to the Office of Hearings and Appeals.
30 CFR 845.19(a). Federal courts of appeals have found these provisions
consistent with the due process and equal protection requirements of
the United States Constitution. See, e.g., Graham vs. Office of Surface
Mining, Reclamation and Enforcement, 722 F.2d 1106 (3d Cir. 1983).
Kentucky's proposed revision to KRS 350.0301 directly relates to
the same revisions that we disapproved on September 18, 2006, codified
at 30 CFR 917.12(f). Kentucky's further steps to remove the requirement
to prepay the assessed penalty into escrow when administrative hearing
is requested continues to render Kentucky's program less stringent that
section 518(c) of SMCRA and less effective than the Federal regulations
at 30 CFR 845.19(a), and therefore are not approved.
B. Self-Bonding--KRS 350.064, Reclamation bond to be filed by
applicant.
Kentucky seeks to revise KRS 350.064(2) by removing language that
allows self-bonding in the State. A self-bond is a bond of the
applicant and is backed only by the overall financial health of the
applicant, without separate surety or specific pledges of collateral.
In order to have qualified and received approval for self-bond in
Kentucky, the applicant must successfully demonstrate a history of
financial solvency and continuous operation and the existence of a
suitable agent to receive service of process.
OSMRE Finding: Section 509(c) of SMCRA, 30 U.S.C. 1259, and its
implementing regulations at 30 CFR 800.4(d), Regulatory Authority
Responsibilities; 30 CFR 800.5, Definitions; 30 CFR 800.12, Form of the
Performance Bond; and 30 CFR 800.23, Self-bonding, permit a regulatory
authority to accept different forms of performance bonds, including
self-bonds, as a mechanism to ensure that funds will be available to
complete the reclamation plan if the work has to be performed by the
regulatory authority in the event of a forfeiture. The regulatory
authority may accept a self-bond without separate surety when the
applicant demonstrates, to the satisfaction of the regulatory
authority, the existence of a suitable agent to receive service of
process and a history of financial solvency and continuous operation
sufficient for authorization to self-insure or bond such amount. Some
State regulatory programs have accepted self-bonds to guarantee
reclamation.
It is reasonable that Kentucky reconsider acceptance of this type
of performance bond as a reclamation guarantee. In fact, there are no
active self-bonds being held by Kentucky at this time. SMCRA and its
implementing regulations do not require that a regulatory authority
include a self-bond in their regulatory programs; therefore, we find
that the elimination of self-bonding in the Kentucky program renders
the program no less stringent than SMCRA and no less effective than the
Federal regulations, and we approve this change.
C. Permit Revisions--KRS 350.070, Permit revisions.
Kentucky seeks to revise KRS 350.070(1) by removing language that
requires an operator to submit a major permit revision application for
an extension of an underground mining area that is more than incidental
boundary revisions, but which does not include planned subsidence or
other new proposed surface disturbances. Kentucky also seeks to delete
subsection (6)(b), which defines the maximum number of acres for a
revision to be considered an incidental boundary revision involving
underground operations.
OSMRE Finding: Kentucky originally added the above requirement,
which we approved, through Kentucky House Bill 707 of 1994, enacted
1995 Ky. Acts ch. 301. See 60 FR 33110 (June 27, 1995). In our
approval, we explained that the Federal regulations do not require that
areas overlying proposed underground workings be included in the permit
area if no surface disturbance is planned. Id. At 33113. Therefore,
under those circumstances, where no surface disturbance is planned by
an extension
[[Page 66216]]
of the underground mining area, no permit revision is required.
For the same reason that we approved the inclusion of this
requirement in 1994, we approve its removal. Neither SMCRA nor the
Federal regulations require Kentucky to include those areas within the
permit area. Thus, this amendment does not render Kentucky's program
less stringent than SMCRA or less effective than the Federal
regulations at 30 CFR 774.13, Permit revisions, or 30 CFR part 784,
Underground Mining Permit Applications--Minimum Requirements for
Reclamation and Operation Plan.
D. Civil Penalty Funds and Distribution--KRS 350.518, [relating to
Kentucky's bond pool], and KRS 350.990, Penalties.
Kentucky seeks to delete KRS 350.518(11), which requires penalty
funds in excess of $800,000 in any fiscal year to be equally deposited
between: (a) the Kentucky Reclamation Guaranty Fund (KRGF), which
finances Kentucky's alternative bonding system, or bond pool; and (b)
the Abandoned Mine Land (AML) supplemental fund, which was established
under KRS 350.139 and consists primarily of interest generated on funds
derived from the forfeiture of conventional bonds, and which is to be
used to supplement forfeited conventional bonds that are inadequate to
complete the reclamation plan. In a complementary revision, Kentucky
seeks to delete similar language from KRS 350.990(1). KRS 350.990(1)
further directs that the money disbursed to the KRGF be used for the
purposes set forth in KRS 350.500-350.521 (relating to Kentucky's bond
pool) and KRS 350.595 (relating to Kentucky's Abandoned Mine Land
Enhancement Program, which provides partial bond coverage for eligible
remining operations), and that money disbursed to the AML supplemental
fund established under KRS 350.139(1) be used for the purposes of that
section. In place of these deleted allocations, Kentucky seeks to add
language to KRS 350.990(1) that directs that penalties in excess of
$800,000 in any fiscal year be deposited into the restricted fund
account of the Office of the Commissioner of the Department for Natural
Resources to be disbursed for the purposes set out in KRS chapters 350
(Surface Coal Mining), 351 (Department for Natural Resources), and 352
(Mining Regulations). KRS chapters 351 and 352 consist of Kentucky's
coal mine safety laws.
OSMRE Finding: We approved the provision to equally distribute
civil penalty funds in excess of $800,000 into two specific reclamation
funds in KY-218 on May 10, 2000 (65 FR 29949). At that time, civil
penalties collected in any fiscal year up to $800,000 were deposited
with the State Treasury to the credit of Kentucky's general fund, see
KRS 350.139, and any sums in excess of $800,000 were to go to the
Kentucky Bond Pool Fund (BPF) (the predecessor to the KRGF). From
there, one half of the excess would go to a new bond forfeiture
supplemental fund but only when the balance of the BPF was above the
maximum of the operating range necessary to ensure solvency ($16
million at the time). A review of the adequacy of the BPF was conducted
in 2011; the findings concluded that reclamation performance bonds were
not always sufficient to complete reclamation required in approved
permits. As a result, the program was amended by KY-256 on January 29,
2018 (83 FR 3948) to ensure bond amounts were adequate to complete
reclamation in the event of forfeiture. As part of that effort,
Kentucky eliminated the BPF and replaced it with the KRGF, which
carried greater safeguards, such as periodic actuarial studies to
determine the amount necessary to ensure its solvency. At the same
time, Kentucky removed the $16 million minimum balance and, instead,
required periodic actuarial studies in order to determine the necessary
balance of the KRGF.
In our 2000 approval, we noted that Kentucky was not diverting any
money away from the BPF except for proceeds in excess of the amount
necessary to guarantee its solvency. See 65 FR 29949 at 29950. In our
2018 approval, we noted that the safeguards provided in the KRGF ensure
the KRGF's solvency, and therefore removing the commitment of civil
penalty money to the KRGF to achieving a particular minimum balance was
not inconsistent with SMCRA or its implementing regulations. See 83 FR
3948 at 3953.
The Kentucky revisions described above broaden the potential uses
of civil penalty funds to any purposes set out in KRS chapters 350,
351, and 352, which would include the current purposes laid out for the
KRGF and the AML supplemental fund established under chapter 350.
Kentucky has the discretion to allocate its funds in a manner that
supports the objectives of its program. Unlike performance bond funds,
no Federal requirements exist that direct penalty funds be used for
reclamation. Our regulations at 30 CFR 845.21 explain our use of
Federal civil penalties for reclamation subject to Congressional
authorization; however, this provision was the result of a continuing
resolution by Congress in 1987, which, for the first time, authorized
us to use civil penalty money in this manner and was not part of the
broader SMCRA program required of the States. See 53 FR 16016 (May 4,
1988). Because, as was the case when we approved this requirement in
2000, neither SMCRA nor the Federal regulations require civil penalty
funds to be used on reclamation, Kentucky's program is not less
stringent than SMCRA or less effective than the Federal regulations at
30 CFR 845.21 by using these funds for other purposes; therefore, we
approve these revisions.
IV. Summary and Disposition of Comments
Public Comments
We solicited public comments and provided an opportunity for a
public hearing on the proposed amendment in the May 10, 2019, Federal
Register document announcing receipt of this amendment (84 FR 20595).
Because no one requested an opportunity to speak at a public hearing,
none was held. We did not receive any comments from the public.
Federal Agency Comments
On December 3, 2018, under 30 CFR 732.17(h)(11)(i) and section
503(b) of SMCRA, we requested comments on the amendment from various
Federal agencies with an actual or potential interest in the Kentucky
program (Administrative Record Nos. KY-2007-08, 09, 10, 11, 12, 13,
14). We did not receive any comments.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.). None of the revisions that Kentucky proposed to
make in this amendment pertain to air or water quality standards.
Therefore, we did not ask EPA to concur on the amendment. However, on
December 3, 2018, under 30 CFR 732.17(h)(11)(i), we requested comments
from the EPA on the amendment (Administrative Record No. KY-2007-09 and
10). We did not receive any comments from EPA.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and the ACHP on amendments
[[Page 66217]]
that may have an effect on historic properties. On December 3, 2018, we
requested comments on the amendment from the SHPO (Administrative
Record No. KY-2007-13) and the ACHP (Administrative Record No. KY-2007-
11). SHPO responded on December 26, 2018, that they had no comment as
the amendment is not likely to cause changes that could impact cultural
resources (Administrative Record No. KY-2007-16). We did not receive a
response from the ACHP.
V. OSMRE's Decision
Based on the above findings, we are approving Kentucky's amendment
submitted to OSMRE on September 19, 2018 (Administrative Record No. KY-
2007-01), with one exception. For the reasons stated above, removal of
the requirement for civil penalty funds to be placed in escrow before a
formal hearing is not approved, and therefore the requirement is not
eliminated from Kentucky's program.
To implement the approval of the remaining four provisions, we are
amending the Federal regulations at 30 CFR part 917 that codify
decisions concerning the Kentucky program. In accordance with the
Administrative Procedure Act (5 U.S.C. 500 et seq.), this rule will
take effect 30 days after the date of publication.
VI. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionality Protected Property Rights
This rule would not effect a taking of private property or
otherwise have taking implications that would result in private
property being taken for government use without just compensation under
the law. Therefore, a takings implication assessment is not required.
This determination is based on an analysis of the relevant Federal
regulations.
Executive Order 12866--Regulatory Planning and Review, Executive Order
13563--Improving Regulation and Regulatory Review, and Executive Order
14094--Modernizing Regulatory Review
Executive Order 12866, as amended by Executive Order 14094,
provides that the Office of Information and Regulatory Affairs in the
Office of Management and Budget (OMB) will review all significant
rules. Pursuant to OMB guidance, dated October 12, 1993 (OMB Memo M-94-
3), the approval of State program and/or plan amendments is exempted
from OMB review under Executive Order 12866, as amended by Executive
Order 14094. Executive Order 13563, which reaffirms and supplements
Executive Order 12866, retains this exemption.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by section 3(a) of Executive Order 12988. The Department has determined
that this Federal Register document meets the criteria of section 3 of
Executive Order 12988, which is intended to ensure that the agency
review its legislation and proposed regulations to eliminate drafting
errors and ambiguity; that the agency write its legislation and
regulations to minimize litigation; and that the agency's legislation
and regulations provide a clear legal standard for affected conduct
rather than a general standard, and promote simplification and burden
reduction. Because section 3 focuses on the quality of Federal
legislation and regulations, the Department limited its review under
this Executive order to the quality of this Federal Register document
and to changes to the Federal regulations. The review under this
Executive order does not extend to the language of the State regulatory
program or to the program amendment that the Commonwealth of Kentucky
drafted.
Executive Order 13132--Federalism
This rule has potential federalism implications as defined under
section 1(a) of Executive Order 13132, which directs agencies to
``grant the States the maximum administrative discretion possible''
with respect to Federal statutes and regulations administered by the
States. Kentucky, through its approved regulatory program, implements
and administers SMCRA and its implementing regulations at the State
level. This rule approves an amendment to the Kentucky program
submitted and drafted by the State and, thus, is consistent with the
direction to provide maximum administrative direction to States.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and Tribal sovereignty. We have evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175 and have determined that it has no substantial
direct effects on the distribution of power and responsibilities
between the Federal Government and Tribes. The basis for this
determination is that our decision on the Kentucky program does not
include Indian lands as defined by SMCRA or other Tribal lands and it
does not affect the regulation of activities on Indian lands or other
Tribal lands. Indian lands under SMCRA are regulated independently
under the applicable Federal Indian program. The Department's
consultation policy also acknowledges that our rules may have Tribal
implications where the State proposing the amendment encompasses
ancestral lands in areas with mineable coal. We are currently working
to identify and engage appropriate Tribal stakeholders to devise a
constructive approach for consulting on these amendments.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rulemaking that is (1) considered significant
under Executive Order 12866, and (2) likely to have a significant
adverse effect on the supply, distribution, or use of energy. Because
this rule is exempt from review under Executive Order 12866 and is not
significant energy action under the definition in Executive Order
13211, a Statement of Energy Effects is not required.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d), respectively) and the U.S. Department of the
Interior Departmental Manual, part 516, section 13.5(A), State program
amendments are not major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C).
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to the Office of
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.) is not required.
Regulatory Flexibility Act
This rule will not have a significant economic impact on a
substantial number of small entities under the
[[Page 66218]]
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal,
which is the subject of this rule, mostly reflects the State's policy
choices not required by or prohibited by Federal law. The part of this
rule disapproving one of the State's proposed revisions is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this part of the
rule would have a significant economic impact, the Department relied
upon the data and assumptions for the corresponding Federal
regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) does not
have an annual effect on the economy of $100 million; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based on an analysis of the State
submittal, which mostly reflects State policy choices not required by
or prohibited by Federal law. For the part of this rule disapproving
one of the State's proposed revisions, the determination is based on an
analysis of the corresponding Federal regulations, which were
determined not to constitute a major rule.
Unfunded Mandates Reform Act
This rule will not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. This determination
is based on an analysis of the State submittal, which mostly reflects
State policy choices not required by or prohibited by Federal law. For
the part of this rule disapproving one of the State's proposed
revisions, the determination is based on an analysis of the
corresponding Federal regulations, which were determined not to impose
an unfunded mandate. Therefore, a statement containing the information
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is
not required.
List of Subjects in 30 CFR Part 917
Intergovernmental relations, Surface mining, Underground mining.
Thomas D. Shope,
Regional Director, North Atlantic--Appalachian Region.
For the reasons set out in the preamble, the Office of Surface
Mining Reclamation and Enforcement amends 30 CFR part 917 as set forth
below:
PART 917--KENTUCKY
0
1. The authority citation for part 917 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 917.12 is amended by adding paragraph (i) to read as
follows:
Sec. 917.12 State regulatory program and proposed program amendment
provisions not approved.
* * * * *
(i) We are not approving revisions to KRS 350.0301 made by 2018 Ky.
Acts ch. 85 that would have eliminated a requirement that Kentucky
promulgate regulations providing that operators must place proposed
civil penalty assessments into an escrow account prior to a formal
hearing on the amount of the assessment.
0
3. Section 917.15 is amended by adding a new entry to the table in
paragraph (a) in chronological order by ``Date of Final Publication''
to read as follows:
Sec. 917.15 Approval of Kentucky regulatory program amendments.
(a) * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
September 19, 2018............ August 15, 2024.. KRS 350.064, KRS
350.070, KRS
350.518, and KRS
350.990.
------------------------------------------------------------------------
* * * * *
[FR Doc. 2024-18040 Filed 8-14-24; 8:45 am]
BILLING CODE 4310-05-P | usgpo | 2024-10-08T13:26:20.539146 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-18040.htm"
} |
FR | FR-2024-08-15/2024-18039 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66218-66223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18039]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 944
[SATS No. UT-048-FOR; Docket ID No. OSM-2012-0011; S1D1S SS08011000
SX064A000 245S180110; S2D2S SS08011000 SX064A000 24XS501520]
Utah Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are not approving the State of Utah's proposed amendment to
the Utah regulatory program (``the Utah program'') under the Surface
Mining Control and Reclamation Act of 1977 (``SMCRA'' or ``the Act'').
In May of 2011, an environmental advocacy group notified OSMRE that the
Utah legislature modified its Judicial Code of the Utah Code Annotated
by adding a new section that requires plaintiffs who seek an
administrative stay or preliminary injunction in an environmental
action to first post a surety bond or cash equivalent. After
determining that the legislative change would affect the implementation
of the Utah program, OSMRE notified the Utah Division of Oil, Gas and
Mining (``DOGM'' or ``the Division'') that the changes to the State law
must be submitted as a proposed Utah program amendment. DOGM
subsequently submitted this amendment proposing to incorporate
legislative changes made to the Utah program.
DATES: Effective September 16, 2024.
FOR FURTHER INFORMATION CONTACT:
Howard E. Strand, Manager, Denver Field Branch, Office of Surface
Mining Reclamation and Enforcement, One Denver Federal Center Building
41, Lakewood, Colorado 80225-0065.
[[Page 66219]]
Telephone: (303) 236-2931. Email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Utah Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews
I. Background on the Utah Program
Subject to OSMRE's oversight, sec. 503(a) of the Act permits a
State to assume primacy for the regulation of surface coal mining and
reclamation operations on non-Federal and non-Indian lands within its
borders by demonstrating that its program includes, among other things,
State laws and regulations that govern surface coal mining and
reclamation operations in accordance with the Act and consistent with
the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis
of these criteria, the Secretary of the Interior conditionally approved
the Utah program on January 21, 1981. You can find background
information on the Utah program, including the Secretary's findings,
the disposition of comments, and conditions of approval of the Utah
program in the January 21, 1981, Federal Register (46 FR 5899). You can
also find later actions concerning Utah's program and program
amendments at 30 CFR 944.15, 944.16, and 944.30.
II. Submission of the Amendment
The Governor of Utah signed H.B. 399 into law on March 21, 2011. On
May 16, 2011, OSMRE received a letter from an environmental advocacy
group notifying the agency of Utah's legislative changes under H.B. 399
(Administrative Record No. OSM-2012-0011-0010). That letter asserted
that H.B. 399 resulted in changes to Utah law that required OSMRE's
review and approval through the State program amendment process under
30 CFR part 732 before such legislative changes could become an
effective part of Utah's program.
In response to the citizen letter, OSMRE, in a letter dated August
8, 2011, requested that DOGM clarify whether the enactment of H.B. 399
resulted in a change to the Utah program (Administrative Record No.
OSM-2012-0011-0005). On October 31, 2011, DOGM provided a response to
OSMRE's request. In its response, DOGM explained that H.B. 399 modified
title 78 of the Utah Judicial Code (Administrative Record No. OSM-2012-
0011-0006). DOGM's letter also stated its uncertainty as to whether the
enactment of H.B. 399 represented a change in State law approved as
part of the Utah program, modified the rights of any party for judicial
review in a manner that would conflict with the requirements of 30 CFR
732.15, or was inconsistent with the Federal law (Administrative Record
No. OSM-2012-0011-0006). In a letter dated February 24, 2012, OSMRE
determined that a change of condition had occurred under 30 CFR
732.17(e)(2); therefore, OSMRE required DOGM to submit the legislative
changes as a proposed program amendment pursuant to 30 CFR 732.17(f)
(Administrative Record No. OSM-2012-0011-0007). DOGM submitted the
language of H.B. 399 as a State program amendment on April 18, 2012
(Administrative Record No. OSM-2012-0011-0003).
We announced receipt of the proposed amendment in the June 12,
2012, Federal Register (77 FR 34892). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the amendment (Administrative
Record No. OSM-2012-0011-0001). We did not hold a public hearing or
meeting because one was not requested. The public comment period ended
on July 12, 2012. We received three public comments and one comment
from a Federal agency.
III. OSMRE's Findings
The following are the findings we made concerning the proposed
amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and
732.17. As described below, we are not approving the amendment.
DOGM's proposed amendment seeks approval to apply the terms of H.B.
399 under Utah's Program. H.B. 399 modified, and was codified under,
title 78 of the Utah Judicial Code, Utah Code Ann. sec. 78B-5-828, and
applies to environmental actions. ``Environmental action'' is defined
as a cause of action filed on or after May 10, 2011, that seeks
judicial review of a final agency action to issue a permit. Utah Code
Ann. sec. 78B-5-828(b). This provision specifically applies to permits
issued by the Department of Transportation, the School and
Institutional Trust Lands Administration, or the Department of Natural
Resources (``DNR''), which includes DOGM's coal permitting actions
issued pursuant to Utah's program. Utah Code Ann. sec. 78B-5-
828(b)(ii)(A)-(C).
Under the proposed amendment incorporating the terms of H.B. 399, a
court or agency may not grant a plaintiff's request for temporary
relief (administrative stay or preliminary injunction) related to a
challenged State environmental permitting decision until the plaintiff
posts a surety bond or cash equivalent (herein referred to as a bond or
environmental litigation bond). Utah Code Ann. sec. 78B-5-828(3). This
bond would be imposed in an amount that either the reviewing agency or
court deems sufficient to compensate for damages the defendant may
sustain as a result of a stay or injunction later found to have been
unwarranted. Utah Code Ann. sec. 78B-5-828(3)(a). The bond is required
to be written by a surety licensed to do business within the State and
must be made payable to each defendant in the event the plaintiff does
not prevail on the merits of the environmental action. Utah Code Ann.
sec. 78B-5-828(3)(b)-(c) and (5). A reviewing agency or court decision
refusing to require the posting of a bond is immediately appealable.
Utah Code Ann. sec. 78B-5-828(6).
While the changes outlined in H.B. 399 (Utah Code Ann. sec. 78B-5-
828) apply to multiple State agencies, this final rule pertains only to
the application of Utah Code Ann. sec. 78B-5-828 to DOGM's coal
permitting actions issued pursuant to the approved Utah program under
SMCRA. Utah's program consists of the Utah Coal Mining and Reclamation
Act, Utah Code Ann. sec. 40-10-1 through 40-10-31, and the Utah
Administrative Code rules, R645-100 through -403. While DOGM's
submission does not amend the text of the already approved Utah
program, application of Utah Code Ann. sec. 78B-5-828 would markedly
alter implementation of the Utah program and render the program
inconsistent with, and less stringent and effective than, SMCRA and
Federal regulations. Both DOGM, which is responsible for administering
the Utah coal program under SMCRA, and the Board of Oil, Gas and Mining
(``the Board''), which is an administrative body with rulemaking and
adjudicatory responsibilities under Utah's coal program, are entities
within DNR and, therefore, are subject to the environmental litigation
bond requirement.
SMCRA sec. 503 provides that a State may assume primary
responsibility to regulate coal mining and reclamation operations
within its State borders. To obtain and maintain primacy under 30 CFR
730.5 and 732.15(a), a State regulatory authority must submit a State
program, or proposed amendments thereto, that contain requirements that
are consistent with, and no less stringent and effective than, SMCRA
and Federal regulations. As the proposed language from H.B. 399 applies
to administrative stays issued by a State agency and preliminary
injunctions granted by a court, SMCRA
[[Page 66220]]
requires that Utah's program must provide, at minimum, the same
opportunities for judicial review and citizen participation that are
available under SMCRA and the Federal regulations.
The approved Utah program is similar to SMCRA and the Federal
regulations regarding the available opportunities to seek temporary
relief during an administrative hearing or proceeding. After a permit
is issued, the Utah program, at Utah Code Ann. sec. 40-10-14(4) and
R645-300-212, provides that the Board may grant temporary relief it
deems appropriate pending final determination of the proceedings, in
accordance with SMCRA sec. 514(d) and 30 CFR 775.11(b). Both the Utah
and the Federal programs allow for an administrative hearing prior to
judicial review, which would be adjudicatory in nature, regarding the
agency's reasons for its permitting decision. The presiding authority
may grant temporary relief if the person requesting relief shows that
there is a substantial likelihood that they will prevail on the merits
of their case, among other criteria. See SMCRA sec. 514(d)(1)-(3) (30
U.S.C. 1264(d)(1)-(3); 30 CFR 775.11(b)(2)(i) through (iv); Utah Code
Ann. sec. 40-10-14(4)(a)-(c); and R645-300-212.220, 212.210-212.400.
The Utah program, similar to SMCRA and the Federal regulations, leaves
discretion to the deciding authority to grant temporary relief during
administrative review so long as the above-cited criteria for such
relief are satisfied. Neither SMCRA nor the approved Utah program
requires the posting of a bond prior to granting a request for
temporary relief during administrative review.
Both SMCRA, at sec. 526(e) (30 U.S.C. 1276(e)), and the Utah
program, at Utah Code Ann. sec. 40-10-30, establish that administrative
hearing decisions are subject to judicial review. Thus, an interested
person who participated in the administrative proceedings and is
aggrieved by the regulatory authority's decision is provided an
opportunity for appeal in a court of competent jurisdiction. SMCRA sec.
514(f) (30 U.S.C. 1264(f)); 30 CFR 775.13; Utah Code Ann. sec. 40-10-
14(6); and R645-300-221. As provided under the Utah Code, the Utah
Supreme Court has jurisdiction to review all final agency actions
resulting from formal adjudicative proceedings. Utah Code Ann. sec. 40-
10-14(6)(a); see also the Utah Administrative Procedures Act at Utah
Code Ann. sec. 63G-4-403 and 78A-3-102(6) (stating the Utah Supreme
Court ``shall comply with the requirements of Title 63G, Chapter 4,
Administrative Procedures Act, in its review of agency adjudicative
proceedings.''). Under the Utah Rules of Civil Procedure (``URCP''),
the Utah courts have authority to require that an applicant submit a
form of security to the court before it issues an order of injunction.
However, URCP rule 65A also allows the court to forgo the security
requirement if ``it appears that none of the parties will incur or
suffer costs, attorney fees or damage as the result of any wrongful
order or injunction, or . . . there exists some other substantial
reason for dispensing with the requirement of security.'' URCP 65A(c).
While the Federal Rules of Civil Procedure, at rule 65(c), generally
mandate that a court require the posting of a bond before issuing a
preliminary injunction in an amount the court deems proper to pay the
costs and damages sustained by any party found to have been wrongfully
enjoined or restrained, neither SMCRA sec. 525(c) (30 U.S.C. 1275(c))
nor sec. 526(c) (30 U.S.C. 1276(c)) contain such a mandate. Rather, the
conditions of any temporary relief ordered are reserved (not mandated)
to the discretion of the Secretary in administrative proceedings and to
the court in judicial proceedings.
In addition to the opportunities afforded to persons challenging a
final agency decision, citizen suits filed in court provide another
pathway for persons to challenge perceived violations of the Act,
including violations of any rule, regulation, order, or permit issued
pursuant to the Act or failure to perform a non-discretionary duty.
Under the State or Federal citizen suit provision, found at Utah Code
Ann. sec. 40-10-21 or SMCRA sec. 520 (30 U.S.C. 1270), an interested
person may commence a civil action against the United States or a State
agency to the extent permitted by the Eleventh Amendment, or against
any other person, to compel compliance with the corresponding State or
Federal Act. Utah Code Ann. sec. 40-10-21(4)(b) and SMCRA sec. 520(d)
(30 U.S.C. 1270(d)) both provide that, if a temporary restraining order
or preliminary injunction is sought through the course of a citizen
suit, a court ``may'' require the filing of a bond or equivalent
security in accordance with the applicable rules of civil procedure.
Thus, Utah's existing preliminary injunction standards are consistent
within the Utah program, at Utah Code Ann. sec. 40-10-14(5), the Utah
Administrative Procedures Act at Utah Code Ann. sec. 63G-4-404, and the
URCP at rule 65A. The provisions in H.B. 399 that would be implemented
under the proposed amendment appear somewhat duplicative of these pre-
existing provisions, but some of the other provisions in H.B. 399,
including the bond requirement, would cause confusion regarding the
appropriate temporary relief to apply with respect to decisions
involving coal permitting actions.
While Congress acknowledged a court's authority under SMCRA sec.
520(d) (30 U.S.C. 1270(d)) to require the posting of a bond, the
legislative history of this section explains that in drafting the
citizen suit provision, the Committee intended ``that the courts will
carefully consider the circumstances and probable outcome of litigation
in deciding whether to require a bond. This will minimize the
possibility that this section might be subject to misuse either by the
commencement of frivolous actions against environmentally sound
operations or as a substitute for other provisions of this bill which
impose more precise requirements for citizen participation in the
permit application and performance bond release proceedings.'' S. Rept.
95-128, 88 (May 10, 1977). Utah's approved program contains this
discretionary authority nearly verbatim at Utah Code Ann. sec. 40-10-
21(4)(b).
The Utah Code Ann. sec. 78B-5-828 enacted by the Utah legislature
as H.B. 399, and submitted by DOGM as a proposed program amendment, is
inconsistent with SMCRA's legislative history and would not provide a
plaintiff with the opportunities to seek temporary relief when compared
with SMCRA and the Federal regulations. The language of the proposed
provision would remove a judge's ability and discretion to consider
other factors or circumstances that may otherwise be taken into account
while deciding whether a bond must be posted and in what amount.
Indeed, the proposed amendment mandating imposition of a bond would
conflict with existing Utah law that was already approved as part of
Utah's program that makes a bond discretionary in judicial proceedings.
When deciding to grant or deny a preliminary injunction or
administrative stay, SMCRA and the approved Utah program provide the
deciding official with more flexibility. In enacting SMCRA, Congress
recognized that ``providing citizen access to administrative appellate
procedures and the courts is a practical and legitimate method of
assuring the regulatory authority's compliance with the requirements of
the Act.'' S. Rept. 95-128, 59 (May 10, 1977). The effect of the
proposed mandatory environmental
[[Page 66221]]
litigation bond requirement could create an undue financial burden on
plaintiffs and potentially deter citizens from bringing good faith
actions. This would be inconsistent with SMCRA's purpose to ``assure
that appropriate procedures are provided for the public participation
in the development, revision, and enforcement of regulations,
standards, reclamation plans, or programs established by the Secretary
or any State under this Act. . . .'' SMCRA sec. 102(i). Further, the
enactment of H.B. 399, codified as Utah Code Ann. sec. 78B-5-828, is
inconsistent with SMCRA's legislative intent that bonds be used on a
case-by-case basis as determined by a court.
While State laws may be more stringent than the Federal program,
State law cannot conflict with the stated purposes of SMCRA, and State
laws cannot provide less opportunities, including for citizen
participation, than established under SMCRA and the Federal
regulations. The proposed amendment is inconsistent with the
congressional intent of assuring public participation and legal access
for interested parties in agency decision-making. OSMRE thereby finds
that Utah's amendment proposal is inconsistent with, and less stringent
and effective than, SMCRA and the Federal regulations. Therefore, in
accordance with 30 CFR 732.15(a) and 732.17(h)(10), OSMRE is not
approving this amendment. As a result, the proposed amendment submitted
by the Division will not become an effective part of the Utah coal
mining regulatory program under SMCRA. OSMRE instructs the Division to
continue implementing the approved Utah program as it did prior to the
enactment of H.B. 399.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record Document ID No. OSM-2012-0011-0001) and received three
responses.
We received two public comment letters sent on behalf of Southern
Utah Wilderness Alliance (SUWA) and the Sierra Club dated,
respectively, June 1, 2012, and July 12, 2012 (Administrative Record ID
No. OSM-2012-0011-0013). Both of the letters recommended that OSMRE
disapprove the amendment on the basis that it is inconsistent with
SMCRA and other applicable Federal rules and that SUWA would be
personally harmed by it if approved.
Additionally, we received a comment letter from a private citizen
dated July 11, 2012 (Administrative Record ID No. OSM-2012-0011-0012).
The commenter also recommended that OSMRE not approve the amendment
because it would make environmental protection in the State of Utah
more difficult with regard to coal mining operations.
In response to the above comments, we acknowledge the concerns
expressed and refer the commenters to our findings in sec. III for a
detailed explanation as to why OSMRE is not approving Utah's proposed
amendment.
Federal Agency Comments
On May 1, 2012, under 30 CFR 732.17(h)(11)(i) and sec. 503(b) of
SMCRA, we requested comments on the amendment from various Federal
agencies with an actual or potential interest in the Utah program
(Administrative Record ID No. OSM-2012-0011-0011). We received comments
from one Federal Agency.
The Bureau of Land Management (BLM) commented in a letter dated May
11, 2012 (Administrative Record ID No. OSM-2012-0011-0008). The BLM
stated that it agreed that, due to the gravity of such granted requests
by judicial actions, the requirement for surety bonding or equivalent
provides necessary protection for the interest of all parties involved.
In response, and as discussed in sec. III above, the conditions of any
temporary relief ordered are reserved to the discretion of the
Secretary or the State's deciding official in administrative
proceedings, and to the court in judicial proceedings. Existing law
provides the deciding official with the necessary flexibility to
determine the appropriate conditions of any temporary relief on a case-
by-case basis, so long as the standards for such relief are satisfied.
Therefore, OSMRE does not approve the proposed amendment.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.). None of the revisions that Utah proposed to make
in this amendment pertains to air or water quality standards.
Therefore, we did not ask EPA to concur on the amendment.
State Historic Preservation Officer (SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On August 28, 2013, we requested comments from both
agencies relative to Utah's proposed amendment (Administrative Record
Document ID No. OSM-2012-0011-0011), but neither agency responded to
our request.
V. OSMRE's Decision
Based on the above findings, we do not approve Utah's submittal
sent to us on April 12, 2012. To implement this decision, we are
amending the Federal regulations at 30 CFR part 944, which codifies
decisions concerning the Utah program. In accordance with the
Administrative Procedure Act, this rule will take effect 30 days after
the date of publication.
VI. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not effect a taking of private property or
otherwise have taking implications that would result in public property
being taken for government use without just compensation under the law.
Therefore, a takings implication assessment is not required. This
determination is based on an analysis of the corresponding Federal
regulations.
Executive Order 12866--Regulatory Planning and Review, Executive Order
13563--Improving Regulation and Regulatory Review, and Executive Order
14094--Modernizing Regulatory Review
Executive Order 12866, as amended by Executive Order 14094,
provides that the Office of Information and Regulatory Affairs in the
Office of Management and Budget (OMB) will review all significant
rules. Pursuant to OMB guidance, dated October 12, 1993 (OMB Memo M-94-
3), the approval of State program amendments is exempted from OMB
review under Executive Order 12866, as amended by Executive Order
14094. Executive Order 13563, which reaffirms and supplements Executive
Order 12866, retains this exemption.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by sec. 3 of Executive Order 12988. The
[[Page 66222]]
Department has determined that this Federal Register document meets the
criteria of sec. 3 of Executive Order 12988, which is intended to
ensure that the agency review its legislation and proposed regulations
to eliminate drafting errors and ambiguity; that the agency write its
legislation and regulations to minimize litigation; and that the
agency's legislation and regulations provide a clear legal standard for
affected conduct rather than a general standard, and promote
simplification and burden reduction. Because sec. 3 focuses on the
quality of this Federal Register document and changes to the Federal
regulations, the review under this Executive order does not extend to
the language of the Utah program or to the program amendment that the
State of Utah submitted.
Executive Order 13132--Federalism
This rule has potential Federalism implications, as defined under
sec. 1(a) of Executive Order 13132. Executive Order 13132 directs
agencies to ``grant the States the maximum administrative discretion
possible'' with respect to Federal statutes and regulations
administered by the States. Utah, through its approved regulatory
program, implements and administers SMCRA and its implementing
regulations at the State level. This rule disapproves an amendment to
the Utah program submitted and drafted by the State, to ensure that the
State program is ``in accordance with'' the requirements of SMCRA and
``consistent with'' the regulations issued by the Secretary pursuant to
SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and Tribal sovereignty. We have evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175 and have determined that it has no substantial
direct effects on the distribution of power and responsibilities
between the Federal Government and Tribes. The basis for this
determination is that our decision on the Utah program does not include
Indian lands as defined by SMCRA or other Tribal lands and it does not
affect the regulation of activities on Indian lands or other Tribal
lands. Indian lands under SMCRA are regulated independently under the
applicable approved Federal Indian program. The Department's
consultation policy also acknowledges that our rules may have Tribal
implications where the State proposing the amendment encompasses
ancestral lands in areas with mineable coal. We are currently working
to identify and engage with appropriate Tribal stakeholders to devise a
constructive approach for consulting on these amendments.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rulemaking that is (1) considered significant
under Executive Order 12866, and (2) likely to have a significant
adverse effect on the supply, distribution, or use of energy. Because
this rule is exempt from review under Executive Order 12866 and is not
significant energy action under the definition in Executive Order
13211, a Statement of Energy Effects is not required.
National Environmental Policy Act (NEPA)
Consistent with sec. 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a)
and 1292(d), respectively) and the U.S. Department of the Interior
Departmental Manual, part 516, sec. 13.5(A), State program amendments
are not major Federal actions within the meaning of sec. 102(2)(C) of
NEPA (42 U.S.C. 4332(2)(C). Therefore, there is no need to prepare an
environmental assessment under NEPA.
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to the Office of
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.) is not required.
Regulatory Flexibility Act
This rule, which does not approve the State submittal, will not
alter the existing federally approved Utah program, and therefore this
rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.).
Small Business Regulatory Enforcement Fairness Act
This rule, which does not approve the State submittal because it
would be inconsistent with SMCRA and Federal regulation, does not
change the status quo of the existing approved Utah program or its
implementation under SMCRA, and this rule is not a major rule under 5
U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act.
This rule: (a) does not have an annual effect on the economy of $100
million; (b) will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions; and (c) does not have significant
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises. This determination is based on an analysis
of the corresponding Federal regulations, which were determined not to
constitute a major rule.
Unfunded Mandates Reform Act
This rule, which does not approve the State submittal because it
would be inconsistent with SMCRA and Federal regulation, does not
change the status quo of the existing approved Utah program or its
implementation under SMCRA, and, therefore, this rule does not impose
an unfunded mandate on State, local, or Tribal governments, or the
private sector of more than $100 million per year, nor does the rule
have a significant or unique effect on State, local, or Tribal
governments or the private sector. This determination is based on an
analysis of the corresponding Federal regulations, which were
determined not to impose an unfunded mandate. Therefore, a statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
List of Subjects in 30 CFR Part 944
Intergovernmental relations, Surface mining, Underground mining.
David A. Berry,
Regional Director, Interior Unified Regions 5, 7-11.
For the reasons set out in the preamble, the Office of Surface
Mining Reclamation and Enforcement amends 30 CFR part 944 as set forth
below:
PART 944--Utah
0
1. The authority citation for part 944 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Add Sec. 944.16 to read as follows:
[[Page 66223]]
Sec. 944.16 State regulatory program amendment provisions not
approved.
(a) The State of Utah submitted a proposed amendment to Utah's coal
regulatory program, by letter dated April 12, 2012. The State prepared
the proposed amendment in response to legislation (House Bill 399)
enacted by the Utah Legislature in 2011 (Utah Code Ann. sec. 78B-5-
828). The proposed amendment, which would require an environmental
litigation bond be posted by a plaintiff seeking an administrative stay
or a court-ordered injunction before any relief was granted, is not
approved.
(b) [Reserved]
[FR Doc. 2024-18039 Filed 8-14-24; 8:45 am]
BILLING CODE 4310-05-P | usgpo | 2024-10-08T13:26:20.574887 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-18039.htm"
} |
FR | FR-2024-08-15/2024-18205 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66223-66225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18205]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2024-0618]
RIN 1625-AA00
Safety Zone, Kahanamoku Beach, Honolulu, HI
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary safety zone for
certain waters of the Kahanamoku Beach. This action is necessary to
provide for the safety of life on these navigable waters near Honolulu,
HI, during a drone show display at various times on August 13 through
18, 2024. This rulemaking prohibits, during the enforcement periods,
persons and vessels from entering the safety zone unless authorized by
the Captain of the Port Sector Honolulu or a designated representative.
DATES: This rule is effective without actual notice from August 15,
2024 through 9:30 p.m. on August 18, 2024. For the purposes of
enforcement, actual notice will be used from 4:30 p.m. on August 13,
2024, until August 15, 2024.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2024-0618 in the search box and click ``Search.'' Next, in the Document
Type column, select ``Supporting & Related Material.''
FOR FURTHER INFORMATION CONTACT: If you have questions about this rule,
call or email Petty Officer Vivian S. Gonzalez, Waterway Management
Division, U.S. Coast Guard; telephone 808-522-8264, email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec. Section
U.S.C. United States Code
II. Background Information and Regulatory History
On June 21, 2024, an organization notified the Coast Guard that it
will be conducting a drone show display from 9 p.m. through 4:30 a.m.,
daily, on August 13 through 15, 2024 and from 6:30 p.m. to 9:30 p.m.,
daily, on August 15, 17, and 18, 2024. The drones are to be launched
from a nearby parking lot approximately 200 feet southwest of the
southwestern point of the Hilton Lagoon into the ``showbox'' located
between the following 4 coordinates: 21[deg]16'52.02'' N
157[deg]50'27.88'' W; 21[deg]16'44.24'' N 157[deg]50'29.67'' W;
21[deg]16'40.06'' N 157[deg]50'16.65'' W; and 21[deg]16'47.24'' N
157[deg]50'13.39'' W. In response, on July 17, 2024, the Coast Guard
published a notice of proposed rulemaking (NPRM) titled Safety Zone,
Kahanamoku Beach, Honolulu, HI (89 FR 58095), stating why the Coast
Guard issued the NPRM and invited comments on the proposed regulatory
action related to this drone show. The comment period ended August 1,
2024, and the Coast Guard received no comments.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Delaying the effective date of
this rule would be impracticable because prompt action is needed to
respond to the potential safety hazards associated with the 428 drones
flying overhead at a popular surfing spot in Waikiki.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034. The Captain of the Port Sector Honolulu (COTP) has determined
that potential hazards associated with the drone show to be used in
this display will be a safety concern for anyone within the safety
zone. The purpose of this rule is to ensure the safety of personnel,
vessels, and the marine environment within the navigable waters of the
safety zone before, during, and after the scheduled events.
IV. Discussion of Comments, Changes, and the Rule
As noted above, we received no comments on our NPRM published July
17, 2024. There are no changes in the regulatory text of this rule from
the proposed rule in the NPRM.
This rule establishes a safety zone from 9 p.m. on August 13
through 9:30 p.m. on August 18, 2024. The safety zone will be enforced
from 9 p.m. to 4:30 a.m., daily, on August 13, 2024, through August 15,
2024 and from 6:30 through 9:30 p.m., daily, on August 15, 17, and 18,
2024. The safety zone will cover all navigable waters located between
the following 4 coordinates: 21[deg]16'52.02'' N 157[deg]50'27.88'' W;
21[deg]16'44.24'' N 157[deg]50'29.67'' W; 21[deg]16'40.06'' N
157[deg]50'16.65'' W; and 21[deg]16'47.24'' N 157[deg]50'13.39'' W. The
duration of the zone is intended to ensure the safety of persons and
vessels and these navigable waters during the scheduled drone shows. No
vessel or person will be permitted to enter the safety zone without
obtaining permission from the COTP or a designated representative.
V. Regulatory Analyses
We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. This rule has not been designated a ``significant
regulatory action,'' under section 3(f) of Executive Order 12866, as
amended by Executive Order 14094 (Modernizing Regulatory Review).
Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB).
This regulatory action determination is based on the duration and
time-of-day of the safety zone. This safety zone will be of limited
duration to minimize any adverse impacts to persons and vessels who
would be in the area. Vessel traffic will only be restricted in the
limited access area while drones are in the air. Further, the Coast
Guard will issue Broadcast Notice to Mariners via VHF-FM Marine Channel
16 about the zone and persons or vessels desiring to enter the safety
zone may do so with permission from the COTP or a
[[Page 66224]]
Designated Representative. Advance public notifications will also be
made to local mariners through appropriate means, which may include
Local Notice to Mariners and Broadcast Notice to Mariners.
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard received no comments from the Small Business
Administration on this rulemaking. The Coast Guard certifies under 5
U.S.C. 605(b) that this rule will not have a significant economic
impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
V.A. above, this rule will not have a significant economic impact on
any vessel owner or operator because they are able to transit during
the periods of time the drones are not in-flight.
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
call or email the person listed in the FOR FURTHER INFORMATION CONTACT
section.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.
C. Collection of Information
This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
D. Federalism and Indian Tribal Governments
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
E. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or Tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
F. Environment
We have analyzed this rule under Department of Homeland Security
Directive 023-01, Rev. 1, associated implementing instructions, and
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast
Guard in complying with the National Environmental Policy Act of
1969(42 U.S.C. 4321-4370f), and have determined that this action is one
of a category of actions that do not individually or cumulatively have
a significant effect on the human environment. This proposed rule
involves a safety zone lasting 6 hours that would prohibit entry within
the ``showbox''. It is categorically excluded from further review under
paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-
01-001-01, Rev. 1. A Record of Environmental Consideration supporting
this determination is available in the docket. For instructions on
locating the docket, see the ADDRESSES section of this preamble.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to call or email the person listed in the FOR
FURTHER INFORMATION CONTACT section to coordinate protest activities so
that your message can be received without jeopardizing the safety or
security of people, places or vessels.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is
amending 33 CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 46 U.S.C. 70034; 33 CFR 1.05-1, 6.04-1, 6.04-6, and
160.5; Department of Homeland Security Delegation No. 00170.1,
Revision No. 01.3.
0
2. Add Sec. 165.T14-0618 to read as follows:
Sec. 165.T14-0618 Safety Zone, Kahanamoku Beach, Honolulu, HI.
(a) Location. The following area is a safety zone: All waters
offshore of Kahanamoku Beach, from surface to bottom, encompassed by a
line connecting the following points beginning at 21[deg]16'52.02'' N
157[deg]50'27.88'' W, thence to 21[deg]16'44.24'' N 157[deg]50'29.67''
W, thence to 21[deg]16'40.06'' N 157[deg]50'16.65'' W, thence to
21[deg]16'47.24'' N 157[deg]50'13.39'' W, back to the beginning point.
These coordinates are based on 1984 World Geodetic System (WGS 84).
(b) Definitions. As used in this section, designated representative
means a Coast Guard Patrol Commander, including a Coast Guard coxswain,
petty officer, or other officer operating a Coast Guard vessel and a
Federal, State, and local officer designated by or assisting the
Captain of the Port Sector Honolulu (COTP) in the enforcement of the
safety zone.
(c) Regulations. (1) Under the general safety zone regulations in
subpart C of this part, you may not enter the safety zone described in
paragraph (a) of this section unless authorized by the COTP or the
COTP's designated representative.
(2) To seek permission to enter, contact the COTP or the COTP's
[[Page 66225]]
representative by calling Sector Honolulu Command Center at 808-842-
2603. During the enforcement periods, all persons and vessels permitted
to enter the safety zone must comply with all lawful orders or
directions given to them by the COTP or the COTP's designated
representative.
(d) Enforcement periods. This section will be enforced from 9 p.m.
to 4:30 a.m., daily, on August 13, 2024, through August 15, 2024, and
from 6:30 to 9:30 p.m., daily, on August 15, 17, and 18, 2024.
Dated: August 8, 2024.
Aja L. Kirksey,
Captain, U.S. Coast Guard, Captain of the Port Sector Honolulu.
[FR Doc. 2024-18205 Filed 8-14-24; 8:45 am]
BILLING CODE 9110-04-P | usgpo | 2024-10-08T13:26:20.606154 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-18205.htm"
} |
FR | FR-2024-08-15/2024-17709 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66225-66232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17709]
=======================================================================
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DEPARTMENT OF EDUCATION
34 CFR Chapter VI
[ED-2024-OPE-0069]
Postsecondary Student Success Grant
AGENCY: Office of Postsecondary Education, Department of Education.
ACTION: Final priorities, requirements, definitions, and selection
criterion.
-----------------------------------------------------------------------
SUMMARY: The Department of Education (Department) issues priorities,
requirements, definitions, and a selection criterion for use in the
Postsecondary Student Success Grant (PSSG) program. The Department may
use one or more of these priorities, requirements, definitions, and
selection criterion for competitions in fiscal year (FY) 2024 and later
years. We intend for these priorities, requirements, definitions, and
selection criterion to support projects that equitably improve
postsecondary student outcomes, including retention, upward transfer,
and completions of value, by leveraging data and implementing, scaling,
and rigorously evaluating evidence-based activities to support data-
driven decisions and actions that lead to credentials that support
economic success and further education.
DATES: These priorities, requirements, definitions, and selection
criterion are effective September 16, 2024.
FOR FURTHER INFORMATION CONTACT: Nemeka Mason-Clercin, U.S. Department
of Education, 400 Maryland Avenue SW, 5th floor, Washington, DC 20202-
4260. Telephone: (202) 987-1340. Nalini Lamba-Nieves, U.S. Department
of Education, 400 Maryland Avenue SW, room 5C127, Washington, DC 20202-
4260. Telephone: (202) 453-7953. Email: [email protected].
If you are deaf, hard of hearing, or have a speech disability and
wish to access telecommunications relay services, please dial 7-1-1.
SUPPLEMENTARY INFORMATION: Purpose of Program: The purpose of the PSSG
program is to equitably improve postsecondary student outcomes,
including retention, upward transfer, and completions of value, by
leveraging data and implementing, scaling, and rigorously evaluating
evidence-based activities to support data-driven decisions and actions
that lead to credentials that support economic success and further
education.
Assistance Listing Number: 84.116M.
Program Authority: 20 U.S.C. 1138-1138d.
We published a notice of proposed priorities, requirements, and
definitions in the Federal Register on June 7, 2024 (89 FR 48517)
(NPP). That document contained background information and the
Department's reasons for proposing the particular priorities,
requirements, and definitions. There are several differences between
the proposed priorities, requirements, and definitions and these final
priorities, requirements, definitions, and selection criterion. They
include changing Proposed Priority 4 on using data for continuous
improvement to a selection criterion and adding examples of evaluation
strategies; revising the scaling requirements for the mid-phase and
expansion priorities; revising the definition of ``completions of
value''; and revising the examples of allowable uses of funds to
include using data to administer the program effectively at the
institution and/or State or system levels, capacity building, rigorous
evaluations, technology-assisted supports, tutoring and supplemental
instruction, peer mentoring, and support for students with
disabilities.
Public Comment: In response to our invitation in the NPP, 23
parties submitted comments on the proposed priorities, requirements,
and definitions. Generally, we do not address technical and other minor
changes, or suggested changes that the law does not authorize us to
make under applicable statutory authority. In addition, we do not
address general comments that raised concerns not directly related to
the proposed priorities, requirements, or definitions.
Analysis of Comments and Changes: An analysis of the comments and
of any changes in the priorities, requirements, and definitions since
publication of the NPP follows.
General Comments
Comments: Several commenters praised the Department for conducting
rulemaking for the PSSG program and for the proposed priorities,
requirements, and definitions. For example, several commenters
supported the Department's use of evidence standards within Proposed
Priorities 1, 2, and 3, and the use of completions of value. Other
commenters supported the Department's proposed uses of funds.
Discussion: We appreciate the support of the grant program and the
priorities, requirements, and definitions.
Changes: None.
Comments: Several commenters proposed recommendations for which
priorities and selection criteria from the NPP should be utilized in a
competition, how the selection criteria should be evaluated, what
information applicants should be provided, and other components of the
application process. Others suggested that we apply the requirements in
the recently updated Uniform Grants Guidance.
Discussion: The components of an individual application, including
which specific priorities to use, and the guidelines for the
application process are laid out in the notice inviting applications
that is developed for each competition and do not require additional
rulemaking for this grant program. The requirements from the new
Uniform Grants Guidance can be utilized without inclusion in the NFP
since they have already gone through rulemaking.
Changes: None.
Comments: One commenter criticized the priorities, stating that it
is discriminatory to focus on ``underserved students'' and that the
program lacks accountability measures to prevent misuse of the research
project support services for certain students and suggested that there
should be an opt-out provision for students.
Discussion: The PSSG program is designed to enable institutions to
implement evidence-based projects to support student success for a
targeted group of students who are underrepresented among college
completers. However, nothing in these priorities precludes applicants
from proposing to also serve students who are not included in the
definition of ``underserved students'' yet need additional support to
complete college. The program holds grantees accountable through, among
other things, monitoring of the grants, which includes requiring
grantees to report annually on program-specific performance measures.
Regarding the opt-out provisions,
[[Page 66226]]
institutions manage their own opt-in/opt-out policies with regard to
student participation in their grant-funded activities.
Changes: None.
Comments: Two commenters questioned the effectiveness of taking a
statistics-focused approach to improving student outcomes.
Discussion: Research demonstrates that data-informed decision-
making is an important component of a people-driven continuous
improvement process to improve student outcomes, which is the approach
promoted in this grant program.\1\
---------------------------------------------------------------------------
\1\ See, for example, Association of Governing Boards of
Universities and Colleges (2019). Innovation in Higher Education: A
Case Study of Georgia State University. Washington, DC. Retrieved
from: https://agb.org/wp-content/uploads/2019/01/case_study_innovation_georgia.pdf; and Gagliardi, J., Parnell, A.,
and Carpenter-Hubin, J. (Eds). (2018). The Analytics Revolution in
Higher Education: Big Data, Organizational Learning, and Student
Success. Routledge.
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter expressed concern about the privacy of
student data.
Discussion: The Department does not collect individual-level data
for the PSSG program. Institutions that use student-level data to
support individuals through to completion must comply with the Family
Educational Rights and Privacy Act (FERPA) (20 U.S.C. 1232g; 34 CFR
part 99).
Changes: None.
Comments: One commenter suggested that the priorities and
requirements be used to collect enrollment and persistence data on
students with disabilities.
Discussion: Under the final selection criterion under which
applicants will identify or describe how they will develop performance
and outcome measures, applicants will also describe how they will
disaggregate data by student subgroups, which may include students with
disabilities if relevant to the project. In addition, under Priorities
1, 2, and 3, projects must be focused on improving outcomes for
underserved students, which may include students with disabilities.
Nothing in the proposed requirement regarding allowable use of funds
precluded support for students with disabilities, but we are explicitly
adding it to the list of examples to underscore the importance of
supporting this population.
Changes: We have added support for students with disabilities as an
explicit allowable student success strategy in the allowable uses of
funds requirement.
Priorities
Comment: One commenter suggested that the Department consider
whether the programs in which students are being retained or to which
they are transferring meet the value threshold in the definition of
``completions of value.''
Discussion: The Department does not have the capacity to apply the
value measure at the program level, and PSSG currently is not targeted
at the program level. However, we recognize the importance of not
limiting this measure to completion. Accordingly, we are revising the
definition of ``completions of value'' to also address retention and
transfer outcomes. In responding to Priorities 1, 2, and 3, applicants
will be expected to demonstrate how their proposed projects will
improve postsecondary success for underserved students by increasing
completions of value that lead to further education through upward
transfer or graduate education and/or lead to economic mobility.
Changes: We added to the definition of ``completions of value''
that students must be retained at and/or transfer to institutions
conferring completions of value.
Comments: One commenter suggested we retain the focus of the PSSG
program on degree completion, rather than establish a new definition of
``completions of value,'' because they claimed it would be burdensome
to the grant application and administration processes for the applicant
to demonstrate post-completion return on investment due to limited
available data.
Discussion: The Department intends to use existing College
Scorecard data and generate additional College Scorecard measures
related to completions of value that institutions can use as part of
their reporting on this metric for PSSG, since we recognize that it is
difficult for some institutions to obtain earnings data.
Changes: None.
Comments: Three commenters suggested that the Department adopt a
selection criterion regarding data collection and continuous
improvement processes at the institution after the grant period, rather
than address the topic through a priority. Another commenter suggested
we add examples of evaluation strategies to this priority that include
rapid-cycle experimentation, pilots, feasibility studies, and
implementation research.
Discussion: We agree with the commenters about the importance of
this component to this grant program and believe that if we address it
through a selection criterion instead of a priority, it will
incentivize more applicants to develop robust data collection and
continuous improvement strategies, since it will be factored into the
scores of all applicants. While all of the evaluation strategies the
commenter mentions are already allowable, we have added them as
examples to make it clear for future applicants.
Changes: We have changed Proposed Priority 4 to a selection
criterion and added examples of evaluation strategies.
Comments: One commenter suggested that we eliminate Proposed
Priority 5, stating that the grant awards should not be selected based
on specific strategies to improve retention and completion, and another
commenter requested that we keep it. One commenter suggested we include
it as an allowable use of funds instead of a priority. Finally, one
commenter praised the Department for including this priority but
suggested that we add experiential learning in addition to credentials
of value.
Discussion: We believe that college-to-career pathways and supports
are a critical component of student success, and therefore are
retaining this as a priority. We agree with the commenter about the
important role experiential learning can play, especially for adult
learners with some college but no credential, and added language to the
priority to reflect this.
Changes: We have added language to Proposed Priority 5 to indicate
that participating in experiential learning can be part of a college-
to-career pathway.
Comment: In response to our request in the NPP for feedback on the
proposed scale requirements for the mid-phase and expansion tiers of
evidence, we received numerous comments with recommendations. A common
theme among the commenters was to suggest that we eliminate the use of
specific numbers of students required in order to demonstrate scale or,
if maintained, lower the number to 350 from EDGAR's current definitions
of ``strong evidence'' and ``moderate evidence.'' In lieu of using
population metrics, commenters had several suggestions, including
utilizing the rigor of evaluations, the caliber of the research, the
reasonableness of the costs, the strategy to effectively scale, and the
impacts on college completion--specifically to advance equity or
participant outcomes. One commenter suggested that we use, instead of
the proposed scale requirements for the mid-phase and expansion tiers
of evidence, a three-part requirement for each grant type that would
include requiring all mid-phase
[[Page 66227]]
and expansion grant applicants to demonstrate they will be able to
conduct a well-powered study with the number of students they propose
to serve; meet the minimum standard for studies that meet the
definition of ``moderate evidence'' or ``strong evidence,'' which is
350 students; and implement the intervention at multiple sites with
mid-phase grants implemented at multiple campuses and expansion grants
implemented either at multiple institutions or multiple campuses, where
the campuses serve different types of underserved students or in
different locales.
Discussion: We agree with the comments on aligning the scale and
multisite requirements with the What Works Clearinghouse (WWC)
guidelines defined in EDGAR given one of the stated goals of the
program is to generate quality evidence about what works to improve
postsecondary student success. Because the WWC guidelines for
``moderate evidence'' and ``strong evidence'' do not differ in the
required number of sites or scale, we changed the priority language so
that the requirements for mid-phase and expansion projects do not
include a specific number of students, and we do not differentiate in
the number of sites or students required for moderate and strong
evidence. We also agree with the comments on ensuring the projects
demonstrate positive impact on underserved populations to align with
the goal of the program to equitably improve outcomes.
Changes: For mid-phase projects, we have changed the priority to
provide that projects must be implemented at multiple institutions of
higher education or multiple campuses of the same institution and be
intentionally designed to detect the impact of the project, if any, on
all students served by the project as well as on at least one
population of underserved students (as defined in this document) or
between institutions of different locales. For expansion projects, we
have changed the priority to provide that projects must be implemented
at multiple institutions of higher education and be intentionally
designed to detect the impact of the project, if any, on all students
served by the project as well as on at least one population of
underserved students (as defined in this notice) or between
institutions of different locales.
Comments: One commenter suggested adding a priority for projects at
lower-resourced institutions serving a significant population of high-
need students and with low completion rates or large completion
disparities.
Discussion: We agree with the commenter that projects should be at
institutions that are lower-resourced and have a significant population
of underserved students and completion disparities. That is why the
eligibility is targeted to title III and V institutions, which are
generally under-resourced institutions with a disproportionate
enrollment of students from groups who are underrepresented among
college completers, such as students from low-income backgrounds.
Changes: None.
Requirements
Comments: Numerous commenters suggested we add to the list of
allowable uses of funds. Recommendations included adding capacity-
building, the costs of rigorous evaluation, data to administer the
program, development and use of data systems to leverage integrated
data systems, data systems, data capacity support, professional
development resources for data and institutional effectiveness
researchers, credit for prior learning, adaptive courseware, hybrid-
flex courses, peer mentoring strategies, supplemental instruction,
mental health, basic needs, and the integration of academic coursework
and career advising.
Discussion: We agree with the commenters that all of these are
allowable uses. While the list provided in the proposed requirement is
not comprehensive, several of the suggested uses are critical
components for the PSSG program, so we have added to the list of
examples. The list in the proposed requirement included several
allowable uses to support Proposed Priority 5, including integrated
career planning, counseling, and coaching, work-based learning
opportunities, and college-to-career navigation support, so we do not
think other examples regarding the integration of academic coursework
and career advising are needed. It also already included basic needs
and mental health uses. Developing and using data systems is already
included as an allowable use and the approaches to do so are not
limited by the current language.
Changes: We have added using data to administer the program
effectively at the institution and/or State or system levels, capacity
building, and rigorous evaluation to the list of examples of allowable
uses of funds. We also have added technology-assisted supports,
tutoring and supplemental instruction, and peer mentoring as examples
of allowable uses of funds for student success strategies.
Comments: One commenter suggested that we provide that if a grantee
uses funds to include financial assistance as a component of their
project, they must propose to use at least one additional allowable
component in conjunction with the financial assistance.
Discussion: The Department does not believe such a stipulation
necessary. As a tiered evidence program, PSSG is designed to allow the
available evidence of what works in improving postsecondary student
outcomes to guide applicants in designing their proposed activities.
The Department also believes that applicants are in the best position
to determine what uses of funds would best serve to improve their
students' postsecondary outcomes. Under each of the priorities,
successful applicants will identify the key project components based on
their review of the studies they cite as evidence for their projects.
The applicant must develop a project that meets the goals of the
program as laid out in the priorities but can do so by selecting the
tools that they choose.
Changes: None.
Comments: One commenter suggested adding language to the
independent evaluation requirement to ensure that the evaluations are
``well-designed, well-implemented, and sufficiently powered'' to meet
WWC standards for ``moderate evidence'' or ``strong evidence.''
Discussion: The Department agrees that the evaluation of these
projects should be well-designed, well-executed, and sufficiently
powered to yield credible results. We will use selection criteria to
ensure that projects include a plan to conduct evaluations that are
intentionally designed to meet WWC standards (with or without
reservations). As part of the selection process, WWC-certified peer
reviewers will assess the rigor of the evaluation plans. Accordingly,
it would be redundant to also address this area of focus in the
independent evaluation requirement.
Changes: None.
Comments: While praising the requirement that evaluations be posted
to ERIC, two commenters suggested that the Department not put the
burden on the grantee to submit the evaluations to ERIC. Instead, they
suggested that grantees submit the evaluation reports to the Department
within one month of completion and the Department post this information
to the Awards page.
Discussion: We disagree with the commenters that requiring the
grantee to submit evaluations to ERIC would be burdensome. We agree
that it is critical to make sure the evaluations are transparent and
made public. We intend
[[Page 66228]]
to share the evaluations publicly on the Department's website.
Changes: None.
Comments: Several commenters submitted recommendations for the
requirements of evaluations that are submitted, including that they use
the most updated version of the WWC Handbook; that the evaluations of
early-phase projects be designed to meet WWC standards with or without
reservations and that the evaluations of mid-phase and expansion grants
be designed to meet WWC standards without reservations; that
evaluations have methodologies appropriate to the research question
being studied; and that the Department provide institutions with clear
guidance on how to submit a relevant study for review to determine if a
study meets WWC standards, including that the institutions have an
equitable opportunity to compete at the expansion phase without being
limited based on studies that are readily accessible in WWC.
Discussion: We appreciate the suggestions to ensure that the
evaluation methods are all evidence based and high quality. These
recommendations do not require rulemaking for this grant program and
would be considered in the application and peer review process.
Changes: None.
Comments: Two commenters recommended not restricting the indirect
cost rate.
Discussion: The Department maintains limiting the indirect cost
reimbursement to 8 percent of a modified total direct cost base. The
Department continues to believe that this limitation effectively
maximizes the Federal resources that support direct costs associated
with the project.
Changes: None.
Comments: Several commenters had recommendations for the types of
entities that would be eligible for the grant. Four commenters
suggested that eligibility not be limited to institutions that are
designated as a title III or V school, including one suggestion that
public two-year community and technical colleges be added. Two
commenters suggested allowing non-profit organizations to be an
eligible entity alone, rather than requiring a partnership with a title
III or V institution, and another commenter suggested that we require
the institution to be the lead applicant. A couple commenters supported
allowing non-profits to apply in partnership with title III or V
institutions. One commenter asked that businesses be able to partner
with institutions, and one commenter asked that for-profit institutions
be prohibited from applying.
Discussion: The Department believes that targeting funding to title
III and V institutions is the best use of the available funds because
these institutions disproportionately enroll students from groups who
are underrepresented among college completers, such as students from
low-income backgrounds. Supporting retention and completion strategies
at these institutions offers the greatest potential to close gaps in
postsecondary outcomes. Additionally, these under-resourced
institutions are most in need of Federal assistance to implement and
evaluate evidence-based postsecondary college retention and completion
interventions. More than half of public two-year institutions are title
III/V eligible and would be eligible for a grant. Under the eligibility
requirement, non-profits may apply for the funding, as long as they do
so in partnership with an institution of higher education. It does not
matter which entity is the lead applicant since all entities applying
through the partnership are subject to the same ``Group Application''
requirements under 34 CFR 75.127-129. Given that the innovation would
need to occur at an institution, we do not believe it is workable to
allow a non-profit to apply without partnership with an institution of
higher education. Furthermore, there is nothing that currently
prohibits eligible applicants from collaborating with businesses, and
for-profit institutions are not eligible institutions.
Changes: None.
Comments: One commenter suggested that we specifically include
Hispanic-serving institutions (HSIs) as eligible entities.
Discussion: HSIs are eligible as title III/title V institutions.
Changes: None.
Comments: None.
Discussion: In Proposed Requirement 3, we specified certain
circumstances under which the Secretary may waive the matching
requirement on a case-by-case basis based on certain showings by the
``lead applicant.''
Changes: We have revised Requirement 3, section (b) Waiver
Authority, to clarify that data showing certain exceptional
circumstances should pertain to the ``eligible institution(s)'' instead
of the lead applicant in order to address circumstances where certain
eligible entities apply in partnership with title III or V
institutions.
Definitions
Comments: Two commenters suggested changes to the definition of
``completions of value.'' One commenter suggested we use Threshold 0
from the Postsecondary Value Commission framework, and another
commenter suggested we incorporate local workforce data.
Discussion: Our proposed definition aligns with the Postsecondary
Value Commission framework by measuring the percentage of students
earning enough to recoup their costs and experience an earnings premium
over high school graduates, and adds the percentage of students
pursuing further education. We recognize the importance of not
comparing schools nationally on earnings and so our definition also
utilizes State-level high school earnings data. The Department does not
have the capacity to factor in local workforce data.
Changes: We adjusted the definition to clarify how the percentage
of students is calculated and how State earnings data is used in the
construction of the metric.
Comments: One commenter suggested that in the definition of
``underserved student,'' we include a more detailed description of
``student of color'' to align with the Office of Management and Budget
(OMB)'s Race and Ethnicity Standards.
Discussion: The term ``student of color'' is undefined, consistent
with the Secretary's Supplemental Priorities, to ensure consistency
across the Department's discretionary grant programs and to allow
institutions to define the term in a manner they choose, to be
consistent with how they do so internally for other purposes.
Changes: None.
Final Priorities
The Secretary establishes the following priorities for use in the
PSSG Program.
Priority 1--Early Phase.
Projects that are designed to improve postsecondary success for
underserved students by increasing completions of value that lead to
further education through upward transfer or graduate education and/or
lead to economic mobility, and are supported by evidence that meets the
definition of Demonstrates a Rationale (as defined in 34 CFR 77.1) or
Promising Evidence (as defined in 34 CFR 77.1).
Priority 2--Mid-Phase: Projects Supported by Moderate Evidence.
Projects that are designed to improve postsecondary success for
underserved students by increasing completions of value that lead to
further education through upward transfer or graduate education and/or
lead to economic mobility, and are supported by evidence that meets the
definition of Moderate
[[Page 66229]]
Evidence (as defined in 34 CFR 77.1). Projects under this priority must
be implemented at multiple institutions of higher education or multiple
campuses of the same institution and be intentionally designed to
detect the impact of the project, if any, on all students participating
in the project as well as on at least one population of underserved
students or between institutions of different locales.
Priority 3--Expansion: Projects Supported by Strong Evidence.
Projects that are designed to improve postsecondary success for
underserved students by increasing completions of value that lead to
further education through upward transfer or graduate education and/or
lead to economic mobility, and are supported by evidence that meets the
definition of Strong Evidence (as defined in 34 CFR 77.1). Projects
under this priority must be implemented at multiple institutions of
higher education and be intentionally designed to detect the impact of
the project, if any, on all students participating in the project as
well as on at least one population of underserved students or between
institutions of different locales.
Priority 4--Projects That Support College-to-Career Pathways and
Supports.
Projects that propose to build upon demonstrated progress toward
integrating, or that propose a plan to integrate, career-connected
learning and advising support into their postsecondary success
strategies, which may include participation in experiential learning,
to ensure students earn completions of value that lead to economic
success and/or further education. Projects may include aligning
academic coursework with career pathways and outcomes; developing and
implementing program-level credential maps to create college-to-career
pathways, including across institutions via transfer; integrating
career planning, counseling, and coaching into holistic advising
support; offering work-based learning opportunities aligned with
students' programs of study; and providing navigation support to help
graduates transition from college to career.
Types of Priorities
When inviting applications for a competition using one or more
priorities, we designate the type of each priority as absolute,
competitive preference, or invitational through a notice in the Federal
Register. The effect of each type of priority follows:
Absolute priority: Under an absolute priority, we consider only
applications that meet the priority (34 CFR 75.105(c)(3)).
Competitive preference priority: Under a competitive preference
priority, we give competitive preference to an application by (1)
awarding additional points, depending on the extent to which the
application meets the priority (34 CFR 75.105(c)(2)(i)); or (2)
selecting an application that meets the priority over an application of
comparable merit that does not meet the priority (34 CFR
75.105(c)(2)(ii)).
Invitational priority: Under an invitational priority, we are
particularly interested in applications that meet the priority.
However, we do not give an application that meets the priority a
preference over other applications (34 CFR 75.105(c)(1)).
Final Requirements
The Secretary establishes the following requirements for use in the
PSSG Program.
Requirement 1: Uses of Funds.
Program funds must be used for one or more of the following
allowable uses of funds:
(a) Developing and using data systems, tools, and training to
implement data-driven processes and interventions as part of a
comprehensive continuous improvement effort, as well as to administer
the program effectively at the institution and/or State or system
levels;
(b) Implementing student success strategies, including but not
limited to whole-college improvement models; course redesign to
implement co-requisite remediation or career-connected math pathways
including through use of technology-assisted supports; tutoring and
supplemental instruction; intensive, integrated advising models
including program maps with progress checks, case management
approaches, coaching, and peer mentoring; financial support, including
need-based aid, emergency aid, and basic needs and behavioral health
support and services; transfer support (as applicable), including four-
year transfer maps, co-enrollment and co-advising across institutions,
and regional transfer partnerships; support for students with
disabilities; career support, including integrated career planning,
counseling, and coaching, work-based learning opportunities, and
college-to-career navigation support; or other evidence-based student
success strategies and capacity building to implement student success
strategies; and
(c) Providing for rigorous evaluation of the program interventions.
Requirement 2: Indirect Cost Rate Information.
A grantee's indirect cost reimbursement is limited to eight percent
of a modified total direct cost base. For more information regarding
indirect costs, or to obtain a negotiated indirect cost rate, please
see www.ed.gov/about/offices/list/ocfo/intro.html.
Requirement 3: Matching Requirements and Exceptions.
(a) Matching Requirement. Grantees must provide a ten percent
match, which may include in-kind donations.
(b) Waiver Authority. The Secretary may waive the matching
requirement on a case-by-case basis upon a showing of any of the
following exceptional circumstances:
(1) The difficulty of raising matching funds for a program to serve
an area with high rates of poverty in the eligible institution(s)'
geographic location(s), defined as a Census tract, a set of contiguous
Census tracts, an American Indian Reservation, Oklahoma Tribal
Statistical Area (as defined by the U.S. Census Bureau), Alaska Native
Village Statistical Area or Alaska Native Regional Corporation Area,
Native Hawaiian Homeland Area, or other Tribal land or county that has
a poverty rate of at least 25 percent as determined every 5 years using
American Community Survey 5-Year data;
(2) Serving a significant population of students from low-income
backgrounds at the eligible institution(s)' location(s), defined as at
least 50 percent (or the eligibility threshold for the appropriate
institutional sector available at https://www2.ed.gov/about/offices/list/ope/idues/eligibility.html#app) of degree-seeking enrolled
students receiving need-based grant aid under title IV of the Higher
Education Act of 1965, as amended (HEA); or
(3) Significant economic hardship as demonstrated by low average
educational and general expenditures per full-time equivalent
undergraduate student at the eligible institution(s)' location(s), in
comparison with the average educational and general expenditures per
full-time equivalent undergraduate student of institutions that offer
similar instruction without need of a waiver, as determined by the
Secretary in accordance with the annual process of designation of title
III and title V institutions.
Requirement 4: Limitation on Grant Awards.
The Department will make awards to only applicants that are not the
individual or lead applicant in a current active grant from the PSSG
program.
[[Page 66230]]
Requirement 5: Supplement-not-Supplant.
Grant funds must be used so that they supplement and, to the extent
practical, increase the funds that would otherwise be available for the
activities to be carried out under the grant and in no case supplant
those funds.
Requirement 6: Independent Evaluation.
Grantees must conduct an independent evaluation of the
effectiveness of the project and submit the evaluation report to ERIC,
available at https://eric.ed.gov/, in a timely manner.
Requirement 7: Eligible Entities.
Eligible entities are title III or V institutions; nonprofits in
partnership with title III or V institutions; States in partnership
with title III or V institutions; or systems of public institutions of
higher education.
Final Definitions
The Secretary establishes the following definitions for use in the
PSSG program.
Completions of value measures the percentage of credentials that
lead to further education through upward transfer or graduate education
and/or that lead to economic mobility through earning enough to
experience a premium over high school graduates in one's State and
earning enough to recoup one's investment in postsecondary education.
The student must also be retained at, or transferring to, an
institution that confers completions of value.
Continuous improvement means using plans for collecting and
analyzing data about a project component's (as defined in 34 CFR 77.1)
implementation and outcomes (including the pace and extent to which
project outcomes are being met) to inform necessary changes throughout
the project. These plans may include strategies to gather ongoing
feedback from participants and stakeholders on the implementation of
the project component.
English learner means an individual who is an English learner as
defined in section 8101(2) of the Elementary and Secondary Education
Act of 1965, as amended, or an individual who is an English language
learner as defined in section 203(7) of the Workforce Innovation and
Opportunity Act.
Historically Black College or University means an institution that
meets the eligibility requirements under section 322(2) of the HEA.
Independent evaluation means an evaluation of a project component
that is designed and carried out independently of, but in coordination
with, the entities that develop or implement the project component.
Minority-serving institution means an institution that is eligible
to receive assistance under sections 317 through 320 of part A of title
III, or under title V of the HEA.
Student with a disability means any student enrolled at an
institution of higher education (including those accepted for dual
enrollment) who meets the definition of an individual with a disability
as defined in section 3 of the Americans with Disabilities Act of 1990
(42 U.S.C. 12102).
Tribally Controlled Colleges or Universities has the meaning
ascribed it in section 316(b)(3) of the HEA.
Underserved student means a student in one or more of the following
subgroups:
(a) A student who is living in poverty or is served by schools with
high concentrations of students living in poverty.
(b) A student of color.
(c) A student who is a member of a federally recognized Indian
Tribe.
(d) An English learner.
(e) A student with a disability.
(f) A student experiencing homelessness or housing insecurity.
(g) A lesbian, gay, bisexual, transgender, queer or questioning, or
intersex (LGBTQI+) student.
(h) A pregnant, parenting, or caregiving student.
(i) A student who is the first in their family to attend
postsecondary education.
(j) A student enrolling in or seeking to enroll in postsecondary
education for the first time at the age of 20 or older.
(k) A student who is working full-time while enrolled in
postsecondary education.
(l) A student who is enrolled in, or is seeking to enroll in,
postsecondary education who is eligible for a Pell Grant.
(m) An adult student in need of improving their basic skills or an
adult student with limited English proficiency.
Final Selection Criterion
Using Data for Continuous Improvement.
The extent to which the proposed project will build upon
demonstrated progress toward improved student outcomes, or the extent
to which the proposed project includes a plan to improve student
outcomes for underserved students, by using data to continually assess
and improve the outcomes associated with funded activities and sustain
data-driven continuous improvement processes at the institution after
the grant period.
Applicants addressing this selection criterion must--
(a) Identify, or describe how they will develop, the performance
and outcome measures they will use to monitor and evaluate
implementation of the intervention(s), including baseline data,
intermediate and annual targets, and disaggregation by student
subgroups;
(b) Describe how they will assess and address gaps in current data
systems, tools, and capacity, and how they will monitor and respond to
performance and outcome data to improve implementation of the
intervention(s) on an ongoing basis and as part of formative (which may
include rapid-cycle evaluation, pilots, feasibility studies, and
implementation research) and summative evaluation of the
intervention(s); and
(c) Describe how institutional leadership will be involved with,
and supportive of, project leadership and how the project relates to
the institution's broader student success priorities and improvement
processes.
This document does not preclude us from proposing additional
priorities, requirements, definitions, or selection criteria, subject
to meeting applicable rulemaking requirements.
Note: This document does not solicit applications. In any year in
which we choose to use any of these priorities, requirements,
definitions, or selection criterion, we invite applications through a
notice in the Federal Register.
Executive Orders 12866, 13563, and 14094
Regulatory Impact Analysis
Under Executive Order 12866, the Office of Management and Budget
(OMB) determines 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 three years by the Administrator of Office of
Information and Regulatory Affairs (OIRA) for changes in gross domestic
product); or adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, territorial, or Tribal
governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
[[Page 66231]]
(3) Materially alter the budgetary impacts of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise legal or policy issues for which centralized review would
meaningfully further the President's priorities, or the principles set
forth in this Executive order, as specifically authorized in a timely
manner by the Administrator of OIRA in each case.
This final regulatory action is not a significant regulatory action
subject to review by OMB under section 3(f) of Executive Order 12866,
as amended by Executive Order 14094.
We have also reviewed this final regulatory action under Executive
Order 13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866, as amended by Executive Order 14094.
To the extent permitted by law, Executive Order 13563 requires that
an agency--
(1) Propose or adopt regulations only upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or 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.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We are issuing these final priorities, requirements, definitions,
and selection criterion only on a reasoned determination that their
benefits would justify their costs. In choosing among alternative
regulatory approaches, we selected those approaches that would maximize
net benefits. Based on the analysis that follows, the Department
believes that this regulatory action is consistent with the principles
in Executive Order 13563.
The potential costs associated with these priorities, requirements,
definitions, and selection criterion would be minimal, while the
potential benefits are significant. The Department believes that this
final regulatory action would not impose significant costs on eligible
entities. Participation in this program is voluntary, and the costs
imposed on applicants by this regulatory action would be limited to
paperwork burden related to preparing an application. The potential
benefits of implementing the program would outweigh the costs incurred
by applicants, and the costs of carrying out activities associated with
the application would be paid for with program funds. For these
reasons, we have determined that the costs of implementation would not
be burdensome for eligible applicants, including small entities.
We also have determined that this regulatory action would not
unduly interfere with State, local, and Tribal governments in the
exercise of their governmental functions.
In accordance with these Executive orders, the Department has
assessed the potential costs and benefits, both quantitative and
qualitative, of this regulatory action. The potential costs are those
resulting from statutory requirements and those we have determined as
necessary for administering the Department's programs and activities.
Intergovernmental Review: 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 Federal financial assistance.
This document provides early notification of our specific plans and
actions for this program.
Regulatory Flexibility Act Certification
The Secretary certifies that these final priorities, requirements,
definitions, and selection criterion would not have a significant
economic impact on a substantial number of small entities.
The small entities that this final regulatory action would affect
are institutions that meet the applicable eligibility requirements. The
Secretary believes that the costs imposed on applicants by the final
priorities, requirements, definitions, and selection criterion would be
limited to paperwork burden related to preparing an application and
that the benefits would outweigh any costs incurred by applicants.
Participation in this program is voluntary. For this reason, the
final priorities, requirements, definitions, and selection criterion
would impose no burden on small entities unless they applied for
funding under the program. We expect that in determining whether to
apply for PSSG program funds, an eligible applicant would evaluate the
requirements of preparing an application and any associated costs and
weigh them against the benefits likely to be achieved by receiving PSSG
funds. Eligible applicants most likely would apply only if they
determine that the likely benefits exceed the costs of preparing an
application. The likely benefits include the potential receipt of a
grant as well as other benefits that may accrue to an entity through
its development of an application.
This final regulatory action would not have a significant economic
impact on any small entity once it receives a grant because it would be
able to meet the costs of compliance using the funds provided under
this program.
Paperwork Reduction Act of 1995
As part of its continuing effort to reduce paperwork and respondent
burden, the Department provides the general public and Federal agencies
with an opportunity to comment on proposed and continuing collections
of information in accordance with the Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3501 et seq.). This helps ensure that the public
understands the Department's collection instructions, respondents
provide the requested data in the desired format, reporting burden
(time and financial resources) is minimized, collection instruments are
clearly understood, and the Department can properly assess the impact
of collection requirements on respondents.
The final selection criterion contains information collection
requirements. Under the PRA the Department has submitted this selection
criterion to OMB for its review.
A Federal agency may not conduct or sponsor a collection of
information unless OMB approves the collection
[[Page 66232]]
under the PRA and the corresponding information collection instrument
displays a currently valid OMB control number. Notwithstanding any
other provision of the law, no person is required to comply with, or is
subject to penalty for failure to comply with, a collection of
information if the collection instrument does not display a currently
valid OMB control number.
Collection of Information: Using Data for Continuous Improvement
Eligible entities under this program are title III or V
institutions; nonprofits in partnership with title III or V
institutions; States in partnership with title III or V institutions;
or systems of public institutions of higher education. The collection
of information would include eligible applicants responding to this
final selection criterion: Using Data for Continuous Improvement, which
we changed from a priority to a selection criterion based on public
comment in response to the NPP. The Department will utilize the
selection criteria in selecting eligible applicants for funding.
Eligible applicants must respond to the selection criteria within the
application package for this program. We estimate the annual burden for
the information collection to average 8,400 hours, from 210 eligible
applicants at 40 hours 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. Thus, we estimate the total burden for this
collection to be 8,400 hours. At $47.20 per hour, the total annualized
estimated cost for 210 eligible applicants to respond to final
selection criteria is approximately $396,480.
Consistent with 5 CFR 1320.8(d), the Department is soliciting
comments on the information collection through this document. Between
30 and 60 days after publication of this document in the Federal
Register, OMB is required to make a decision concerning the collections
of information contained in this requirement. Therefore, to ensure that
OMB gives your comments full consideration, it is important that OMB
receives your comments on the Postsecondary Student Success Grant
(PSSG) Program Application Information Collection Request by September
16, 2024. Comments related to the information collection activities
must be submitted electronically through the Federal eRulemaking Portal
at www.regulations.gov by selecting the Docket ID number ED-2024-OPE-
0069 or via postal mail, commercial delivery, or hand delivery by
referencing the Docket ID number and the title of the information
collection request at the top of your comment. Comments submitted by
postal mail or delivery should be addressed to the PRA Coordinator of
the Strategic Collections and Clearance Governance and Strategy
Division, U.S. Department of Education, 400 Maryland Ave. SW, Room
4C210, Washington, DC 20202-1200.
We consider your comments on this proposed collection of
information in--
Deciding whether the proposed collection is necessary for
the proper performance of our functions, including whether the
information will have practical use;
Evaluating the accuracy of our estimate of the burden of
the proposed collection, including the validity of our methodology and
assumptions;
Enhancing the quality, usefulness, and clarity of the
information we collect; and
Minimizing the burden on those who must respond. This
includes exploring the use of appropriate automated, electronic,
mechanical, or other technological collection techniques.
Accessible Format: On request to one of the program contact persons
listed under FOR FURTHER INFORMATION CONTACT, individuals with
disabilities can obtain this document in an accessible format. The
Department will provide the requestor with an accessible format that
may include Rich Text Format (RTF) or text format (txt), a thumb drive,
an MP3 file, braille, large print, audiotape, compact disc, or other
accessible format.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations at www.govinfo.gov. At this site you can view this
document, as well as all other Department documents published in the
Federal Register, in text or Portable Document Format (PDF). To use
PDF, you must have Adobe Acrobat Reader, which is available free at the
site.
You may also access Department documents published in the Federal
Register by using the article search feature at
www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
Nasser Paydar,
Assistant Secretary for Postsecondary Education.
[FR Doc. 2024-17709 Filed 8-14-24; 8:45 am]
BILLING CODE 4000-01-P | usgpo | 2024-10-08T13:26:20.641195 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-17709.htm"
} |
FR | FR-2024-08-15/2024-17578 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66232-66234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17578]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2023-0371; FRL-11173-02-R9]
Air Plan Approval; California; Ventura County Air Pollution
Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve revisions to the Ventura County Air Pollution Control
District (VCAPCD) portion of the California State Implementation Plan
(SIP). These revisions concern definitions applicable to local rules
that control emissions of volatile organic compounds (VOCs) from: the
transfer and storage of reactive organic compound liquids and petroleum
material; and processing, production, gathering, and separation of
crude oil and natural gas. We are approving a local rule to regulate
these emission sources under the Clean Air Act (CAA or ``the Act'').
DATES: This rule is effective September 16, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2023-0371. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through https://www.regulations.gov, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information. If you need assistance
in a language other than English or if you are a person with a
disability who needs a reasonable accommodation at no cost to you,
please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section.
FOR FURTHER INFORMATION CONTACT: Donnique Sherman, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4129 or by
email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
[[Page 66233]]
Table of Contents
I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Proposed Action
On December 12, 2023 (88 FR 86093), the EPA proposed to approve the
following rule into the California SIP.
----------------------------------------------------------------------------------------------------------------
Local agency Rule # Rule title Revised Submitted
----------------------------------------------------------------------------------------------------------------
VCAPCD............................. 71 Crude Oil and Reactive 5/11/2021 10/15/2021
Organic Compound Liquids.
----------------------------------------------------------------------------------------------------------------
We proposed to approve this rule because we determined that it
complies with the relevant CAA requirements. Our proposed action
contains more information on the rule and our evaluation of it.
II. Public Comments and EPA Responses
The EPA's proposed action provided a 30-day public comment period.
During this period, we received one comment. The comment discussed the
importance of regulating emissions related to the oil and gas industry
because of the consequences to humans and the environment. We
acknowledge the comment, noting that VCAPCD Rule 71 is exclusively
composed of definitions applicable to the VCAPCD rules that regulate
emissions from (1) the transfer and storage of reactive organic
compound liquids and petroleum material; and (2) processing,
production, gathering, and separation of crude oil and natural gas the
transfer and storage of reactive organic compound liquids and petroleum
material. VCAPCD's clarifying revisions to Rule 71 will improve the
enforceability of the control measures in the District's other rules
that regulate the oil and gas industry and satisfy the relevant CAA
requirements. Therefore, we are approving the rule into the SIP.
III. EPA Action
No comments were submitted that change our assessment of the rule
as described in our proposed action. Therefore, as authorized in
section 110(k)(3) of the Act, the EPA is approving this rule into the
California SIP.
The May 11, 2021 version of Rule 71 will replace the previously
approved version of this rule in the SIP.
IV. Incorporation by Reference
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of VCAPCD
Rule 71, ``Crude Oil and Reactive Organic Compound Liquids,'' revised
on May 11, 2021, which consists of definitions applicable to local
rules that control emissions of volatile organic compounds (VOCs) from
(1) processing, production, gathering, and separation of crude oil and
natural gas and (2) the transfer and storage of reactive organic
compound liquids and petroleum material. The EPA has made, and will
continue to make, these documents available through www.regulations.gov
and at the EPA Region IX Office (please contact the person identified
in the FOR FURTHER INFORMATION CONTACT section of this preamble for
more information).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
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 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The State did not evaluate EJ considerations as part of its SIP
submittal; the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. The EPA did not perform an EJ
analysis and did not consider EJ in this action. Consideration of EJ is
not required as part of this action, and there is no information in the
record inconsistent
[[Page 66234]]
with the stated goal of Executive Order 12898 of achieving EJ for
people of color, low-income populations, and Indigenous peoples.
This action is subject to the Congressional Review Act, and the EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 15, 2024. 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).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Particulate matter,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: August 2, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.
For the reasons stated in the preamble, the Environmental
Protection Agency amends part 52, chapter I, title 40 of the Code of
Federal Regulations as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.220 is amended by adding paragraphs (c)(215)(i)(B)(4) and
(c)(601)(i)(B) to read as follows:
Sec. 52.220 Identification of plan--in part.
* * * * *
(c) * * *
(215) * * *
(i) * * *
(B) * * *
(4) Previously approved on February 29, 1996, in paragraph
(c)(215)(i)(B)(2) of this section and now deleted with replacement in
(c)(601)(i)(B)(1) of this section: Rule 71, adopted on December 13,
1994.
* * * * *
(601) * * *
(i) * * *
(B) Ventura County Air Pollution Control District.
(1) Rule 71, ``Crude Oil and Reactive Organic Compound Liquids,''
revised on May 11, 2021.
(2) [Reserved]
* * * * *
[FR Doc. 2024-17578 Filed 8-14-24; 8:45 am]
BILLING CODE 6560-50-P | usgpo | 2024-10-08T13:26:20.674407 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-17578.htm"
} |
FR | FR-2024-08-15/2024-18064 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66234-66240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18064]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2020-0455; FRL-11807-02-R2]
Approval and Promulgation of Air Quality Implementation Plans;
New York; Regional Haze State Implementation Plan for the Second
Implementation Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving the
regional haze State Implementation Plan (SIP) revision submitted by the
State of New York through the Department of Environmental Conservation
(NYSDEC or New York) on May 12, 2020, as satisfying applicable
requirements under the Clean Air Act (CAA) and EPA's Regional Haze Rule
(RHR) for the program's second implementation period. New York's SIP
submission addresses the requirement that States must periodically
revise their long-term strategies for making reasonable progress
towards the national goal of preventing any future, and remedying any
existing, anthropogenic impairment of visibility, including regional
haze, in mandatory Class I Federal areas. The SIP submission also
addresses other applicable requirements for the second implementation
period of the regional haze program. The EPA is taking this action
pursuant to the CAA.
DATES: This final rule is effective on September 16, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID Number EPA-R02-OAR-2020-0455. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g., Controlled
Unclassified Information (CUI) (formally referred to as Confidential
Business Information (CBI)) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Robert Rutherford, Air Programs
Branch, Environmental Protection Agency, 290 Broadway, New York, New
York 10007-1866, at (212) 637-3712, or by email at
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background
II. Evaluation of Comments
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
On May 12, 2020, the State of New York through the Department of
Environmental Conservation (NYSDEC or New York) submitted a revision to
its SIP to address regional haze for the second implementation period.
NYSDEC made this SIP submission to satisfy the requirements of the
CAA's regional haze program pursuant to CAA sections 169A and 169B and
40 CFR 51.308.
On March 22, 2024, the EPA published a notice of proposed
rulemaking (NPRM) in which the EPA proposed to approve New York's May
12, 2020, SIP submission as satisfying the regional haze requirements
for the second implementation period contained in the CAA and 40 CFR
51.308. 89 FR 20384. The EPA is now determining that the New York
regional haze SIP submission for the second implementation period meets
the applicable statutory and regulatory requirements and is thus
approving New York's submission into its SIP.
The specific details of New York's SIP submittals and the rationale
for the EPA's approval action are explained in the EPA's proposed
rulemaking and are not restated in this final action. For this detailed
information, the reader is referred to the EPA's March 22, 2024, NPRM
(89 FR 20384).
II. Evaluation of Comments
In response to the EPA's March 22, 2024, NPRM, the EPA received
four distinct comments during the 30-day public comment period. One of
the
[[Page 66235]]
comments was submitted in the form of a letter and was signed by three
Non-Governmental Organization (NGO) conservation groups writing as a
coalition (i.e., the National Parks Conservation Association (NPCA),
Sierra Club, and the Coalition to Protect America's National Parks).
The NGO commenters state in their comment letter that they ``do not
oppose EPA's proposal to approve New York's [Regional Haze] SIP
Revision,'' but rather ``urge EPA to address the issues raised [in the
comment letter] before finalizing'' the approval.
Two comments received were submitted by individuals. The final
comment was submitted by the Mid-Atlantic/Northeast Visibility Union
(MANE-VU) in support of the EPA's proposed action.
The specific comments may be viewed in Docket ID Number EPA-R02-
OAR-2020-0455 on the www.regulations.gov website. The EPA's summary of
and response to those comments is provided below.
Comment: The individual commenter provides various reference
materials. Among the reference materials are various links to websites
providing general information related to regional haze and other
matters, none of which specifically relate to this action.
Response: The EPA acknowledges receipt of the additional
information shared by the commenter.
Comment: The individual commenter states that air quality in the
average New York City neighborhood is most severely compromised by
motor vehicle emissions and hazards created because of climate change.
To address this, the commenter promotes the increased availability of
public transportation to reduce the need for individual car use, as
well as the regulation of motor vehicle emissions. The commenter then
suggests the maintenance of electrical power lines should be considered
due to their potential to cause wildfires when the states address
energy efficiency under Ask 6. Finally, the commenter expresses that
they do not support the EPA's approval of New York's SIP until the
commenter's concerns are addressed.
Response: The EPA acknowledges the commenter's concerns regarding
the impact that motor vehicle emissions and climate change induced
hazards have on air quality. Regarding the commenter's promotion of
public transportation to reduce the need for individual car use, the
EPA has determined that this outside the scope of our proposed action
and the EPA will not be providing a specific response to this portion
of the comment. As for the commenter's recommendation relating to the
regulation of motor vehicle emissions, as provided within the NPRM, New
York identified in its submission to the EPA, its consideration of the
Heavy Duty Diesel Engine Standard, Tier 3 Motor Vehicle Standards,
Light Duty Vehicle GHG Rule for Model-Year 2017-2025, and SIP-approved
part 217, ``Motor Vehicle Emissions,'' when developing its Long-Term
Strategy to address emissions of on-road sources.\1\
---------------------------------------------------------------------------
\1\ See 89 FR 20384, 20405 (March 22, 2024).
---------------------------------------------------------------------------
While the commenter expresses concern over the maintenance of
electrical power lines to prevent wildfires and claims this should be
addressed when States consider energy efficiency under Ask 6, the EPA
finds the SIP submission sufficiently addresses the applicable
requirements of the CAA and the RHR for the second planning period.
Comment: The NGO commenters express concern with the EPA's
suggestion that part of the basis for its approval of New York's SIP
revision was the fact that the uniform rate of progress (URP) for
several impacted Class I areas is well below the respective 2028
glidepath and stated that the EPA has made it clear that the glidepath
is not a safe harbor to avoid requiring additional reasonable progress
measures for Class I areas. The NGO commenters posit that the EPA could
not rely on the fact that the Class I areas impacted by New York
sources were well below their respective URP glidepaths to excuse New
York from conducting rigorous Four-Factor Analyses (FFA) to determine
whether additional control measures are necessary for reasonable
progress.
Response: The EPA has stated that being below the URP glidepath is
not a safe harbor (i.e., not a basis for not evaluating sources,
considering the four statutory factors, and potentially requiring
control measures), and in evaluating the State's source selection and
control measure determinations, the EPA did not rely on the fact that
the Class I areas impacted by New York sources are below their
respective URP glidepaths. Rather, the EPA factually stated that the
2028 projections for the Class I areas that New York contributes to are
all well below their respective glidepaths. This factual statement is
necessary to support the determination that New York satisfied the
applicable requirements of 40 CFR 51.308(f)(3), relating to reasonable
progress goals (RPGs) for each Class I area. Specifically, 40 CFR
51.308(f)(3)(ii)(B), which applies to all States, is satisfied by the
analyses the State provided within its long-term strategy, as detailed
under Section 10 of the State's submittal, and by the estimated
combined visibility benefits of strategies detailed in section 9.5 of
the State's submittal. The EPA determined that because the Class I
areas that New York contributes to are all well below their respective
glidepaths, New York was not required to conduct the ``robust
demonstration'' detailed under 40 CFR 51.308(f)(3)(ii)(B).
Comment: The NGO commenters express concern with the EPA's
endorsement of New York's relied upon source selection threshold. The
NGO commenters also express concern that New York's use of the MANE-
VU's source selection threshold of 3.0 inverse megameters
(Mm-1), was unreasonably high. Using this threshold, New
York identified seven sources, which was then further winnowed down to
include only two sources for further consideration of an FFA.
In addition, the NGO commenters express concern that New York
failed to select the 29 additional significant sources identified by
the Federal Land Managers (FLMs) for detailed FFAs and that the MANE-VU
2 percent or greater sulfate-plus-nitrate threshold, used to determine
whether New York emissions contribute to visibility impairment at a
particular Class I area, was an extremely low triggering threshold.
Thus, the NGO commenters suggest that New York should have used a lower
threshold that would have captured a more meaningful portion of in-
state sources, such as an emissions over distance (Q/d) threshold of 5
or an equivalent threshold that captures at least 80 percent of the
State's haze-forming emissions.
Response: As explained in the NPRM,\2\ the EPA does not necessarily
agree that the 3.0 Mm-1 visibility impact is a reasonable
threshold for source selection. The RHR recognizes that, due to the
nature of regional haze visibility impairment, numerous and sometimes
relatively small sources may need to be selected and evaluated for
implementation of control measures to make reasonable progress.\3\ As
the EPA has explained, while States have discretion to choose any
source selection threshold that is reasonable, ``[a] state that relies
on a visibility (or proxy for visibility impact) threshold to select
sources for FFA should set the threshold at a level that captures a
meaningful portion of the State's total
[[Page 66236]]
contribution to visibility impairment to Class I areas.'' In this case,
the 3.0 Mm-1 threshold used in MANE-VU Ask 2 identified
seven sources in New York (and 22 across the entire MANE-VU region),
indicating that it may, in some cases, be unreasonably high.
---------------------------------------------------------------------------
\2\ See 89 FR 20401-20402 (March 22, 2024).
\3\ See Clarifications Regarding Regional Haze State
Implementation Plans for the Second Implementation Period, EPA
Office of Air Quality Planning and Standards, at 4 (July 8, 2021)
(``2021 Clarifications Memo'').
---------------------------------------------------------------------------
Notwithstanding the above, in this instance, the EPA proposed to
find that New York's additional information and explanation indicated
that the State had in fact examined a reasonable set of sources--
including sources flagged by the FLMs--and that the State had
reasonably concluded that FFAs for its top-impacting sources were not
necessary because the outcome would be that no further emission
reductions would be reasonable.
While the FLMs identified sources beyond those for which New York
conducted FFAs, the State provides in its submittal that the MANE-VU's
analysis of these additional facilities, separate of the source
selection threshold analysis MANE-VU conducted and previously
mentioned, determined they did not require FFAs. Moreover, regarding
the facilities identified by the National Park Service (NPS) for FFA
consideration, New York provides in its response to comments, that it
did reassess the controls on these facilities and determined that more
controls were not necessary.\4\
---------------------------------------------------------------------------
\4\ See ``NY Response to Public Comments 05-07-2020'', as was
provided within the State's submittal to the EPA and is included
within the docket for this rulemaking.
---------------------------------------------------------------------------
Furthermore, the EPA based the proposed approval on the State's
examination of its largest operating electric generating units (EGUs)
and its industrial commercial institutional (ICI) boilers, at the time
of SIP submission, and on the emissions from and controls that apply to
those sources, as well as on New York's existing SIP-approved
NOX and SO2 rules that effectively control
emissions from the largest contributing stationary-source sectors.
The EPA acknowledges the NGO commenters' suggestion that New York
should have used a lower source selection threshold and evaluated
additional sources identified by the Federal Land Managers. That said,
the RHR does not require States to consider controls for all sources,
all source categories, or any or all sources in a particular source
category. Rather, States have discretion to choose any source selection
methodology or threshold that is reasonable, provided that the choices
they make are reasonably explained.\5\ To this end, 40 CFR
51.308(f)(2)(i) requires that a State's SIP submission must include ``a
description of the criteria it used to determine which sources or
groups of sources it evaluated.'' The technical basis for source
selection must also be appropriately documented, as required by 40 CFR
51.308(f)(2)(iii). In this instance, the EPA proposed to find that New
York had demonstrated that the sources of SO2 and
NOX within the State that would be expected to contribute to
visibility impairment have small emissions of those pollutants, are
subject to stringent SIP-approved emission control measures, or both.
---------------------------------------------------------------------------
\5\ See Clarifications Memo at Sections 2 and 2.1.
---------------------------------------------------------------------------
New York's information and explanation indicate that the State
examined a reasonable set of sources, including sources captured by the
other MANE-VU Asks and sources flagged by the FLMs, and reasonably
concluded that additional FFAs were not necessary because the outcome
would be that no further emission reductions would be reasonable for
this planning period.
Comment: The NGO commenters express concern with the EPA's proposed
approval of New York excluding sources from a FFA by asserting sources
are effectively controlled and exempt from consideration. The NGO
commenters reference Regional Haze guidance documents and the CAA to
reason that the demonstrations for numerous sources, provided by New
York, are highly flawed and fail to adequately demonstrate that
facilities within New York are effectively controlled.
Response: The EPA's approval of New York's Regional Haze SIP is
based on New York's satisfaction of the applicable regulatory
requirements for the second planning period in 40 CFR 51.308(f), (g),
and (i). These requirements include that States must evaluate and
determine the emission reduction measures necessary to make reasonable
progress by considering the four statutory factors and that the
measures that are necessary for reasonable progress must be in the SIP.
New York's submission includes FFAs in response to Asks 2 (for
NOX) and 3 (for SO2 emissions from sources across
the State). As the EPA explained in the NPRM, in assessing its
compliance with these Asks, New York explicitly engaged with the
statutory and regulatory requirement to determine measures necessary
for reasonable progress based on the four factors. As a result, the EPA
proposed in the NPRM to approve New York's SIP submittal as satisfying
the requirement of 40 CFR 51.308(f)(2)(i) that a State determine the
emission reduction measures that are necessary to make reasonable
progress by considering the four factors.
Moreover, New York's long-term strategy relied on several State air
pollution control regulations already approved into the SIP, including
6 NYCRR subpart 225-1, Fuel Composition and Use--Sulfur Limitations, 6
NYCRR part 219, Incinerators, and 6 NYCRR subpart 227-2, Reasonably
Available Control Technology (RACT) for Major Facilities of Oxides of
Nitrogen (NOX). The EPA finds that these regulations
sufficiently address the long-term strategy requirements of the RHR
because they establish emission limits for various source categories,
which will reduce the formation of visibility impairing pollutants.
Thus, the EPA is appropriately finalizing its approval of New York's
Regional Haze SIP revision based on the EPA's determination that New
York's SIP, including its long-term strategy, satisfies the
requirements of 40 CFR 51.308(f)(2)(i).
Contrary to the NGO commenters' arguments, New York's reliance on
already effective controls in lieu of FFAs for other sources in the
State is not inconsistent with the CAA or the EPA's Regional Haze
Guidance. As the comment notes, the EPA stated in the NPRM that the CAA
and RHR do not require that every State must analyze the four factors
for all sources. Indeed, the Agency also recognizes that analyses
regarding reasonable progress are state-specific and that, based on
States' and sources' individual circumstances, what constitutes
reasonable reductions in visibility impairing pollutants will vary from
state-to-state.\6\
---------------------------------------------------------------------------
\6\ See 89 FR 20387 (March 22, 2024).
---------------------------------------------------------------------------
Accordingly, in both guidance documents, the ``Guidance on Regional
Haze State Implementation Plans for the Second Implementation Period''
issued by EPA in August 2019 (``2019 Guidance'') and the 2021
Clarifications Memo, the EPA recognized that a State may reasonably
decide not to select sources that have recently installed effective
controls.\7\ As the EPA stated in the 2021 Clarifications Memo, ``The
underlying rationale for the `effective controls' flexibility is that
if a source's emissions are already well controlled, it is unlikely
that further cost-effective reductions are available.'' \8\ In such a
scenario, per the guidance, the State should explain why it is
reasonable to assume that a full FFA would likely result in the
conclusion that no further controls are necessary.\9\
---------------------------------------------------------------------------
\7\ 2019 Guidance at 22-25; 2021 Clarifications Memo at 5.
\8\ 2021 Clarifications Memo at 5.
\9\ 2019 Guidance at 23; 2021 Clarifications Memo at 5.
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[[Page 66237]]
In this case, New York evaluated those sources that had recently
installed controls, including applicable facility permits and
regulations, and demonstrated that the high level of control already
required makes it reasonable to conclude that the controls were
effective; a full FFA would likely result in the conclusion that no
further controls are necessary. Thus, the EPA finds that New York
satisfied the requirements of the RHR, as clarified by EPA Guidance.
Comment: The NGO commenters express concern with the lack of source
specific FFA information for the two sources, Finch Paper and Lafarge
Building Materials, which New York selected for FFAs. Specifically, the
NGO commenters' claim that New York did not provide any of the required
documentation to support its reasonable progress determinations for
these two facilities and that New York's conclusory statements relied
on an outdated RACT analysis and MACT compliance requirement, and not
on FFAs. Similarly, the NGO commenters argue that New York's
abbreviated analysis for Lafarge Building Materials do not comport with
the legal requirements of an FFA.
Additionally, regarding the determination that the emission limits
for Finch Paper and Lafarge Building Materials limit their potential
maximum light extinction impact below 3.0 (Mm-1)
and well below their previous levels, the NGO commenters assert that a
general lowering of emissions below a source screening threshold since
the 2011 emissions year on which the MANE-VU based its source-selection
screening process, is not an adequate basis for the EPA to approve an
otherwise arbitrary FFA. The NGO commenters claim that the EPA's
proposed reliance on SIP-approved controls installed at Finch Paper and
Lafarge Building Materials, which limit potential contribution to
visibility impairment, is inadequate when considering FFA requirements.
Finally, the NGO commenters express concern that there is no
documentation that the controls in place at Finch Paper and Lafarge
Building Materials are in the SIP. The NGO commenters assert that EPA
must require New York to conduct a complete and rigorous FFAs and
supplement the SIP. If New York fails to do so, the NGO commenters
assert the EPA must conduct the FFAs on the State's behalf, along with
providing the necessary supporting documentation.
Response: New York relied on the MANE-VU to target sources for
which the State conducted an FFA. Specifically, as New York provides
within section 10.6.3 of its submittal, Finch Paper and Lafarge
Building Materials were the two sources in the State that were
identified via modeling by the MANE-VU to have the potential for 3.0
Mm-1 or greater visibility impacts at Class I areas within
the MANE-VU region. Accordingly, the State conducted a FFA for both
sources pursuant to 40 CFR 51.308(f)(2)(i). New York listed the
statutory four factors that States must consider when conducting an
FFA, evaluated the individual four factors with respect to each of the
two facilities, and determined the emission reduction measures that are
necessary to make reasonable progress.\10\
---------------------------------------------------------------------------
\10\ See section 10.6.3, Significant Visibility Impact Sources,
of New York's SIP Revision to the EPA.
---------------------------------------------------------------------------
New York considered a RACT analysis and MACT compliance
requirements when evaluating the four factors for Finch Paper. New
York's submission determined that the phased-in switch from No. 6 fuel
oil to natural gas in their boilers (completed by the end of 2015) and
the boiler and combustion tune-ups, consistent with 40 CFR part 63,
subpart DDDDD (Boiler MACT Rule) (especially for boilers 4 and 5), were
adequate upgrades to control emissions. New York states that it has
adopted RACT-level controls for NOX and volatile organic
compound (VOC) sources statewide on the largest source categories and
that it fully complies with the requirements for Class I areas to
identify the RPGs. The EPA finds this analysis and its consideration of
the four factors supports the State's reasonable progress
determinations for these two facilities and is appropriate for meeting
the RHR requirements under 40 CFR 51.308(f)(2)(i).
Regardless of the State's determination that the emission limits
for Finch Paper and Lafarge Building Materials limit their potential
maximum light extinction impact below 3.0 inverse megameters
(Mm-1), the RHR does not provide a particular emission
threshold which States must meet when considering installation or
upgrade of emission controls under the four factors. However, the State
has determined these emission limits will provide for reasonable
progress towards achieving natural visibility conditions in Class I
areas it impacts. New York evaluated the four factors for both sources
under the flexibility provided by the EPA's RHR, which provides States
the ability to determine the long-term strategies necessary to make
reasonable progress. Therefore, the EPA has determined that the State
is taking the necessary steps in accordance with the CAA and RHR to
continue improving visibility conditions.
Finally, documentation that the controls in place at Finch Paper
and Lafarge Building Materials are in the SIP can be found under EPA
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the
New York SIP.\11\
---------------------------------------------------------------------------
\11\ See https://www.epa.gov/air-quality-implementation-plans/epa-approved-nonregulatory-provisions-and-quasi-regulatory-34.
---------------------------------------------------------------------------
Comment: The NGO commenters express concern over New York's
reliance on a cost-effectiveness threshold that the NGO commenters
consider to be unreasonably low and unable to achieve reductions in
visibility-impairing pollution from the State's sources. The NGO
commenters suggest New York should have used a higher cost-
effectiveness threshold, similar to those employed by other States like
Colorado and Nevada, who utilized a $10,000 per ton threshold.
Response: The cost-effectiveness threshold New York relied upon for
consideration of what was necessary for reasonable progress was
selected in accordance with the RACT requirements found under the
NYSDEC 2013 policy, ``DAR-20 Economic and Technical Analysis for
Reasonably Available Control Technology (RACT),'' \12\ and the EPA has
determined that the cost threshold is sufficient in this case. The RHR
does not provide a specific cost effectiveness emission threshold which
States must meet when considering installation or upgrade of emission
controls under the four factors. In this case, New York reasonably
evaluated the cost effectiveness of controls for both sources.
---------------------------------------------------------------------------
\12\ See https://extapps.dec.ny.gov/docs/air_pdf/dar20.pdf.
---------------------------------------------------------------------------
While Finch Paper's 2019 RACT analysis determined that six
technologies were technically feasible for the power boilers, the cost
analysis for three of the technologically feasible controls determined
that the costs for these control technologies exceeded the RACT
threshold identified in the NYSDEC 2013 policy. Furthermore, Finch
Paper had already implemented the other three identified control
technologies.\13\ Thus, New York determined these control costs were
too high to be considered necessary for reasonable progress under the
RHR, and the existing controls are sufficient. Moreover, the State did
not receive any comments related to the cost-threshold it utilized
during its public comment period.
---------------------------------------------------------------------------
\13\ 89 FR 42810 (May 16, 2024).
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[[Page 66238]]
Comment: The NGO commenters express concern with the lack of any
federally enforceable retirements and shutdowns included within New
York's SIP Revision for which the EPA can rely on to support its
proposed approval.
Response: The commenter refers to facilities and units at sources
that have ceased operating and were therefore not selected for further
examination and consideration of the four factors. New York referenced
a number of these facilities, including Somerset Operating Company,
Cayuga Generating Station, and Lafarge.\14\ Contrary to the commenters'
argument that New York did not include any enforceable retirements or
shutdowns, the State provided information about each of these
facilities as evidence of shutdowns or retirements. Evidence of
enforceable shutdowns can include a variety of different information.
For example, the permanent surrender of permits, evidence of
dismantling and/or decommissioning, and specifically a notice of
decommissioning from a regional Independent System Operator (in the
case of EGUs).
---------------------------------------------------------------------------
\14\ The commenter (as well as New York) also cited the shutdown
of Indian Point Unit 2. However, Indian Point is a nuclear plant and
does not have PM or regional haze precursor emissions. Therefore,
the operation or retirement of Indian Point Unit 2 is not relevant
for the regional haze SIP, nor the State's long-term strategy.
---------------------------------------------------------------------------
As explained in the NPRM, Lafarge entered a Consent Decree (CD)
with the EPA which contained a compliance schedule for the plant to
either modernize the existing plant, retrofit the existing wet process
kilns with controls, or retire the two wet process kilns.\15\
Accordingly, the EPA confirms that the wet process kilns were
demolished and are no longer in operation.\16\ Regarding the retirement
of the primary units at the Somerset Operating Company, the last coal-
fired plant operating in New York, the State provided in the supplement
to its SIP submission, that the facility is currently being demolished
and that it ceased operations and retired on March 30, 2020, following
the State's adoption of coal SO2 regulations under NYCRR
part 251, ``CO2 Performance Standards for Major Electric Generating
Facilities,'' and after submitting a deactivation plan to the New York
Independent System Operator (NYISO).\17\ Moreover, the EPA determined
that on December 12, 2019, the Somerset Operating Company submitted a
complete Generator Deactivation Notice for the retirement of the 675 MW
Somerset generator to the NYISO.\18\ Similarly, the State provides in
the supplement to its submission that Unit 2 and Unit 1 at the Cayuga
Generating Station shutdown in July 2018 and November 2019,
respectively. The NYISO also determined that Cayuga Generating Station
submitted a complete Generator Deactivation Notice for Unit 1 on August
1, 2019. Cayuga Generating Station Unit 2 was also placed in an ICAP
Ineligible Forced Outage by the NYISO on July 1, 2019.\19\
---------------------------------------------------------------------------
\15\ See U.S. v. Lafarge North America, Inc., Case 3:10-cv-
000440JPG-CJP, available at https://www.epa.gov/sites/default/files/documents/lafarge-cd.pdf.
\16\ See Lafarge Takes Down Old Stack in Controlled Explosion,
Melanie Lekocevic, Columbia-Greene Media (November 5, 2017), Hudson
Valley 360, available at http://ns1-wtonset.newscyclecloud.com/article/lafarge-takes-down-old-stack-controlled-explosion; see also
New York State Title V permit for Ravena Cement Plant, Condition 12-
14 (``Upon commencement of production of clinker from the new kiln
(EU 41100), the facility shall immediately discontinue use of the
old kilns (EU 41000)''), available at https://extapps.dec.ny.gov/data/dar/afs/permits/401240000100112_r1_21.pdf.
\17\ The NYISO monitors the reliability of the state's power
system and coordinates the daily operations to distribute
electricity supply. The NYISO provides open access to the state's
transmission system to allow competitive generation services. Energy
services companies who offer electricity supply, are required to
notify the NYISO of their eligibility status upon receipt of the
Department's compliance letter that the retail access application is
completed.
\18\ See https://www.nyiso.com/documents/20142/1396324/Somerset-Generator-Deactivation-Assessment-vFinal.pdf/f1fcf261-3d85-9f96-ef8f-70bdd1586505.
\19\ See https://www.nyiso.com/documents/20142/1396324/Cayuga1and2-Generation-Deactivation-Assessment-vFinal.pdf/9328ed90-41aa-da58-354f-d02fa755f260.
---------------------------------------------------------------------------
Thus, the EPA finds that sufficient evidence has been provided to
determine that these facilities are subject to enforceable shutdowns.
Comment: The NGO commenters express concern over the EPA's reliance
on fuel switching from coal-fired to burning of natural gas at units
lacking a thorough analysis detailing how a fuel conversion impacts
visibility impairing pollutants. Additionally, the NGO commenters argue
that controls should be considered and required at a new facility or at
a facility that switches fuel (converts to natural gas units) to
reflect emission rates that have been developed pursuant to an FFA.
Response: The EPA believes it is well understood that converting
coal-fired units to natural gas-firing is associated with significant
emission reductions. Importantly, the EPA notes that natural gas
contains nearly no sulfur, ash, or particulates.\20\ Thus, co-firing
results in a reduction in SO2 emissions and particulate
emissions respectively, and SO2 emissions and particulate
emissions are reduced by nearly 100% when 100% natural gas is
fired.\21\ Moreover, due to the characteristically low nitrogen content
of natural gas, NOX formation through the fuel
NOX mechanism is normally low.\22\
---------------------------------------------------------------------------
\20\ See https://www.epa.gov/system/files/documents/2024-04/attachment-5-11-natural-gas-co-firing-methodology.pdf.
\21\ See https://www.epa.gov/system/files/documents/2024-04/attachment-5-11-natural-gas-co-firing-methodology.pdf.
\22\ Id.
---------------------------------------------------------------------------
The emission benefits from switching to natural gas firing are also
detailed within the recent Greenhouse Gas (GHG) Standards and
Guidelines for Fossil Fuel-Fired Power Plants, which set emission
limits for new gas-fired combustion turbines and emission guidelines
for existing coal, oil and gas-fired steam generating units.\23\
---------------------------------------------------------------------------
\23\ 89 FR 39798.
---------------------------------------------------------------------------
Furthermore, regarding the NGO commenters' statement that the EPA
must require the State to consider and require controls on converted
gas units developed pursuant to a FFA, the EPA recognizes that that a
State may reasonably decide not to select sources for further
consideration of additional emission controls if the State determines
that emissions at a facility fall below a reasonable threshold, as is
the case with the RED-Rochester, Morton Salt Division, and Bowline
Point Generating Station facilities the NGO commenters reference. In
fact, as New York demonstrates under Table 10-4 of its submission,
these three facilities still fall below the NGO commenters' suggested
Q/d > 5 threshold. Thus, the EPA finds that New York reasonably
determined these sources did not require further analysis of emission
controls via an FFA.
Moreover, since New York provides that these facilities have
switched from firing coal to natural gas, and this is expected to
result in significant emission reductions of SO2 and
NOX, the State asserts that emissions at these facilities
are already effectively controlled. Thus, contrary to the claim in the
comment, the EPA recognizes that a State may reasonably decide not to
select sources that have recently installed effective controls.
Comment: The NGO commenters express concern with the EPA's failure
to identify what portions of New York's submittal document it proposes
to approve as SIP enforceable elements. Specifically, the NGO
commenters express concern that there are no revised SIP emission
limits for facilities within the State, such as Finch Paper, and that
the EPA does not identify the monitoring, reporting, and recordkeeping
requirements it proposes to approve for the sources into the SIP.
[[Page 66239]]
The NGO commenters argue that this prevents the public from reviewing
the administrative code or permit conditions that the EPA proposes to
include in the SIP and provide comment on whether they satisfy the
requirements of the CAA or the RHR.
Response: As provided under the CAA, for proposed action on SIPs,
the EPA must create a docket for its proposed action containing all the
information on which the proposed action relies. As the NGO commenters
note, the EPA references the ``Finch Source Specific State
Implementation Plan [SSSIP] Revision,'' which New York submitted to the
EPA on May 24, 2022, for the purpose of approving NOX
Reasonably Available Control Technology (RACT) for sources at the Finch
Paper facility as required for implementation of the 2008 and 2015
ozone National Ambient Air Quality Standards (NAAQS). While this SSSIP
is applicable to NOX RACT requirements, the EPA finds the
NOX emission reductions associated with the SSSIP to also be
consistent with the focus of New York's Regional Haze SIP at issue
here, which concerns SO2 and NOX emissions and
their impacts on visibility impairment at Federal Class I areas. The
EPA proposed action on the Finch Paper SSSIP on January 19, 2024,\24\
and finalized its approval of this revision on May 16, 2024.\25\
Moreover, the EPA provided a copy of the Finch Paper SSSIP submittal,
as it was submitted by the State, within the docket for the EPA's
proposed action on New York's Regional Haze SIP. The EPA refers the NGO
commenters to the publicly available docket for this action.
---------------------------------------------------------------------------
\24\ 89 FR 3620 (January 19, 2024).
\25\ 89 FR 42810 (May 16, 2024).
---------------------------------------------------------------------------
Although approval of the SSSIP for Finch Paper was finalized and
incorporated into New York's SIP after the EPA's proposed action on New
York's Plan for the Regional Haze Second Implementation Period, the
RACT conditions within the SSSIP were proposed to be included in the
SIP as federally enforceable prior to the EPA's proposed action on New
York's Plan for the Regional Haze Plan. The monitoring, reporting and
recordkeeping requirements to track compliance with the emission limits
that are detailed within the Finch Paper SSSIP are included in the
permit conditions, which have also since been incorporated into New
York's SIP.\26\ Furthermore, as detailed later within this final
rulemaking, the EPA took several steps to ensure that the public was
given the opportunity to adequately be involved with the Federal
rulemaking process for the Finch Paper SSSIP. The EPA utilized an
enhanced outreach approach which involved the distribution of physical
fact sheets to the public, posts across the EPA's social media accounts
and the EPA's official website to increase awareness, and an extended
public comment period of 60 days to allow the public additional time to
provide informed and meaningful comments on the proposed rulemaking.
Therefore, the EPA finds that it has provided the public with a
sufficient opportunity to review and comment on the regulatory
provisions being included in New York's Regional Haze SIP to comply
with the CAA and RHR.
---------------------------------------------------------------------------
\26\ See https://www.epa.gov/system/files/documents/2024-05/ibr-ny-finch-paper-eff-jan-12-2022.pdf, as provided on EPA's website for
New York's approved SIP (https://www.epa.gov/air-quality-implementation-plans/epa-approved-new-york-source-specific-requirements).
---------------------------------------------------------------------------
Comment: The NGO commenters express concern over the EPA's failure
to analyze and meaningfully consider the impacts of this SIP revision
on communities with environmental justice (EJ) concerns. In particular,
the NGO commenters raise concern with EPA's lack of consideration for
EJ in the source-specific analyses in its proposed action, asserting
that it is unreasonable for the EPA to ignore its obligations because
New York failed to conduct such source-specific analyses.
Response: The regional haze statutory provisions do not explicitly
address considerations of EJ, and neither do the regulatory
requirements of the second planning period in 40 CFR 51.308(f), (g),
and (i). However, the lack of explicit direction does not preclude the
State from addressing EJ in the State's SIP submission. As explained in
``EPA Legal Tools to Advance Environmental Justice'' \27\ and EPA
Regional Haze guidance,\28\ the CAA provides States with the discretion
to consider environmental justice in developing rules and measures
related to regional haze.
---------------------------------------------------------------------------
\27\ See EPA Legal Tools to Advance Environmental Justice, at
35-36 (May 2022), available at https://www.epa.gov/ogc/epa-legal-tools-advance-environmental-justice.
\28\ Clarifications Memo at 16.
---------------------------------------------------------------------------
In this instance, New York provided details in its submission
regarding the passage of the Climate Leadership and Community
Protection Act (CLCPA) in July of 2019. The CLCPA requires New York to
achieve a carbon free electric system by 2040 and reduce greenhouse gas
emissions 85% below 1990 levels by 2050, to expedite the transition to
a clean energy economy. New York anticipates that this law will drive
investment in clean energy solutions such as wind, solar, energy
efficiency and energy storage while targeting investments to benefit
disadvantaged communities by creating tens of thousands of new jobs,
improving public health and quality of life, and providing all New
Yorkers with more robust clean energy choices. Additionally, with
CLCPA's focus on EJ, State agencies will be investing at least 35% of
clean energy program resources to benefit disadvantaged communities.
As stated earlier in this NFRM, during the regulatory process
associated with the Source-Specific SIP approval for Finch Paper,\29\
the EPA took several steps to ensure that the communities within close
proximity to the Finch Paper facility were given the opportunity to
participate in the Federal rulemaking process. The EPA utilized
EJScreen to identify EJ concerns within a mile radius of the facility
and provided those results within the docket for the rulemaking for
transparency and awareness purposes. Additionally, the EPA utilized an
enhanced outreach approach which involved the distribution of physical
fact sheets to the public, posts across the EPA's social media accounts
and the EPA's official website to increase awareness, and an extended
public comment period of 60 days to allow the public additional time to
provide informed and meaningful comments on the proposed rulemaking.
---------------------------------------------------------------------------
\29\ See 89 FR 42810 (May 16, 2024).
---------------------------------------------------------------------------
III. Final Action
The EPA is approving New York's May 12, 2020, SIP submission, as
satisfying the regional haze requirements for the second implementation
period contained in 40 CFR 51.308(f), (g), and (i).
IV. Statutory and Executive Order Reviews
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,
[[Page 66240]]
October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
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 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a State program;
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian Tribe
has demonstrated that a Tribe has jurisdiction. In those areas of
Indian country, the rule does not have Tribal implications and it will
not impose substantial direct costs on Tribal governments or preempt
Tribal law as specified by Executive Order 13175 (65 FR 67249, November
9, 2000).
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
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.'' 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 State did not evaluate EJ considerations by means of an
extensive and comprehensive EJ analysis as part of its SIP submittal;
the CAA and applicable implementing regulations neither prohibit nor
require such an evaluation. Nevertheless, New York did reference
existing EJ programs within its SIP submittal, as described in section
V, ``Environmental Justice Considerations,'' of the NPRM. The EPA did
not perform an EJ analysis and did not consider EJ in this action.
Consideration of EJ is not required as part of this action, and there
is no information in the record inconsistent with the stated goal of
E.O. 12898 of achieving environmental justice for people of color, low-
income populations, and Indigenous peoples.
This action is subject to the Congressional Review Act, and the EPA
will submit a rule report to each House of the Congress and the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 15, 2024. 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)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Alyssa Arcaya,
Acting Regional Administrator, Region 2.
For the reasons set forth in the preamble, 40 CFR part 52 is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart HH--New York
0
2. In Sec. 52.1670, the table in paragraph (e) is amended by adding
the entry ``Regional Haze Plan from 2018-2028'' at the end of the table
to read as follows:
Sec. 52.1670 Identification of plan.
* * * * *
(e) * * *
EPA-Approved New York Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
New York
Action/SIP element Applicable geographic or submittal EPA approval date Explanation
nonattainment area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Regional Haze Plan from 2018- State-wide.............. 05/12/2020 08/15/2024, [insert Full
2028. Federal Register Approval.
citation]. New York
has met the
Regional Haze
Rule requirements
for the 2nd
Implementation
Period.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2024-18064 Filed 8-14-24; 8:45 am]
BILLING CODE 6560-50-P | usgpo | 2024-10-08T13:26:20.766577 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-18064.htm"
} |
FR | FR-2024-08-15/2024-17909 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66241-66254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17909]
[[Page 66241]]
=======================================================================
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 206
[Docket ID FEMA-2024-0024]
RIN 1660-AB15
Hazard Mitigation Grant Program Application Period Extension
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Emergency Management Agency (FEMA) is revising its
regulations to extend the Hazard Mitigation Grant Program's application
period. This revision will allow FEMA to approve additional projects
and offer applicants additional time for project approvals meant to
address the effects of climate change and other unmet community
mitigation needs.
DATES: This rule is effective August 15, 2024.
ADDRESSES: The docket for this rulemaking is available for inspection
using the Federal eRulemaking Portal at http://www.regulations.gov and
can be viewed by following that website's instructions.
FOR FURTHER INFORMATION CONTACT: Howard Stronach, Mitigation
Directorate, Hazard Mitigation Assistance Division, FEMA, 400 C St. SW,
Washington, DC 20472, (202) 646-3683, [email protected].
SUPPLEMENTARY INFORMATION:
1. Legal and Factual Background
FEMA's Hazard Mitigation Grant Program
FEMA is responsible for administering and coordinating the Federal
Government's response to disasters pursuant to the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (``Stafford Act'').\1\
There are two types of disaster declarations provided for in the
Stafford Act: emergency declarations \2\ and major disaster
declarations.\3\ Following a major disaster declaration, FEMA may
provide several different types of discretionary assistance to
applicants such as funding under its Hazard Mitigation Grant Program
(HMGP) which is authorized under Section 404 of the Stafford Act. 42
U.S.C. 5170c; 44 CFR 206.40.
---------------------------------------------------------------------------
\1\ Robert T. Stafford Disaster Relief and Emergency Assistance
Act, Public Law 93-288 (1974) (codified as amended at 42 U.S.C. 5121
et. seq.) (``Stafford Act'').
\2\ Stafford Act, supra note 1, section 501 (codified as amended
at 42 U.S.C. 5191(a)); see also Stafford Act, supra note 1, section
102 (codified as amended at 42 U.S.C. 5122) which defines
``emergency'' as ``any occasion or instance for which, in the
determination of the President, Federal assistance is needed to
supplement State and local efforts and capabilities to save lives
and to protect property and public health and safety, or to lessen
or avert the threat of a catastrophe in any part of the United
States.''
\3\ 42 U.S.C. 5170; 5122 (defining ``major disaster'' as ``any
natural catastrophe (including any hurricane, tornado, storm, high
water, wind-driven water, tidal wave, tsunami, earthquake, volcanic
eruption, landslide, mudslide, snowstorm, or drought), or,
regardless of cause, any fire, flood, or explosion, in any part of
the United States, which in the determination of the President
causes damage of sufficient severity and magnitude to warrant major
disaster assistance under this Act to supplement the efforts and
available resources of States, local governments, and disaster
relief organizations in alleviating the damage, loss, hardship, or
suffering caused thereby.'').
---------------------------------------------------------------------------
HMGP ``ensures that State, local, Tribal and territorial
governments have the financial opportunity to plan for and implement
mitigation measures that reduce the risk of loss of life and property
from future natural disasters during the reconstruction process
following a disaster.'' \4\ HMGP funding is time-limited; ``the award
period of performance for HMGP begins with the opening of the
application period and ends no later than 48 months from the close of
the application period.'' Id.
---------------------------------------------------------------------------
\4\ Federal Emergency Management Agency, Hazard Mitigation
Assistance Program and Policy Guide (``HMAPPG''), Part 10.A.4, p.
28, March 20, 2023, available at https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf (last
accessed on August 1, 2024).
---------------------------------------------------------------------------
Under HMGP, FEMA ``may contribute up to 75% of the cost of hazard
mitigation measures which the President has determined are cost-
effective and which substantially reduce the risk of future damage,
hardship, loss, or suffering in any area affected by a major
disaster.'' \5\ States (which includes Territories) \6\ and Indian
Tribal Governments are eligible applicants for HMGP funding, and upon
award, will become recipients.\7\ State agencies, local governments,
private nonprofit organizations, and Indian Tribal Governments \8\ are
eligible subapplicants for HMGP who, and, upon subaward, will become
subrecipients.\9\
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\5\ Stafford Act, supra note 1, section 404 (codified as amended
at 42 U.S.C. 5170c(a)); the statute caps the maximum amount of
financial assistance that FEMA may provide for hazard mitigation,
providing that the total of contributions ``shall not exceed 15
percent for amounts not more than $2,000,000,000, 10 percent for
amounts of more than $2,000,000,000 and not more than
$10,000,000,000, and 7.5 percent on amounts of more than
$10,000,000,000 and not more than $35,000,000,000'' of the estimated
aggregate amount of grants to be made under the disaster
declaration.
\6\ ``State'' means any State of the United States, the District
of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa,
and the Commonwealth of the Northern Mariana Islands. 42 U.S.C.
5122(4).
\7\ 44 CFR 206.431 at definitions of ``Applicant'' and
``Recipient''
\8\ Indian Tribal Governments have the option to apply as an
applicant or a subapplicant. 44 CFR 206.431 at definition of
``Indian Tribal Government.'' An Indian Tribal Government acting as
recipient will assume the responsibilities of a State, as described
in 44 CFR part 206, subpart N, for the purposes of administering the
grant. 44 CFR 206.431 at definition of ``Recipient.''
\9\ 44 CFR 206.431 at definition of ``Subrecipient.''
---------------------------------------------------------------------------
The HMGP lists all relevant program definitions at 44 CFR 206.431.
In HMGP, a ``grant application'' is a request to FEMA for HMGP funding
by a State or Tribal Government that will act as a recipient. 44 CFR
206.431. The ``subaward application'' is the request to the recipient
for HMGP funding by the eligible subrecipient. 44 CFR 206.431; 44 CFR
206.436(a). The ``grant award'' is the total Federal and non-federal
contributions to complete the approved scope of work.\10\ The
``subaward'' means an award provided by a pass-through entity to a
subrecipient for the subrecipient to carry out as part of the Federal
award. 44 CFR 206.431; 44 CFR 206.436(a). The ``recipient'' is the
State or Indian Tribal Government that receives a Federal award
directly from FEMA.\11\
---------------------------------------------------------------------------
\10\ Id. at definition of ``Grant award.''
\11\ 44 CFR 206.431 at definition of ``Recipient.''
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Hazard Mitigation Grant Program Application Procedures
HMGP applicants follow the procedures set forth at Sec. 206.436.
Upon identification of mitigation measures, the applicant submits an
HMGP application to the FEMA Regional Administrator. The HMGP
application includes a comprehensive narrative identifying intended
mitigation projects, State or local contacts, project locations,
description and cost estimates, an analysis of the cost-effectiveness
of the mitigation measures, work schedules, justification for
selection, relevant project management information and subrecipients.
See 44 CFR 206.436(c). Applications for HMGP serve to identify the
specific mitigation measures for which HMGP funding is requested.
Applicants must submit all local HMGP applications (also known as
subaward applications or subapplications) and funding requests to the
FEMA Regional Administrator within 12 months of the date of the
disaster declaration.\12\ Under Sec. 206.436(e), however, applicants/
recipients may request that the Regional Administrator extend the
application time limit by additional 30-to-90-day
[[Page 66242]]
increments, not to exceed a total of 180 days.
---------------------------------------------------------------------------
\12\ See 44 CFR 206.436.
---------------------------------------------------------------------------
The amount of HMGP funding available to the applicant is based on
the estimated total Federal assistance for the major disaster
declaration, subject to the sliding scale formula that FEMA provides
for disaster recovery. 44 CFR 206.432(b). FEMA establishes the amount
of funding available for HMGP for each disaster \13\ (called the HMGP
``ceiling'') at 12 months after the date of the disaster declaration
(called the HMGP ``lock-in'').\14\ FEMA provides two point-in-time
estimates prior to the 12-month lock-in (at 35 days and 6 months) so
that the applicant has some approximation of funding availability for
each disaster in order to solicit and select among subapplications for
mitigation projects. Id. When major fluctuations of projected disaster
costs occur, FEMA, at the request of the applicant, may conduct an
additional review after the 12-month lock-in. If the resulting review
shows that the amount of funds available for HMGP is different than
previously calculated, the final lock-in amount will be adjusted
accordingly. Id.
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\13\ The maximum amount of financial assistance that FEMA may
provide for HMGP is based on the amount of the grants FEMA projects
it will provide under the major disaster declaration. Specifically,
the amount of contributions ``shall not exceed 15 percent for
amounts not more than $2,000,000,000, 10 percent for amounts of more
than $2,000,000,000 and not more than $10,000,000,000, and 7.5
percent on amounts of more than $10,000,000,000 and not more than
$35,333,000,000'' of the estimated aggregate amount of grants to be
made under the disaster declaration. 42 U.S.C. 5170c(a).
\14\ Federal Emergency Management Agency, Hazard Mitigation
Assistance Program and Policy Guide (``HMAPPG''), Part 10.A.4, pp.
199-200, March 20, 2023, available at https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf
(last accessed on August 1, 2024).
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2. Public Support & Need for Rule Change
FEMA stakeholders have identified the length of the application
period and the inability to re-open the application period once it has
closed as barriers to applying for assistance under HMGP.\15\
Specifically, State, local, Tribal, and territorial (SLTT) stakeholders
have indicated they would benefit from additional time to develop
quality applications and identified lack of resources, staff, and
technical expertise necessary to prepare quality applications in a
timely manner, resource challenges in trying to apply for assistance
while also managing the response and recovery from a major disaster,
failing to have a set HMGP ceiling established until the 12-month mark
when the applications are due, and cumulative disasters as
circumstances that further exacerbate the challenges to applying for
assistance. Id.
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\15\ See, e.g., www.regulations.gov, Docket ID FEMA-2022-0023 at
FEMA-2022-0023-0014 (comment from Texas Division of Emergency
Management suggesting that FEMA remove the statutory requirement
that FEMA will only consider an extension to the application
deadline if the applicant's inability to meet the deadline must have
resulted from the event leading to the major disaster declaration.
TDEM notes ``[t]here are many legitimate extenuating circumstances
that could lead a state to miss an application deadline that aren't
directly caused by the declared disaster.''); at FEMA-2022-0023-0032
(comment from Iowa Homeland Security and Emergency Management noting
more time might be necessary for projects if a State experiences
back to back disaster declarations); at FEMA-2022-0023-0034 (comment
from the City of New Orleans argues that not allowing applicants to
submit projects after the application period closes creates a strain
on applicants to have ready to go project ideas in the near-term
recovery period); at FEMA-2022-0023-0038 (comment from New York
State Hazard Mitigation arguing that FEMA should be incorporating
flexibility into the application process, particularly when FEMA
and/or other disasters are the sole reasons for not being able to
meet the 12 month deadline, noting that ``[i]n a perfect world, a 12
month application period seems more than sufficient, but taking into
account impacts from one disaster occurring while dealing with
another disaster and adding 2 more disasters within the 12 month
period plus annual FEMA competitive programs that all impact the
same groups makes this an impossibility.''); at FEMA-2022-0023-0053)
(comment from Louisiana Governor's Office of Homeland Security and
Emergency Preparedness arguing that a State/jurisdiction can face
significant challenges when back to back events occur, stating it is
it is ``unrealistic to assume that the impacts from one event are
not compounded by each subsequent event, affecting overlapping
regions of the State, and further stressing State and local
capacity'' and further stating that ``FEMA should provide
flexibility to extend and in some cases re-open an application
period when a lock-in recalculation is made, especially when that
recalculation comes at the end of the application period, and
especially when the increase is substantial'' because applicants
need sufficient time to develop and submit quality applications.)
---------------------------------------------------------------------------
Among the feedback received, SLTT entities indicated a need for
allowing FEMA to extend or reopen the application period after it
closes when disaster assistance recalculations potentially result in
increased lock-in ceilings.\16\ Between October 1, 2019, and January 1,
2023, applicants submitted 75 requests, out of a total of 171
applications, for extensions beyond the 180 days Regional
Administrators are permitted to authorize. Based on analysis of
historical data from FEMA's NEMIS database,\17\ from 2013-2022, 26.0
percent of applicants submit their applications within 12 months or
less, 16.0 percent of applicants request extensions and submit their
applications between 12-15 months, 31.3 percent of applicants request
extensions and submit their applications between 15-18 months, and 26.7
percent of applicants are unable to complete their applications within
the 18 months allowable under the regulations.
---------------------------------------------------------------------------
\16\ See Docket ID FEMA-2022-0025 (containing comments from the
Ohio Emergency Management Mitigation Branch, ``. . . [w]hat is the
purpose of re-calculating the ceiling amount after the application
period has closed if FEMA cannot extend the application period and
make the funds available to states and communities?''; see also,
FEMA-2022-0023-0038 (containing comments from the New York State
Hazard Mitigation that FEMA should incorporate flexibility in its
lock in ceiling process).
\17\ The National Emergency Management Information System
(NEMIS) is a FEMA-wide system that allows FEMA and its partners to
carry out emergency management missions for the United States, its
Territories, and its Tribal Agencies.
---------------------------------------------------------------------------
FEMA has statutory authority to waive administrative conditions
that would prevent applicants from receiving assistance if the
inability to meet such conditions is the result of the major disaster.
See 42 U.S.C. 5141. FEMA has used this authority to grant extensions
beyond 18 months to those applicants who can demonstrate they are
unable to meet the deadline as a result of the major disaster. From
2013-2022, for disasters that required extensions beyond the
regulatorily-provided 18 months, the average amount of additional time
approved by FEMA is approximately 11.6 months; however, this amount
includes several major disasters with extraordinary circumstances that
require significantly more time to address than typical disasters. The
median amount of additional time, which provides a more realistic
snapshot, is approximately 6.1 months.
FEMA establishes the amount of funding available for HMGP for each
disaster at 12 months after the date of the disaster declaration. 42
U.S.C. 5170c(a). The 12-month application deadline currently in
regulation does not provide sufficient time for applicants to submit
their applications. In light of the public participation referenced
throughout \18\ and resultant
[[Page 66243]]
data analytics research discussed in Regulatory Analysis ``B. Executive
Orders 12866, `Regulatory Planning and Review' and 13563, `Improving
Regulation and Regulatory Review,' '' FEMA now moves to address these
identified challenges.
---------------------------------------------------------------------------
\18\ See, e.g., www.regulations.gov, Docket ID FEMA-2022-0023 at
FEMA-2022-0023-0014 (comment from Texas Division of Emergency
Management suggesting that FEMA remove the statutory requirement
that FEMA will only consider an extension to the application
deadline if the applicant's inability to meet the deadline must have
resulted from the event leading to the major disaster declaration.
TDEM notes ``[t]here are many legitimate extenuating circumstances
that could lead a state to miss an application deadline that aren't
directly caused by the declared disaster.''); at FEMA-2022-0023-0032
(comment from Iowa Homeland Security and Emergency Management noting
more time might be necessary for projects if a State experiences
back to back disaster declarations); at FEMA-2022-0023-0034 (comment
from the City of New Orleans argues that not allowing applicants to
submit projects after the application period closes creates a strain
on applicants to have ready to go project ideas in the near-term
recovery period); at FEMA-2022-0023-0038 (comment from New York
State Hazard Mitigation arguing that FEMA should be incorporating
flexibility into the application process, particularly when FEMA
and/or other disasters are the sole reasons for not being able to
meet the 12 month deadline, noting that ``[i]n a perfect world, a 12
month application period seems more than sufficient, but taking into
account impacts from one disaster occurring while dealing with
another disaster and adding 2 more disasters within the 12 month
period plus annual FEMA competitive programs that all impact the
same groups makes this an impossibility.''); at FEMA-2022-0023-0053)
(comment from Louisiana Governor's Office of Homeland Security and
Emergency Preparedness arguing that a State/jurisdiction can face
significant challenges when back to back events occur, stating it is
it is ``unrealistic to assume that the impacts from one event are
not compounded by each subsequent event, affecting overlapping
regions of the State, and further stressing State and local
capacity'' and further stating that ``FEMA should provide
flexibility to extend and in some cases re-open an application
period when a lock-in recalculation is made, especially when that
recalculation comes at the end of the application period, and
especially when the increase is substantial'' because applicants
need sufficient time to develop and submit quality applications.)
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3. Discussion of Rule Change
FEMA is amending Sec. 206.436 to extend the HMGP's application
period and reopen the registration period under limited circumstances.
FEMA is revising Sec. 206.436(d), ``Application submission time
limit,'' to extend the initial deadline for applicants to submit local
HMGP applications and funding requests from 12 months to 15 months from
the date of disaster declaration. FEMA's historical data shows that 42
percent of applicants are able to submit applications within 15 months
(26.0 percent who are able to meet the current 12-month deadline + 16
percent who are able to request an extension and submit by the 15-month
extended deadline). FEMA's historical data also shows that setting the
initial deadline at 18 months will increase this number by 31.3
percent. FEMA is extending the initial deadline to 15 months instead of
18 months (or longer) to ensure that it is setting an achievable
deadline while still maintaining its commitment to timely and effective
grants management. The additional 3 months also provides applicants
time to receive the 12-month lock in amount and make educated
adjustments to the amount of funding they are applying for. This would
lessen the administrative burden placed on HMGP recipients and FEMA as
it would require fewer application extension requests and responses.
FEMA is making several revisions to Sec. 206.436(e),
``Extensions.'' Currently, Sec. 206.436(e) provides that an applicant
may, with justification, request that the Regional Administrator extend
the application time limit by 30 to 90 day increments, not to exceed a
total of 180 days. FEMA is revising Sec. 206.436(e) by adding
introductory text to state that upon receiving a written request from
the applicant, FEMA may extend the application submission timeline as
described in new paragraphs (e)(1) and (2). New paragraph (e)(1)
retains the language currently in paragraph (e), except that FEMA is
increasing 90 days to 120 days and increasing 180 days to 240 days.
FEMA is also changing the word ``recipient'' to ``applicant'' in the
last sentence for accuracy, as ``applicant'' is an entity applying to
FEMA for funding; it is only upon award that the applicant becomes the
recipient.
New paragraph (e)(2) provides that FEMA will only consider requests
for extensions beyond 240 days for extenuating circumstances outside of
the applicant's control. Such requests must be submitted to the
Regional Administrator and must include justification. FEMA is adding
new paragraph (e)(2) because it understands that extenuating
circumstances outside of the applicant's control might prevent the
applicant from submitting its application within the 240-day timeframe.
FEMA is therefore allowing requests for extensions as a matter of
fairness but is requiring such extensions to be coordinated between the
FEMA region and FEMA Headquarters and requiring justification to ensure
that no application period is extended indefinitely. As described in
FEMA's Hazard Mitigation Assistance Program and Policy Guide, a
recipient's extension request must (1) describe the extenuating
circumstances that prevent the recipient from meeting that application
period deadline, (2) document how the recipient implemented HMGP
consistent with its Administrative Plan, (3) provide an implementation
strategy and goals to use any remaining assistance (including an
assessment of the additional time requested and an updated
Administrative Plan), and (4) identify any technical assistance that
can assist in addressing resource gaps and/or is needed to successfully
implement the program.\19\
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\19\ HMAPPG, Part 10.A.10, p. 208-209, Mar. 20, 2023, available
at https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf (last accessed on August 1, 2024).
---------------------------------------------------------------------------
As noted throughout, FEMA stakeholders have identified the length
of the application period and the inability to reopen the application
period once it has closed as barriers to applying for assistance under
HMGP. They have indicated that additional time to develop applications
would allow them to not only submit more applications, but better, more
complete applications as well.\20\ In response, FEMA is adding a new
paragraph (f) to allow FEMA to reopen application periods on a limited
basis. This paragraph, entitled ``Reopening of application period,''
provides that FEMA's Assistant Administrator for the Mitigation
Directorate may reopen a closed application period for up to 180 days
under two circumstances. (FEMA is limiting its ability to reopen a
closed application period to 180 days to ensure this remains a limited
authority). The first circumstance, addressed in paragraph (f)(1),
``Recalculation of assistance,'' will allow FEMA to reopen a closed
application period if FEMA approves a recalculation of assistance under
Sec. 206.432 and an applicant requests to reopen the application
period within 60 days of FEMA's recalculation approval.
---------------------------------------------------------------------------
\20\ See Docket ID: FEMA-2022-0023-0034 (comment from the City
of New Orleans argues that not allowing applicants to submit
projects after the application period closes creates a strain on
applicants to have ready to go project ideas in the near-term
recovery period).
---------------------------------------------------------------------------
As stated above, the amount of available HMGP funding is based on a
percentage of the estimated total Federal assistance for each disaster
declaration. 42 U.S.C. 5170c; 44 CFR 206.432(b). FEMA establishes the
HMGP lock-in 12 months after the disaster declaration. Id. In
circumstances when a major disaster results in significant fluctuations
of projected or actual costs, FEMA, at the recipient's request, may
change the ``lock-in'' amount if the projections or actuals used to
determine it were inaccurate enough that the change would be material.
Id. However, FEMA currently cannot reopen the application period after
it has closed even if there has been an increase to the ceiling amount
of assistance. Id. This causes issues for applicants because ``lock-
in'' recalculations can greatly increase the amount of additional HMGP
funding but often occur close to the end of, or even outside of, the
application period, leaving applicants without additional time to apply
for that extra funding.
FEMA is adding new paragraph (f)(1) to allow FEMA to reopen a
closed application period to address this issue.
[[Page 66244]]
FEMA is requiring applicants to submit such requests within 60 days of
FEMA's recalculation to ensure that submissions are timely and to
prevent an applicant from requesting a reopening after an extended
period of time has passed. The second circumstance, addressed in
paragraph (f)(2), ``Appeal,'' will allow FEMA to reopen a closed
application period if FEMA grants an appeal under Sec. 206.440 for an
application extension denial after an application period is closed.
Currently, if FEMA grants an appeal for an application extension
denial, FEMA lacks the authority to reopen the application period for
that applicant. This results in an inequitable scenario where the
applicant wins its appeal but is deprived of a ``remedy,'' which
effectively renders the appeal meaningless. Allowing FEMA to reopen the
application period for an applicant whose appeal it has granted would
enable FEMA to provide all applicants a more effective and equitable
appeals process.
FEMA will redesignate current paragraph (f), ``FEMA approval,'' as
paragraph (g). In new paragraph (g), FEMA will make nonsubstantive
revisions such as changing the word ``State'' to ``applicant'' for
greater accuracy, as well as minor grammatical edits to incorporate the
active voice. Lastly, FEMA will redesignate current paragraph (g),
``Indian Tribal recipients,'' as paragraph (h).
4. Regulatory Analysis
A. Administrative Procedure Act
The Administrative Procedure Act (APA) generally requires agencies
to publish a notice of proposed rulemaking in the Federal Register and
provide interested persons the opportunity to submit comments. See 5
U.S.C. 553(b) and (c). The APA provides an exception to this prior
notice and comment requirement for matters relating to public property,
loans, grants, benefits, or contracts. 5 U.S.C. 553(a)(2).
FEMA's HMGP program is a grant program through which FEMA obligates
funding to State, local, Tribal, and territorial governments, as well
as eligible private nonprofit organizations, for post-disaster hazard
mitigation measures that reduce the risk of, or increase resilience to,
future damage, hardship, loss or suffering in any area affected by a
major disaster, or any area affected by a fire for which assistance was
provided under section 420 of the Stafford Act. Because this rule
relates to FEMA's obligation of grant funding under the HMGP program,
it is exempt from notice and comment rulemaking under the APA. In
addition to the grants exemption previously noted, this rulemaking
serves to increase flexibility in the administration of this mitigation
grant program.
While FEMA asserts this rule is exempt from notice and comment
procedures, the agency acknowledges its general policy to provide for
public participation in rulemaking.\21\ FEMA has retained its
discretion to depart from this policy as circumstances warrant. 44 CFR
1.3(c). Extending the HMGP application period warrants such a departure
from notice and comment rulemaking, because the effort is a result of
public comment. FEMA has already received comments from numerous
stakeholders in response to a publication of the Hazard Mitigation
Assistance (HMA) Program and Policy Guide for public comment \22\
expressing concern regarding the challenges they encounter in meeting
the current HMGP deadlines \23\ and supporting the regulatory changes
in this rulemaking. This rule does not impose any additional
requirements on applicants; rather, in response to public comment
requesting additional flexibilities in the HMGP,\24\ it increases
flexibility for applicants by allowing more opportunities for them to
develop and improve their grant applications to address the effects of
climate change and other unmet mitigation needs.
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\21\ 44 CFR 1.3(a). Until recently, FEMA waived the exemption
afforded to grant programs under the APA and treated its programs as
if they were subject to traditional notice and comment requirements.
On March 3, 2022, FEMA published a final rule clarifying its
position regarding notice and comment rulemaking for its grant
programs. See 87 FR 11971, Mar. 3, 2022. FEMA determined that
removal of the waiver of the exemption streamlined the regulations
and ensured that the agency retained the flexibility to utilize a
range of public engagement options in advance of rulemaking where
appropriate. FEMA noted that it would retain its general policy in
favor of public participation in rulemaking but would retain
discretion to depart from this policy as circumstances warrant.
\22\ 87 FR 52016; HMAPPG, available at https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf (last accessed on August 1,2024).
\23\ See, e.g., www.regulations.gov, Docket ID FEMA-2022-0023 at
FEMA-2022-0023-0014 (comment from Texas Division of Emergency
Management suggesting that FEMA remove the statutory requirement
that FEMA will only consider an extension to the application
deadline if the applicant's inability to meet the deadline must have
resulted from the event leading to the major disaster declaration.
TDEM notes ``[t]here are many legitimate extenuating circumstances
that could lead a state to miss an application deadline that aren't
directly caused by the declared disaster.''); at FEMA-2022-0023-0032
(comment from Iowa Homeland Security and Emergency Management noting
more time might be necessary for projects if a State experiences
back to back disaster declarations); at FEMA-2022-0023-0034 (comment
from the City of New Orleans argues that not allowing applicants to
submit projects after the application period closes creates a strain
on applicants to have ready to go project ideas in the near-term
recovery period); at FEMA-2022-0023-0038 (comment from New York
State Hazard Mitigation arguing that FEMA should be incorporating
flexibility into the application process, particularly when FEMA
and/or other disasters are the sole reasons for not being able to
meet the 12 month deadline, noting that ``[i]n a perfect world, a 12
month application period seems more than sufficient, but taking into
account impacts from one disaster occurring while dealing with
another disaster and adding 2 more disasters within the 12 month
period plus annual FEMA competitive programs that all impact the
same groups makes this an impossibility.''); at FEMA-2022-0023-0053)
(comment from Louisiana Governor's Office of Homeland Security and
Emergency Preparedness arguing that a State/jurisdiction can face
significant challenges when back to back events occur, stating it is
it is ``unrealistic to assume that the impacts from one event are
not compounded by each subsequent event, affecting overlapping
regions of the State, and further stressing State and local
capacity'' and further stating that ``FEMA should provide
flexibility to extend and in some cases re-open an application
period when a lock-in recalculation is made, especially when that
recalculation comes at the end of the application period, and
especially when the increase is substantial'' because applicants
need sufficient time to develop and submit quality applications.)
\24\ Id.
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[[Page 66245]]
Finally, FEMA asserts this rule provides necessary relief for the
public that should not be delayed. Delayed effective dates are provided
to give the public a reasonable time to prepare to comply with a rule.
The APA generally requires that substantive rules incorporate a 30-day
delayed effective date. 5 U.S.C. 553(d). However, the APA
simultaneously provides an exception to the 30-day delayed effective
date for rules which grant or recognize an exemption or relieve a
restriction.\25\ 5 U.S.C. 553(d)(1). This rule relieves a restriction
on the amount of time HMGP applicants have to develop and submit
mitigation project applications and is a result of public comment.
---------------------------------------------------------------------------
\25\ See Indep. U.S. Tanker Owners Comm. v. Skinner, 884 F.2d
587, 591 (D.C. Cir. 1989) (holding where rule relieves restriction,
agency need not make explicit claim in published rule of its right
to waive 30-day waiting period).
---------------------------------------------------------------------------
In response to a March 2023 update to and publication of the Hazard
Mitigation Policy and Program Guide,\26\ FEMA received comments from
Iowa Homeland Security and Emergency Management,\27\ the Texas Division
of Emergency Management,\28\ New York State Hazard Mitigation,\29\ the
Louisiana Governor's Office of Homeland Security and Emergency
Preparedness,\30\ and the City of New Orleans,\31\ all calling for
additional time and flexibilities in the HMGP application process. In
response to this feedback, FEMA ran a query of HMGP disaster
application duration periods and found a need to extend the HMGP
application period. This discussion is found in the regulatory analysis
section below. This final rule will allow applicants and subapplicants
more time to develop and submit additional mitigation project
applications to address climate change and other unmet mitigation
needs, relieving the restriction from which public commenters requested
relief.
---------------------------------------------------------------------------
\26\ 87 FR 52016; HMAPPG, available at https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf (last accessed on August 1, 2024).
\27\ FEMA-2022-0023-0032.
\28\ FEMA-2022-0023-0014.
\29\ FEMA-2022-0023-0038.
\30\ FEMA-2022-0023-0053.
\31\ FEMA-2022-0023-0034.
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B. Executive Orders 12866, ``Regulatory Planning and Review'' and
13563, ``Improving Regulation and Regulatory Review''
Executive Orders 12866 (``Regulatory Planning and Review'') as
amended by Executive Order 14094 (Modernizing Regulatory Analysis), and
13563 (Improving Regulation and Regulatory Review) direct agencies to
assess the costs and benefits of available regulatory alternatives and,
if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, reducing costs, harmonizing rules, and promoting
flexibility.
The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866, as amended by Executive Order 14094. Accordingly, OMB has
not reviewed this regulatory action.
The following paragraphs explain the need for the updated
regulation, the affected population, and the benefits.
Need for Updated Regulation
Through HMGP, FEMA provides financial assistance to States,
Territorial, and Tribal governments and thereafter funds may be
distributed to local authorities or certain private nonprofit
organizations for post disaster hazard mitigation measures that reduce
the risk of, or increase resilience to, future damage, hardship, loss
or suffering in any area affected by a major disaster. FEMA's current
12-month HMGP application deadline in regulation does not provide
sufficient time for applicants to submit their applications resulting
in frequent requests for application period extensions. Additionally,
FEMA currently lacks the ability to re-open closed HMGP application
periods when additional funding becomes available after the period
closes or when an applicant's extension appeal is granted by FEMA. In
these cases, FEMA's inability to re-open application periods prevents
HMGP funds from helping communities rebuild in a way that mitigates
future disaster losses.
To assess the need for changes to the existing application period
authorities, FEMA ran a query of application period durations for the
689 disasters declared during the 10-year period from 2013 to 2022. It
found that:
Only 26 percent of applicants (179 of 689) were able to
submit all subapplications within the base 12-month application period;
16 percent of applicants (111 of 689) were able to submit
their applications after 12 months and within 15 months;
31.3 percent of applicants (215 of 689) were able to
submit their applications after 15 months and within 18 months, only
requiring an extension from the Regional Administrator; and,
26.7 percent (184 of 689 applicants) needed extensions
beyond 18 months from FEMA Headquarters to be able to submit all
subapplications. Currently, the only existing extension authority from
Headquarters to issue application extensions is Section 301 of the
Stafford Act.
During this 10-year period, the average amount of additional time
approved by FEMA beyond the regulatorily provided 18 months is
approximately 11.6 months, which was heavily influenced by several
major disasters with extraordinary circumstances, including major
disaster Hurricanes Harvey, Irma, and Maria in 2017. The median amount
of additional time was 6.1 months. This data shows that the current
application period extension allowances are not enough for many
applicants.
The Figure 1 graph shows application period extension length by
disaster over the 10-year period analyzed. The dark portion of the x-
axis labeled ``Regional Extension'' shows disasters where the recipient
requested an extension from the Regional Administrator and the light
portion of the x-axis labeled ``Headquarters Extension'' shows
extension requests from Headquarters. FEMA excluded approximately 70
major disasters with extensions cumulatively greater than 460 days from
the graph below because including these outliers would affect the scale
and make it difficult to display the plateaus at 90 days (representing
a total application period of 15 months) and 180 days (representing a
total application period of 18 months).\32\ There are also smaller
plateaus at 270 and 365 days (representing application periods of 21
and 24 months, respectively) due to Headquarters extensions. These
plateaus show the amount of time frequently requested by HMGP
recipients and granted by FEMA. FEMA is using this information to
update Sec. 206.436(d)-(e) by:
---------------------------------------------------------------------------
\32\ FEMA excluded 70 major disasters with extensions
cumulatively greater than 460 days. These data outliers had
extraordinary circumstances that required significantly more time to
address and therefore do not represent typical disasters.
---------------------------------------------------------------------------
Increasing the base application period by 3 months: from
12 to 15 months. This would decrease the percentage of recipients that
require a Regional or Headquarters extension by 16 percent (111 of
689).
Lengthening the Regional Administrator extension authority
from 180 days (6 months) to 240 days (8 months). This would decrease
the percentage of recipients that require Headquarters extensions by
10.7 percent
[[Page 66246]]
(from 26.7 percent to 16 percent of disaster application periods). Only
16 percent would require an extension beyond what the Regional
Administrator could grant.
[GRAPHIC] [TIFF OMITTED] TR15AU24.021
The additional 3 months gained from changing the application period
from 12 to 15 months will give HMGP recipients time to receive the 12-
month lock-in from FEMA and make educated adjustments to the amount of
funding they have applied for. This would lessen the administrative
burden placed on HMGP recipients and FEMA as it would require fewer
application extension requests and responses.
The 15-month application period allows FEMA to balance the need to
provide assistance quickly with ensuring appropriate oversight of
application periods that exceed this period. FEMA Headquarters will
retain the ability to issue consistent determinations on additional
application period requests for major disasters with extraordinary
circumstances. It ensures that recipients have adequate time to submit
applications while simultaneously obligating funds at an acceptable
rate.
Affected Population
HMGP funding is available, when authorized under a Presidential
major disaster declaration, in the areas identified by the requesting
State Governor or Chief Executive of an eligible Tribe. The level of
HMGP funding available for a given disaster is based on a percentage of
the estimated total Federal assistance available under the Stafford
Act, excluding administrative costs, for each Presidential major
disaster declaration. This rule will extend the HMGP application
deadline for States, Territories, and the District of Columbia as well
as 565 Federally-recognized Tribes. HMGP applications are made by
States or Tribes on behalf of subapplicants that include local
government agencies and eligible private nonprofit organizations.
From 2013 to 2022, FEMA's HMGP approved an average of 69
applications per year and approved an average of $859,779 in Federal
funding per applicant. 33 34 Of these projects, FEMA found
43 Tribal projects, or an average of 4 per year. However, FEMA's
database does not indicate whether these were submitted directly by an
eligible Tribe, or through a State with the Tribe as a subrecipient.
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\33\ FEMA adjusted approved funding amounts by the Consumer
Price Index for All Urban Consumers to 2022 dollars. Available at
https://data.bls.gov/timeseries/CUUR0000SA0&years_option=specific_years&from_year=2013&to_year=2022&periods_option=specific_periods&periods=M13&annualAveragesRequested=true (Last accessed on August 1, 2024).
\34\ Data for projects that, as of the date of this analysis,
are still pending or under review where the Federal Share Obligated
is not listed, as well as denied applications, were exclded from the
average.
---------------------------------------------------------------------------
Baseline
Following Office of Management and Budget (OMB) Circular A-4
guidance, FEMA assessed impacts of this rule against a no-action
baseline. The no-action baseline is what the world would look like
without this rule. Accordingly, measuring the rule against a no-action
baseline shows the effects of the rule as compared to current FEMA
practice (i.e., compared to Sec. 206.436 and the HMA Program and
Policy Guide,\35\ which reflect FEMA's current practice).
---------------------------------------------------------------------------
\35\ HMAPPG, Part 6.C.1., p. 131, available at https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf (last accessed on August 1, 2024).
---------------------------------------------------------------------------
FEMA conducted a 10-year retrospective analysis of available HMGP
data from 2013 to 2022, the most recent representative disaster period
with complete data at the time of this analysis, to estimate how the
rule will impact major disaster declaration costs, benefits, and
transfers over a 10-year period. FEMA recognizes a future 10-
[[Page 66247]]
year period could vary from the 2013 to 2022 period. However, this is
the best estimate given the data available and the unpredictability of
the number, size, and cost of future HMGP awards.
FEMA is making the following changes in this rule: (1) Extending
the initial deadline for States to submit local HMGP applications and
funding requests from 12 months to 15 months from the date of disaster
declaration; (2) increasing application period extensions from
increments of an additional 90 days to 120-day increments and
increasing the total limit from 180 days to 240 days; (3) allowing FEMA
to consider application period extension requests beyond 240 days for
extenuating circumstances outside of the applicant's control; (4)
enabling the reopening of a closed application period if FEMA approves
a recalculation of HMGP assistance funding and the applicant requests
to reopen the application period within 60 days of FEMA's recalculation
approval; and (5) enabling the reopening of a closed application period
if FEMA grants an appeal for an application period extension denial
after an application period is closed.
For this analysis, FEMA looked at approved HMGP applications and
the timelines in which they were submitted. FEMA looked at application
deadlines that were extended by FEMA Regional Administrators as well as
extensions approved by FEMA Headquarters. For all disasters declared
between January 1, 2013, and December 31, 2022 the average application
period was 19.3 months.\36\
---------------------------------------------------------------------------
\36\ Data was pulled from FEMA's NEMIS database. Data is entered
manually by FEMA employees processing these applications and is
subject to data entry and incomplete or missing data fields. FEMA
excluded Disaster numbers 4241, 4140, 4214, and 4163 from this
average as that data is unreliable. Including these disasters will
have increased the average to 19.64 months.
---------------------------------------------------------------------------
Currently, the Regional Administrator can issue an extension of 6
months to each disaster's application period. Disasters that require
application submission time in excess of 18 months (12-month
application period + 6-month regional extension) can be extended by
FEMA Headquarters. The average Headquarters extension required is 11.6
months. FEMA found that 510 out of the 689 disasters declared in the
10-year period, or 74 percent, needed an extension from a FEMA Regional
Administrator (over 12 months), and 184 out of the 510 disasters
requiring an extension from FEMA, or 36 percent, also needed an
extension from FEMA Headquarters (over 18 months). Changing the
standard length of the application period from 12 months to 15 months
and changing the Regional Administrator's extension authority from 6
months to 8 months will allow the regions to completely handle
disasters with application periods under 23 months. This represents 579
out of 689 disasters declared in the 10-year period, or 84 percent.
FEMA estimates that with this rule, an average of 110 disasters per
year, or 16 percent of disasters annually, will require an extension
from FEMA Headquarters.
FEMA does not have historical data for reopening the application
period. FEMA does not currently have the regulatory authority to reopen
application periods. However, FEMA does know of two requests over the
past 5 years to reopen the application period, both of which were
denied.
Costs
The primary costs associated with this rule are familiarization
costs for States, Territories, the District of Columbia, and Tribes
after this rule is finalized. FEMA assumes that Tribal Governments will
only need to understand this process when a disaster is declared in
their territory, so rather than estimating familiarization costs for
all 565 Tribes, FEMA assumes only 4 per year--the average number of
Tribal projects per year from 2013 to 2022--will need to read and
understand this rule. FEMA estimates that in the first year, 60
applicants will read this rule, followed by an average of 4 applicants
in subsequent years.
Based on a benchmark reading level of 250 words per minute for most
adults,\37\ FEMA estimates that for each applicant two Emergency
Management Directors per State, with a fully-loaded wage rate of $55.78
\38\ ($34.86 x 1.6) \39\ will spend 0.7 hours (approximately 9,000
words / 250 words per minute / 60 minutes) to read and understand this
rule. This will lead to familiarization costs of $4,686 for the first
year ($55.78 per hour x 0.7 hours x 120 employees). Subsequent years
will have familiarization costs of $312 ($55.78 per hour \40\ x 0.7
hours x 8 employees).
---------------------------------------------------------------------------
\37\ HealthGuidance.org, What Is the Average Reading Speed and
the Best Rate of Reading? (April 22, 2024), available at https://www.healthguidance.org/entry/13263/1/what-is-the-average-reading-speed-and-the-best-rate-of-reading.html ExecuRead, Speed Reading
Facts, https://secure.execuread.com/facts/ (last accessed on August
1, 2024).
\38\ Bureau of Labor Statistics, May 2022 National Industry-
Specific Occupational Employment and Wage Estimates, NAICS 999200
State Government excluding schools and hospitals, SOC 11-9161
Emergency Management Directors mean hourly wage $34.86. Available at
https://www.bls.gov/oes/2022/may/naics4_999200.htm#11-0000. (last
accessed on August 1, 2024).
\39\ FEMA uses a benefits multiplier of 1.61 to calculate fully
loaded wage rates. The benefits multiplier accounts for costs to the
employer beyond wages, such as paid leave, health insurance,
retirement, and other benefits. Bureau of Labor Statistics, Employer
Costs for Employee Compensation, Table 1. ``Employer costs For
Employee Compensation by ownership,'' March 2023. Available at
http://www.bls.gov/news.release/archives/ecec_06162023.pdf. (last
accessed on August 1, 2024). The benefits multiplier is calculated
by dividing total compensation for State and local government
workers of $58.08 by Wages and salaries for State and local
government workers of $35.89 per hour yielding a benefits multiplier
of approximately 1.6 ($58.08 / $35.89).
\40\ Occupational Employment Statistics do not include Tribal
Governments in their estimates, so FEMA used the wage rate for State
Government employees.
---------------------------------------------------------------------------
FEMA estimates the 10-year annualized familiarization costs for
this rule to be $810 at 7 percent and $894 at 3 percent. See Table 1.
Table 1--10-Year Familiarization Costs, Discounted and Annualized
[$2023]
----------------------------------------------------------------------------------------------------------------
Year Undiscounted 3 Percent 7 Percent
----------------------------------------------------------------------------------------------------------------
1............................................................... $4,686 $4,550 $4,379
2............................................................... 312 294 273
3............................................................... 312 286 255
4............................................................... 312 277 238
5............................................................... 312 269 222
6............................................................... 312 261 208
7............................................................... 312 254 194
8............................................................... 312 246 182
9............................................................... 312 239 170
[[Page 66248]]
10.............................................................. 312 232 159
-----------------------------------------------
Total....................................................... 7,494 6,908 6,280
Annualized.................................................. .............. 810 894
----------------------------------------------------------------------------------------------------------------
FEMA cannot predict whether applicants will spend additional time
on their grant applications as a result of the extension. However, FEMA
expects extending the application period by 3 months for HMGP
assistance will not increase costs to HMGP applicants or to FEMA.
Applicants will have more knowledge about the amount of money they will
have to spend at 15 months because the ``lock-in'' generally occurs at
12 months; the extension allows for 3 months of additional time, post-
disaster, to recover and identify areas for improved resiliency in
their communities. FEMA expects the additional time will help
applicants ensure application information is accurate and includes
necessary mitigation projects. The ability to reopen the application
period is not allowed under current regulations, so this will add
additional costs to FEMA and applicants. An applicant will have to
dedicate time to request the reopening, and FEMA will have to review
and approve or deny the reopening based on statutory authority to do
so. However, since this has not been done before, FEMA does not have
historical data to estimate the time and staffing requirements to
reopen an application period.
Benefits
This rule will reduce the application burden for applicants and
FEMA by extending application deadlines to a more reasonable timeframe.
These timeframes will allow applicants to collect information and
submit the application to the FEMA Region and receive approval without
the additional steps involved in requesting extensions from FEMA
Regional Administrators and FEMA Headquarters. Additionally, this rule
will decrease the burden on FEMA of processing application extension
requests.
FEMA estimated cost savings to the Federal Government by
multiplying the reduction of work hours for FEMA staff to review and
process the extension request by the hourly-loaded wage rates. HMGP
regional staff estimate a time burden between 3-5 hours per extension
request, which includes multiple levels of review. FEMA used an average
estimate of 3.5 hours for a Regional Office review and 4 hours for a
Headquarters review. FEMA used Step 5 of the General Schedule to
account for the average experience level of Federal employees, and
added a 23.25 percent average locality multiplier to account for
average locality pay across the United States \41\ to the 2023 General
Schedule (Base) \42\ pay, as well as a 1.45 percent benefits
multiplier.\43\ For example, a GS-12 Step 5 working in a Regional
Office would have an estimated hourly compensation of $69.00 (base wage
of $38.61 x 1.2325 average locality adjustment x 1.45 wage multiplier).
Table 2 shows the breakdown of time and wages for FEMA staff to review
and approve extension requests.
---------------------------------------------------------------------------
\41\ FEMA averaged the locality adjustment for all localities
across the U.S. Available at https://www.federalpay.org/gs/locality
(last accessed on August 1, 2024).
\42\ 2023 General Schedule Pay Table (Base), available at
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/23Tables/pdf/GS_h.pdf. (last accessed on August 1,
2024).
\43\ FEMA uses a benefits multiplier of 1.45 to calculate fully
loaded wage rates. The benefits multiplier accounts for costs to the
employer for benefits, such as paid leave, health insurance,
retirement, and other benefits. Bureau of Labor Statistics, Employer
Costs for Employee Compensation, Table 1.``Employer costs For
Employee Compensation by ownership,'' March 2023. Available at
http://www.bls.gov/news.release/archives/ecec_06162023.pdf (last
accessed on August 1, 2024).
The benefits multiplier is calculated by dividing total
compensation for civilian workers of $43.07 by Wages and salaries
for civilian workers of $29.70 per hour yielding a benefits
multiplier of approximately 1.45 ($43.07 / $29.70).
Table 2--Review of HMGP Extension Requests (2023$)
----------------------------------------------------------------------------------------------------------------
Total
Type Grade level Hours Fully-loaded opportunity
wage rate \44\ cost savings
----------------------------------------------------------------------------------------------------------------
Regional Extension *.................. 12...................... 2.5 $69.00 $172.50
14...................... 0.5 96.95 48.48
15...................... 0.25 114.05 28.51
[dagger] SES............ 0.25 123.09 30.77
-------------------------------------------------------------------------
Total per Request................. ........................ .............. .............. 280.26
----------------------------------------------------------------------------------------------------------------
HQ Extension [supcaret]............... 12...................... 2.5 74.17 185.42
14...................... 0.5 104.23 52.11
15...................... 0.25 122.60 30.65
13 (Legal Review)....... 0.5 88.20 44.10
SES..................... 0.25 123.09 30.77
-------------------------------------------------------------------------
Total per Request................. ........................ .............. .............. 343.05
----------------------------------------------------------------------------------------------------------------
* Office of Personnel Management 2023 Pay and Leave Table (Base Schedule with 23.25% increase for average
locality differential). Available at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/GS_h.pdf. (Wage rates multiplied by 1.2325) (last accessed on August 1, 2024).
[[Page 66249]]
[dagger] Senior Executive Service January 2023 Pay and Leave. Available at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/23Tables/exec/html/ES.aspx. (last accessed on August 1,
2024). FEMA used the midpoint of the salary rage ($141,022 to $212,100) of $176,561 and applied a multiplier
of 1.45 to obtain yearly compensation of $256,013. Yearly salary was divided by 2,080 to estimate hourly
compensation of $123.09.
[supcaret] Office of Personnel Management 2023 Pay and Leave Tables for the Washington-Baltimore-Arlington, DC-
MD-VA-WV-PA locality. Available at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB.pdf (last accessed on August 1, 2024).
FEMA estimates that this rule will reduce the number of extension
requests by 6.9 per year for the Regional Administrators and 7.4 per
year for FEMA Headquarters. This will lead to a cost reduction of
$1,934 (6.9 requests x $280.26) per year for Regional extensions and
$2,539 (7.4 requests x $343.05) per year for Headquarters extensions.
---------------------------------------------------------------------------
\44\ FEMA uses a benefits multiplier of 1.45 to calculate fully-
loaded wage rates. The benefits multiplier accounts for costs to the
employer for benefits, such as paid leave, health insurance,
retirement, and other benefits. Bureau of Labor Statistics, Employer
Costs for Employee Compensation, Table 1.``Employer costs For
Employee Compensation by ownership,'' March 2023. Available at
http://www.bls.gov/news.release/archives/ecec_06162023.pdf (last
accessed on August 1, 2024).
The benefits multiplier is calculated by dividing total
compensation for civilian workers of $43.07 by Wages and salaries
for civilian workers of $29.70 per hour yielding a benefits
multiplier of approximately 1.45 ($43.07 / $29.70).
---------------------------------------------------------------------------
FEMA estimated the cost savings to applicants of this rule by
multiplying the reduction of work hours for an applicant to compile
information and submit the extension request by the annual number of
extension requests and by the appropriate wage rate. HMGP regional
staff estimate the time burden for applicants to be 3-5 hours for each
extension request; FEMA used the average estimate of 4 hours. FEMA
estimates the average number of extension requests to be 14.3 (6.9
Regional + 7.4 Headquarters) per year, and the fully-loaded \45\ hourly
wage rate for a State Government Emergency Management Director to be
$55.78.\46\ FEMA estimates applicant cost savings of $223.12 ($55.78 x
4) per extension request and a total cost savings to applicants of
$3,191 ($223.12 x 14.3 requests).
---------------------------------------------------------------------------
\45\ Fully-loaded wage rates include other benefits, we are
using a factor of 1.61 to calculate fully loaded wage rates. The
unloaded wage rate does not account for costs to the employer for
benefits, such as paid leave, health insurance, retirement, and
other benefits. Bureau of Labor Statistics. Employer Costs for
Employee Compensation, Table 1. ``Employer costs For Employee
Compensation by ownership,'' March 2023. Retrieved from http://www.bls.gov/news.release/archives/ecec_06162023.pdf (last accessed
on August 1, 2024).
The wage multiplier is calculated by dividing total compensation
for State and local government workers of $58.08 by Wages and
salaries for State and local government workers of $35.89 per hour
yielding a benefits multiplier of approximately 1.61 ($58.08 /
$35.89).
\46\ Bureau of Labor Statistics. Occupational Employment Survey
May 2022, SOC 11-9161 Emergency Management Directors: State
Government mean hourly wage $34.86. Available at https://www.bls.gov/oes/2022/may/naics4_999200.htm#11-0000 (last accessed on
August 1, 2024).
---------------------------------------------------------------------------
The total quantified cost savings from this rule are $4,473 ($1,934
+ 2,539) in cost savings to FEMA and $3,191 in cost savings to HMGP
applicants totaling $7,664 in cost savings per year. FEMA was unable to
estimate the benefits from reopening the application period due to a
lack of historical data. FEMA expects that additional cost savings will
exist by diminishing the need to reopen the application period for
numerous applications but cannot quantify those cost savings.
Transfer Payments
FEMA is not able to estimate the impacts on transfer payments of
this rule. FEMA expects no changes in the number of HMGP grants
approved, or the amount of funding obligated as total HMGP funding is
limited by a ``lock-in,'' which acts as a ceiling for assistance
available to a recipient, including its subrecipients. The level of
HMGP assistance available for a given disaster is based on a percentage
of the estimated total Federal assistance under the Stafford Act,
excluding administrative costs for each major disaster declaration.\47\
However, FEMA is unable to estimate if the changes will affect the
amount of funding that is obligated but unused by applicants. Between
2013 and 2022 approximately 18.22 percent of HMGP funds were returned
to the Disaster Relief fund due to a number of factors, including
insufficient time for recipients to submit applications. This amount
also includes withdrawn applications, ineligible applications, or
applications found to not be cost-effective by FEMA. Because
application time constraints were only one factor in the amount of HMGP
funds not expended, FEMA is unable to estimate the amount of transfers
that can be expected from this rule.
---------------------------------------------------------------------------
\47\ HMAPPG, Part 10.A.4.p.199, available at https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf (last accessed on August 1, 2024).
---------------------------------------------------------------------------
Alternatives Considered
FEMA considered extending the application period to 18 months
instead of 15 months, with no changes to the Regional Administrator's
ability to extend. While the average application period duration
including extensions is approximately 19 months. Major disasters with
extraordinary circumstances, which are far less common than typical
disasters, raised the average significantly. FEMA chose to increase the
application period to 15 months to balance the need to provide
assistance quickly while ensuring appropriate oversight for more
complex disasters. In addition, requesting additional time for Regional
Administrators to authorize (i.e., two 120-day extensions instead of
two 90-day extensions) will address most outliers that need to extend
beyond 15 months.
Conclusion
FEMA believes this rule is necessary due to historical timeframes
for HMGP applications exceeding what is currently allowed by
regulation. Under current practice, the majority of HMGP applications
must be extended by FEMA regions and FEMA Headquarters. This creates an
unnecessary burden to both FEMA and HMGP applicants that increases the
costs of submitting these applications as well as project delays under
the current process for requesting extension. The extensions provided
by this rule will result in cost savings to both FEMA and HMGP
applicants, as well as streamline the process for a substantial number
of applicants who will no longer be required to navigate a cumbersome
process of requesting extensions through the Regional Administrator and
FEMA Headquarters. The cost savings associated with this final rule
show why extending the HMGP application period will be beneficial.
Additionally, this rule will allow FEMA more flexibility to reopen HMGP
application periods when needed and to reopen application periods if an
applicant successfully appeals a denial. This rule will ensure HMGP
funds are more efficiently allocated.
[[Page 66250]]
Table 3--OMB Circular A-4 Accounting Statement (2023$)
------------------------------------------------------------------------
3 Percent discount 7 Percent discount
Category rate rate
------------------------------------------------------------------------
BENEFITS:
Annualized Monetized........ $7,664............ $7,664
---------------------------------------
Qualitative (unquantified) More likely to use available
benefits. HMGP funds due to greater likelihood
of grant approvals
---------------------------------------
COSTS:
---------------------------------------
Annualized Monetized........ $810.............. $894
---------------------------------------
Qualitative (unquantified) N/A
costs.
---------------------------------------
TRANSFERS:
---------------------------------------
Annualized Monetized........ $0................ $0
---------------------------------------
Qualitative (unquantified) Increased number of approved
Transfers. HMGP grants up to the maximum
available funding per declared
disaster
---------------------------------------
From/To..................... FEMA to HMGP recipients and
subrecipients
---------------------------------------
Effects on State, local, and/ Extends the HMGP application
or Tribal governments. deadline for States, Territories, and
the District of Columbia as well as
565 Federally recognized Tribes
---------------------------------------
Effects on small businesses. Not estimated
---------------------------------------
Effects on wages............ None
---------------------------------------
Effects on growth........... None
------------------------------------------------------------------------
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), and
section 213(a) of the Small Business Regulatory Enforcement Fairness
Act of 1996, Pub. L. 104-121, 110 Stat. 847, 858-9 (Mar. 29, 1996) (5
U.S.C. 601 note) require that special consideration be given to the
effects of regulations on small entities. The RFA applies only when an
agency is ``required by section 553 . . . to publish general notice of
proposed rulemaking for any proposed rule.'' \48\ An RFA analysis is
not required for this rulemaking because FEMA is not required to
publish a notice of proposed rulemaking.
---------------------------------------------------------------------------
\48\ 5 U.S.C. 603(a).
---------------------------------------------------------------------------
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 658, 1501-1504,
1531-1536, 1571, pertains to any rulemaking which is likely to result
in the promulgation of any rule that includes a Federal mandate that
may result in the expenditure by State, local, and Tribal governments,
in the aggregate, or by the private sector, of $100 million (adjusted
annually for inflation) or more in any one year. If the rulemaking
includes a Federal mandate, the Act requires an agency to prepare an
assessment of the anticipated costs and benefits of the Federal
mandate. The Act also pertains to any regulatory requirements that
might significantly or uniquely affect small governments. Before
establishing any such requirements, an agency must develop a plan
allowing for input from the affected governments regarding the
requirements.
FEMA has determined that this rulemaking will not result in the
expenditure by State, local, and Tribal governments, in the aggregate,
nor by the private sector, of $100,000,000 or more in any one year as a
result of a Federal mandate, and it will not significantly or uniquely
affect small governments. Therefore, no actions are deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
Additionally, regulations are only reviewable under UMRA when an
agency has published a notice of proposed rulemaking as defined by 5
U.S.C. 553(b). See 2 U.S.C. 658(10); 5 U.S.C. 601(2). FEMA is not
required to publish a notice of proposed rulemaking; thus, this rule is
exempt from UMRA's requirements pertaining to the preparation of a
written statement.
E. Paperwork Reduction Act of 1995
As required by the Paperwork Reduction Act of 1995 (PRA), Public
Law 104-13, 109 Stat. 163, (May 22, 1995) (44 U.S.C. 3501 et seq.),
FEMA may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless FEMA obtains approval
from the Office of Management and Budget (OMB) for the collection and
the collection displays a valid OMB control number. This rule contains
collections of information that are subject to review by OMB. The
information collections included in this rule are approved by OMB under
control number 1660-0076 (Hazard Mitigation Grant Program Application
and Reporting).
This rulemaking calls for no new collections of information under
the PRA. This rule includes information currently collected by FEMA and
approved in OMB information collection 1660-0076. The changes in this
rulemaking do not change the forms, the substance of the forms, or the
number of applicants who would submit the forms to FEMA. No additional
documentation will be required as State, local and Tribal governments
already submit extension requests. However, FEMA estimates additional
flexibilities of this rule will result in a minor cost savings for SLTT
applicants of $3,191 ($223.12 x 14.3 extension requests) per year.
F. Privacy Act/E-Government Act
Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must
determine whether implementation of a proposed regulation will result
in a system of records. A ``record'' is any item, collection, or
grouping of information
[[Page 66251]]
about an individual that is maintained by an agency, including, but not
limited to, their education, financial transactions, medical history,
and criminal or employment history and that contains their name, or the
identifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voice print or a photograph. See 5
U.S.C. 552a(a)(4). A ``system of records'' is a group of records under
the control of an agency from which information is retrieved by the
name of the individual or by some identifying number, symbol, or other
identifying particular assigned to the individual. An agency cannot
disclose any record which is contained in a system of records except by
following specific procedures.
The E-Government Act of 2002, 44 U.S.C. 3501 note, also requires
specific procedures when an agency takes action to develop or procure
information technology that collects, maintains, or disseminates
information that is in an identifiable form. This Act also applies when
an agency initiates a new collection of information that will be
collected, maintained, or disseminated using information technology if
it includes any information in an identifiable form permitting the
physical or online contacting of a specific individual.
A Privacy Threshold Analysis was completed August 3, 2023. FEMA's
OMB information collection 1660-0076 is a privacy-sensitive collection,
requiring PIA coverage and coverage is provided under DHS/FEMA/PIA-006
National Emergency Management Information System Mitigation (MT)
Electronic Grants (eGrants) System, which covers PII that may be
included in grant applications made by states or local communities.\49\
The rule, once enacted, will not change the forms, the substance of the
forms, or the number of applicants who would submit to FEMA's OMB
information collection 1660-0076. The rule will not change the PII data
elements or the amount of PII collected by FEMA. The rule will not
require additional collection of information beyond what is already
documented within the 1660-0076 Hazard Mitigation Grant Program
Application and Reporting Collection PTA. SORN coverage is provided
under DHS/FEMA-009 Hazard Mitigation, which covers PII collected from
individual property owners and/or occupants whose properties are
identified in applications for public assistance, hazard mitigation
assistance, and other disaster-related assistance or who have been
identified by FEMA as candidates for such assistance.\50\
---------------------------------------------------------------------------
\49\ Additional PIA coverage is provided under DHS/FEMA/PIA-031
Authentication and Provisioning Services, which covers PII that APS
collects, uses, maintains, and retrieves about employees,
contractors, members of the public; and Federal, State, local, and
Tribal government officials; and under DHS/FEMA/PIA-026 Operational
Data Store and Enterprise Data Warehouse, which covers PII related
to the production of agency reports for internal use as well as for
external stakeholders via those systems.
\50\ Additional SORN coverage is provided under DHS/ALL-004
GITAARS SORN, which covers user information collected to grant
access to IT systems.
---------------------------------------------------------------------------
G. Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments''
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments,'' 65 FR 67249 (Nov. 9, 2000), applies to agency
regulations that have Tribal implications, that is, regulations that
have substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. Under this Executive Order, to the extent
practicable and permitted by law, no agency shall promulgate any
regulation that has Tribal implications, that imposes substantial
direct compliance costs on Indian Tribal Governments, and that is not
required by statute, unless funds necessary to pay the direct costs
incurred by the Indian Tribal Government in complying with the
regulation are provided by the Federal Government or the agency
consults with Tribal officials. Nor, to the extent practicable by law,
may an agency promulgate a regulation that has Tribal implications and
preempts Tribal law, unless the agency consults with Tribal officials.
This rule involves no policies that have Tribal implications under
Executive Order 13175. Although Indian Tribal Governments are
potentially eligible applicants under HMGP, FEMA has determined this
rulemaking would not have substantial negative direct effects on
citizens of Tribal Nations, on the relationship between the Federal
Government and Indian Tribes, or the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
There is no substantial direct compliance cost associated with this
rule. The HMGP program is a voluntary program that provides funding to
applicants, including Tribal governments, for eligible mitigation
planning and projects that reduce disaster losses and protect life and
property from future disaster damages. An Indian Tribal Government may
participate as either an applicant/recipient or a subapplicant/
subrecipient. FEMA does not expect the regulatory changes in this rule
to disproportionately affect Indian Tribal Governments acting as
applicants.
H. Executive Order 13132, ``Federalism''
Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999),
sets forth principles and criteria that agencies must adhere to in
formulating and implementing policies that have federalism
implications, that is, regulations that have substantial direct effects
on the States, on the relationship between the national government and
the States, or on the distribution of power and responsibilities among
the various levels of government. Federal agencies must closely examine
the statutory authority supporting any action that would limit the
policymaking discretion of the States, and to the extent practicable,
must consult with State and local officials before implementing any
such action.
FEMA has determined that this rulemaking does not have a
substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, and
therefore does not have federalism implications as defined by the
Executive Order. FEMA has determined that this rule does not
significantly affect the rights, roles, and responsibilities of States,
and involves no preemption of State law nor does it limit State
policymaking discretion. This rulemaking amends regulations governing
voluntary grant programs that may be used by State, local and Tribal
governments to fund eligible mitigation activities that reduce disaster
losses and protect life and property from future disaster damages.
States are not required to seek grant funding, and this rulemaking does
not limit their policymaking discretion.
I. Executive Order 11988, ``Floodplain Management''
Executive Order 11988, 42 FR 26951 (May 25, 1977), as amended by
Executive Order 13690, ``Establishing a Federal Flood Risk Management
Standard (FFRMS) and a Process for Further Soliciting and Considering
Stakeholder Input,'' (80 FR 6425, Feb. 4, 2015) and Executive Order
14030, ``Climate-Related Financial Risk,'' (86 FR 27967, May 25, 2021),
requires each Federal agency to provide leadership and take action to
reduce the risk of flood loss, to minimize the impact of floods on
human safety, health and
[[Page 66252]]
welfare, and to restore and preserve the natural and beneficial values
served by floodplains in carrying out its responsibilities for (1)
acquiring, managing, and disposing of Federal lands and facilities; (2)
providing Federally undertaken, financed, or assisted construction and
improvements; and (3) conducting Federal activities and programs
affecting land use, including but not limited to water and related land
resources planning, regulating, and licensing activities. In carrying
out these responsibilities, each agency must evaluate the potential
effects of any actions it may take in a floodplain; ensure that its
planning programs and budget requests reflect consideration of flood
hazards and floodplain management; and prescribe procedures to
implement the policies and requirements of the Executive Order.
Before promulgating any regulation, an agency must determine
whether the proposed regulations will affect a floodplain(s), and if
so, the agency must consider alternatives to avoid adverse effects and
incompatible development in the floodplain(s). If the head of the
agency finds that the only practicable alternative consistent with the
law and with the policy set forth in Executive Order 11988 is to
promulgate a regulation that affects a floodplain(s), the agency must,
prior to promulgating the regulation, design or modify the regulation
to minimize potential harm to or within the floodplain, consistent with
the agency's floodplain management regulations. It must also prepare
and circulate a notice containing an explanation of why the action is
proposed to be located in the floodplain.
The purpose of this rule is to extend the HMGP application period
to allow applicants additional time to submit projects to address the
effects of climate change and other unmet mitigation needs in
communities. In accordance with 44 CFR part 9, ``Floodplain Management
and Protection of Wetlands,'' FEMA determines that the changes in this
rule do not meet the definition of an action that would require
analysis under the 8-step decision-making process.
J. Executive Order 11990, ``Protection of Wetlands''
Executive Order 11990, ``Protection of Wetlands,'' 42 FR 26961 (May
24, 1977) sets forth that each agency must provide leadership and take
action to minimize the destruction, loss, or degradation of wetlands,
and to preserve and enhance the natural and beneficial values of
wetlands in carrying out the agency's responsibilities. These
responsibilities include (1) acquiring, managing, and disposing of
Federal lands and facilities; and (2) providing Federally undertaken,
financed, or assisted construction and improvements; and (3) conducting
Federal activities and programs affecting land use, including but not
limited to water and related land resources planning, regulating, and
licensing activities. Each agency, to the extent permitted by law, must
avoid undertaking or providing assistance for new construction located
in wetlands unless the head of the agency finds (1) that there is no
practicable alternative to such construction, and (2) that the proposed
action includes all practicable measures to minimize harm to wetlands
which may result from such use. In making this finding, the head of the
agency may take into account economic, environmental and other
pertinent factors.
In carrying out the activities described in Executive Order 11990,
each agency must consider factors relevant to a proposal's effect on
the survival and quality of the wetlands. These include public health,
safety, and welfare, including water supply, quality, recharge and
discharge; pollution; flood and storm hazards; sediment and erosion;
maintenance of natural systems, including conservation and long-term
productivity of existing flora and fauna, species and habitat diversity
and stability, hydrologic utility, fish, wildlife, timber, and food and
fiber resources. They also include other uses of wetlands in the public
interest, including recreational, scientific, and cultural uses. The
purpose of this rule is to extend the HMGP application period to allow
applicants additional time to submit projects to address the effects of
climate change and other unmet mitigation needs in communities. In
accordance with 44 CFR part 9, ``Floodplain Management and Protection
of Wetlands,'' FEMA determines that the changes in this rule do not
meet the definition of an action that would require analysis under the
8-step decision-making process.
K. National Environmental Policy Act of 1969 (NEPA)
Section 102 of the National Environmental Policy Act of 1969
(NEPA), Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321
et seq.), as amended, requires Federal agencies to evaluate the impacts
of a proposed major Federal action that may significantly affect the
quality of the human environment, consider alternatives to the proposed
action, provide public notice and opportunity to comment, and properly
document its analysis. DHS and its component agencies analyze proposed
actions to determine whether NEPA applies to them and, if so, what
level of documentation and analysis is required. 40 CFR 1501.3.
DHS Directive 023-01, Rev. 01 and DHS Instruction Manual 023-01-
001-01, Rev. 01 (Instruction Manual) establish the policies and
procedures DHS and its component agencies use to comply with NEPA and
the Council on Environmental Quality (CEQ) regulations for implementing
the procedural requirements of NEPA codified at 40 CFR parts 1500
through 1508. The CEQ regulations allow Federal agencies to establish,
in their NEPA implementing procedures, with CEQ review and concurrence,
categories of actions (``categorical exclusions'') that experience has
shown normally do not, individually or in the aggregate, have a
significant effect on the human environment and, therefore, do not
require preparation of an environmental assessment or environmental
impact statement. 40 CFR 1501.4, 1507.3(c)(8), 1508.1(e). The
Instruction Manual, Appendix A, lists the DHS categorical exclusions.
Under DHS NEPA implementing procedures, for an action to be
categorically excluded it must satisfy each of the following
conditions: (1) the entire action clearly fits within one or more of
the categorical exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect. Instruction Manual,
section V.B.(2)(a-c).
This rule revises regulations at 44 CFR 206.436 to allow FEMA to
extend the Hazard Mitigation Grant Program's application time period
and reopen it in limited circumstances. The revised regulations will
remove barriers to allow additional applications by State, local,
Tribal and territorial governments to be considered. These changes are
strictly administrative and will not result in any change in
environmental effect in the current regulations. Therefore, it clearly
fits within categorical exclusion A3 in Appendix A of the Instruction
Manual.
The rule meets the second condition that it is not a piece of a
larger action. The regulatory application period that is being altered
in this rulemaking only applies to HMGP and will not affect any other
FEMA programs. The rule also meets the third condition because no
extraordinary circumstances exist. Accordingly, this rule is
categorically excluded and no further NEPA analysis or documentation is
required.
[[Page 66253]]
L. Endangered Species Act
Section (7)(a)(2) of the Endangered Species Act mandates that each
Federal agency shall, in consultation with and with the assistance of
the National Marine Fisheries (NMFS) or United States Fish and Wildlife
(USFWS), collectively known as the ``Services,'' insure that any action
authorized, funded, or carried out by such agency is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of habitat of such species which is determined by the Services after
consultation to be critical.
To comply with Section 7(a)(2) of the ESA, for any action that FEMA
proposes to carry out, fund, or authorize, FEMA must determine if its
action may affect a listed species or its critical habitat. If the
action may affect species or its critical habitat, then FEMA must make
one of the following determinations with respect to the effect of the
proposed action on listed species and critical habitat: (1) no effect
(NE); (2) may affect but is not likely to adversely affect (NLAA); or
(3) may affect and is likely to adversely affect (LAA).
This rule has been evaluated by FEMA and due to the administrative
nature, FEMA has determined the rule does not have the potential to
affect federally-listed species or designated critical habitat. As
such, a ``No Effect'' determination has been made for these activities.
Per the ESA regulations, notification to, and consultation with, the
U.S. Fish and Wildlife Service and/or the National Marine Fisheries
Service are not required for activities with a ``No Effect''
determination. 50 CFR 402.
M. National Historic Preservation Act of 1966
The National Historic Preservation Act (NHPA) (54 U.S.C. 300101,
formerly 16 U.S.C. 470) was enacted in 1966, with various amendments
throughout the years. Section 106 of the NHPA (54 U.S.C. 306108)
requires Federal agencies to take into account the effect of their
undertakings on any historic property. It mandates a consultation
process in the early stages of project planning and must be completed
prior to the approval of expenditure of any Federal funds for the
undertaking. Subpart B of 36 CFR part 800 lays out a four-step Section
106 process to fulfill this obligation: (1) initiate the process
(800.3); (2) identify historic properties (800.4); (3) assess adverse
effects (800.5); and (4) resolve adverse effects (800.6).
Pursuant to section 106 of the NHPA and its implementing
regulations at 36 CFR part 800, FEMA has determined that this rule does
not have the potential to cause effects to historic properties and in
accordance with 36 CFR 800.3(a)(1), and FEMA has no further obligations
under section 106.
N. Congressional Review of Agency Rulemaking
Under the Congressional Review of Agency Rulemaking Act (CRA), 5
U.S.C. 801-808, before a rule can take effect, the Federal agency
promulgating the rule must submit to Congress and to the Government
Accountability Office (GAO) a copy of the rule; a concise general
statement relating to the rule, including whether it is a major rule;
the proposed effective date of the rule; a copy of any cost-benefit
analysis; descriptions of the agency's actions under the Regulatory
Flexibility Act and the Unfunded Mandates Reform Act; and any other
information or statements required by relevant executive orders.
FEMA has sent this final rule to the Congress and to GAO pursuant
to the CRA. The rule is not a ``major rule'' within the meaning of the
CRA. It will not have an annual effect on the economy of $100,000,000
or more; it will not result in a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions; and it will not have significant
adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets.
List of Subjects in 44 CFR Part 206
Administrative practice and procedure, Coastal zone, Community
facilities, Disaster assistance, Fire prevention, Grant programs-
housing and community development, Housing, Insurance,
Intergovernmental relations, Loan programs-housing and community
development, Natural resources, Penalties, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, the Federal Emergency
Management Agency amends part 206 as follows:
PART 206--FEDERAL DISASTER ASSISTANCE
0
1. The authority citation for part 206 continues to read as follows:
Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5207; Homeland Security Act
of 2002, 6 U.S.C. 101 et seq.; Department of Homeland Security
Delegation 9001.1; sec. 1105, Pub. L. 113-2, 127 Stat. 43 (42 U.S.C.
5189a note).
0
2. Amend Sec. 206.436 by:
0
a. In paragraph (d), removing the number ``12'' and adding in its place
the number ``15'';
0
b. Revising paragraph (e);
0
c. Redesignating paragraphs (f) and (g) as paragraphs (g) and (h);
0
d. Adding new paragraph (f); and
0
e. Revising newly redesignated paragraph (g).
The revisions and addition read as follows:
Sec. 206.436 Application procedures.
* * * * *
(e) Extensions. Upon written request from the applicant, FEMA may
extend the application submission timeline as follows:
(1) The State may request the Regional Administrator to extend the
application time limit by 30 to 120 day increments, not to exceed a
total of 240 days. The applicant must include a justification in its
request.
(2) FEMA will only consider requests for extensions beyond 240 days
for extenuating circumstances outside of the applicant's control. Such
requests must be submitted to the Regional Administrator and must
include justification. The Regional Administrator, in coordination with
FEMA's Assistant Administrator for the Mitigation Directorate, may
extend the application time limit for a reasonable amount of time based
upon the extenuating circumstances.
(f) Reopening of application period. FEMA's Assistant Administrator
for the Mitigation Directorate may reopen a closed application period
for up to 180 days in the following circumstances:
(1) Recalculation of assistance. If FEMA approves a recalculation
of assistance under Sec. 206.432 and an applicant requests to reopen
the application period within 60 days of FEMA's recalculation approval.
(2) Appeal. If FEMA grants an appeal under Sec. 206.440 for an
application extension denial after an application period is closed.
(g) FEMA approval. The applicant must submit its application and
supplement(s) to the FEMA Regional Administrator for approval. FEMA has
[[Page 66254]]
final approval authority for funding of all projects.
* * * * *
Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2024-17909 Filed 8-14-24; 8:45 am]
BILLING CODE 9111-BW-P | usgpo | 2024-10-08T13:26:20.819777 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-17909.htm"
} |
FR | FR-2024-08-15/2024-16935 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66254-66268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16935]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[WC Docket Nos. 19-195, 11-10; FCC 24-72; FR ID 233875]
Establishing the Digital Opportunity Data Collection; Modernizing
the FCC Form 477 Data Program
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission or FCC) codifies the Broadband Data Collection (BDC)
challenge process deadline as required by the bipartisan Infrastructure
Investment and Jobs Act, delegates authority to the offices and bureaus
to conduct BDC audits, and clarifies that providers must submit
detailed data to seek restoration for those locations or areas on the
National Broadband Map (NBM).
DATES: Effective September 16, 2024.
FOR FURTHER INFORMATION CONTACT: For further information, please
contact, Will Holloway, Broadband Data Task Force, at
[email protected] or (202) 418-2334.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth
Report and Order in WC Docket Nos. 19-195 and 11-10, released on July
12, 2024. The full text of this document is available at the following
internet address: https://www.fcc.gov/document/fcc-takes-steps-update-broadband-data-collection-processes or by using the Commission's EDOCS
web page at www.fcc.gov/edocs.
Paperwork Reduction Act. The Fourth Report and Order rulemaking
required under the Broadband DATA Act is exempt from review by Office
of Management and Budget (OMB) and from the requirements of the
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. As a result,
the Fourth Report and Order will not be submitted to OMB for review
under section 3507(d) of the PRA.
Congressional Review Act. The Commission has determined, and the
Administrator of the Office of Information and Regulatory Affairs,
Office of Management and Budget, concurs, that this rule is ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The
Commission will send a copy of the Fourth Report and Order and
Declaratory Ruling to Congress and the Government Accountability Office
pursuant to 5 U.S.C. 801(a)(1)(A). The Commission will submit the draft
Fourth Report and Order and Declaratory Ruling to the Administrator of
the Office of Information and Regulatory Affairs, Office of Management
and Budget, for concurrence as to whether this rule is ``major'' or
``non-major'' under the Congressional Review Act, 5 U.S.C. 804(2).
Synopsis
A. Codifying the Adjudication Deadlines for Availability Challenges
1. In the Infrastructure Investment and Jobs Act of 2021 (IIJA),
Congress amended the Broadband DATA Act to require the Commission to
resolve any challenges received as part of the BDC ``not later than 90
days after the date on which a final response by a provider to a
challenge to the accuracy of a map . . . is complete.'' Since the
inception of the availability challenge processes, the Commission has
followed this deadline. However, in the Fourth Report and Order we take
steps to codify this deadline and memorialize the Commission's
challenge processes in the BDC rules.
2. The following paragraphs describe how the Commission has
implemented this 90-day deadline for processing fixed and mobile
service challenges, and how we will amend our rules to reflect these
existing practices and the minor modifications to those practices. For
each type of challenge, we indicate the date on which we deem a
provider's response to the challenge to be ``final'' and ``complete''
for purposes of triggering the 90-day deadline required by the IIJA. As
set forth in the proposed rule published elsewhere in this issue of the
Federal Register, we tentatively conclude and seek comment on whether
this deadline should apply to fixed and mobile availability challenges
only, and not to challenges to data in the Fabric.
3. Fixed Service Challenges. For challenges to the accuracy of
fixed broadband availability data and coverage maps, the Commission's
rules currently provide that ``within 60 days of receiving an alert''
to a challenge, ``a provider shall reply in the portal by: (i)
[a]ccepting the allegation(s) raised by the challenger . . . or (ii)
[d]enying the allegation(s) raised by the challenger, in which case the
provider shall provide evidence . . . that the provider serves (or
could and is willing to serve) the challenged location.'' If the
provider accepts the allegations raised by the challenger, the provider
must ``submit a correction for the challenged location in the online
portal within 30 days of its portal reply.'' The rules state that a
provider's failure to respond to the challenge within the applicable
timeframe ``shall result in a finding against the provider.'' ``If the
provider denies the allegation(s) raised by the challenger,'' the rules
state that ``the provider and the challenger shall have 60 days after
the provider submits its reply to attempt to resolve the challenge.''
The rules further provide that if the parties are unable to reach
consensus within 60 days after submission of the provider's reply in
the portal, then the affected provider shall report the status of
efforts to resolve the challenge in the online portal, after which the
Commission will review the evidence and make a determination, either:
(i) in favor of the challenger, in which case the provider shall update
its BDC information within 30 days of the decision; or (ii) in favor of
the provider, in which case the location will no longer be subject to
the ``in dispute/pending resolution'' designation on the coverage maps.
4. To codify the requirements of the IIJA, we amend our rules to
state that in cases where a fixed broadband provider disputes the
allegations raised by the challenger, the response from the provider
will be final and complete when the provider reports on the status of
its efforts to resolve the challenge, at which time, the 90-day
deadline for adjudication of the challenge will begin to run. For
example, if a consumer submits a challenge to a fixed provider's
availability data on February 28 and, after initial review, Commission
staff accepts the challenge and alerts the provider (via the BDC
system) of the challenge on March 1, the service provider would have
until April 30 to either concede or dispute the challenge allegations
(by submitting an ``initial response'' to the challenge in the BDC
system). If the provider disputes the challenge allegation on April 30,
then the parties would have until June 29 to attempt to resolve the
challenge and for the service provider to report on the outcome of
those discussions by submitting a ``final response'' to the challenge
in the BDC system. This status report is the ``final response by [the]
provider.'' Accordingly, if the provider continues to dispute the
challenge in its
[[Page 66255]]
final response (i.e., the challenge has not been resolved by the
parties), the 90-day deadline will commence once the provider submits
its final response. If the provider submits its final response on the
deadline of June 29, Commission staff would thus be required to
adjudicate the challenge no later than September 27.
5. The only challenges that require FCC adjudication are those that
the challenged provider does not concede and for which the challenger
and the challenged provider are unable to reach a consensus. We
therefore find that the deadline for FCC action most appropriately
begins once the provider has submitted its final response reporting on
the status of the parties' efforts to resolve a disputed challenge.
Starting the 90-day period when a provider reports on the status of the
parties' efforts to resolve the challenge, and not earlier, is
consistent with the statutory objective that the adjudication period
begin ``after the date on which a final response by a provider to a
challenge to the accuracy of a map . . . is complete.'' We find that
this process will also help the Commission adjudicate challenges
efficiently because Commission staff will be able to begin the process
of review and adjudication as soon as they have information on the
outcome of the dispute resolution process.
6. The process we outline above is largely consistent with current
Commission practice; however, we modify the existing process in two
respects. First, the 90-day deadline for Commission adjudication of a
fixed challenge will begin on the day after the service provider
submits the status report, regardless of whether that report is
provided on or before the 60th day allowed for under the rules. Our
former practice was to begin the 90-day period on the day after the
deadline for submission of the status report, even when the challenged
provider submits the report prior to the deadline. Based on the
Commission's experience adjudicating challenges, this change in our
process is appropriate in order to more expeditiously adjudicate fixed
challenges when a final status report is filed prior to the end of the
full 60-day period. Second, we clarify that when a provider corrects or
updates its final response before the end of the 60-day resolution
period, the adjudication period will restart upon the date of the
recertification of the final response (unless the Commission has
already adjudicated the challenge prior to the reversion of the final
response).
7. Mobile Service Challenges. The Commission's rules provide that,
for areas with a cognizable challenge to the accuracy of mobile
broadband data and coverage maps, ``providers either must submit a
rebuttal to the challenge within a 60-day period of being notified of
the challenge or concede and have the challenged area identified on the
mobile coverage map as an area that lacks sufficient service.'' The
rules also provide that ``[i]f needed to ensure an adequate review,
[Office of Economics and Analytics (OEA)] may also require that the
provider submit other data in addition to the data initially submitted
. . . .'' This supplemental data must be submitted within 60 days of
OEA's request.
8. We amend our mobile service challenge rules to provide that,
when a mobile provider disputes a challenge, the provider's response
will be final and complete on the 60th day after the provider is
notified of the challenge (i.e., the deadline for submitting challenge
rebuttal data). The 90-day adjudication deadline required under the
IIJA will begin to run on the day after the deadline for submitting the
challenge rebuttal data, and this will also apply in cases where a
provider responds to a challenge sooner than 60 days after it is
notified of the challenge. In cases where Commission staff request
supplemental data from a provider after receiving the provider's
initial response, the adjudication period will restart the day after
the deadline by which the supplemental data is due to the Commission
(within 60 days of the request for supplemental data). Initiating the
adjudication period the day after the deadline for submitting the
challenge rebuttal data, or the day after any supplemental data
requested by staff is due, will ensure that the Commission has
sufficient information to adjudicate challenges and will create
administrative efficiencies by synchronizing the timing for resolving
challenges with the monthly notifications we issue to providers
regarding the status of challenged areas. We recognize that we are
adopting different procedures for calculating the adjudication deadline
for mobile availability challenges than for fixed challenges. However,
this difference is justified because the data involved in submitting
fixed and mobile challenges differ considerably, as do the
methodologies for staff review and adjudication of fixed and mobile
challenges. Mobile challenges are created through on-the-ground speed
test data and, in most cases, mobile service providers respond to
challenges using similar on-the-ground speed test data--both of which
are submitted into the BDC system in a structured format. The BDC
system performs analyses of these speed test results based upon
hexagonal areas, and Commission staff use the results of these analyses
to determine whether or not a challenge should be upheld or overturned.
In contrast, fixed availability challenges are based upon a variety of
Challenge Category Codes, with a large degree of variation in the types
of evidence and information submitted both to create a challenge as
well as by fixed providers in seeking to overturn challenges. We note
that, under the process we adopt in the Fourth Report and Order, mobile
challenges will be resolved considerably more quickly in most instances
than the time allowed under the deadline due to the methodology used to
review and process mobile challenge data. Accordingly, we believe that
this different treatment of mobile and fixed challenge review and
adjudication is warranted.
B. Audits
9. Background. The Broadband DATA Act requires the Commission to
verify the accuracy of the data reported by broadband internet access
service providers. The Act also requires that the Commission conduct
regular audits of the information submitted by providers in the BDC.
Under the Commission's rules, the Commission must ``conduct regular
audits of the information submitted by providers in their [BDC]
filings,'' which ``(1) [m]ay be random, as determined by the
Commission; or (2) [c]an be required in cases where there may be
patterns of filing incorrect information, as determined by the
Commission.'' In the Second Report and Order (85 FR 50886, August 18,
2020), the Commission determined that it will audit availability data
and other information submitted by all types of providers of broadband
internet access service (e.g., mobile and terrestrial fixed wireless,
fixed wired, and satellite). The Commission further specified that
audit tools will include field surveys, investigations, and annual
random audits to verify data accuracy, and that audits may additionally
be initiated based on an unusual number of crowdsourced complaints.
10. The Commission has implemented its statutory obligations to
verify the accuracy of the data reported in biannual BDC submissions in
a variety of ways. As an initial matter, the Commission developed an
entirely new system for ingesting, validating, and aggregating provider
availability data for publication on the NBM. The new BDC system
requires all data to be submitted in a structured format according to
[[Page 66256]]
rigorous data specifications and imposes comprehensive data-quality
checks at the time data is uploaded and submitted into the BDC. These
checks identify either ``hard'' errors that require a correction by the
filer prior to certifying and submitting the data, or ``soft'' flags
that alert the filer to a potential anomaly or error and requires an
explanation if no change to the data is made. These measures ensure
that service providers file higher-quality data.
11. After the close of each biannual BDC filing window, Commission
staff conduct verifications of the submitted data to test their
accuracy and reliability. These efforts include: review of the ``soft''
system flags, supporting data submitted in conjunction with
availability data, and other filer data to identify potential anomalies
or errors; outreach to filers based upon these reviews requesting their
correction or explanation of the data; and vetting of subsequent
changes to or explanations of the data by providers. Commission staff
have performed several thousand data verifications using this process.
In addition, Commission staff have initiated formal verification
inquiries of the data submitted by certain fixed and mobile broadband
providers. In response to such inquiries, providers have been required
to submit explanation information relevant to the inquiry, such as
network infrastructure data for the targeted verification area.
12. In addition to these verifications, Commission staff have
initiated audits of discrete coverage areas within the service
availability reported by several mobile service providers. OEA and
Wireless Telecommunications Bureau (WTB) staff have conducted these
audits in coordination with the Broadband Data Task Force, Enforcement
Bureau, Office of Engineering and Technology (OET), and Commission
leadership. Commission staff have conducted two variations of mobile
audits to date. The first involve on-the-ground testing of mobile
service performance in resolution 8 hexagonal cells (``hex areas'')
within a single county. Commission staff, in coordination with its
third-party contractors, selected the target county to audit and
conducted on-the-ground testing based upon a variety of factors,
including the number of service providers who claim some amount of
network coverage in the county, the number of accessible hex areas in
the county, the population density of the county, and the marginal
coverage in the area. The second variation of audits involves requests
for infrastructure data from service providers for a handful of
randomly selected counties. These counties were selected using several
of the factors used to identify areas for on-the-ground testing as well
as other factors, such as the geography and topography of the counties.
13. To standardize the types of information the Commission requests
through formal verification inquires and the second variation of mobile
audits, as well as to provide transparency and certainty to service
providers, the Commission has released an updated data specification
for provider infrastructure data submitted in the challenge,
verification, and audit processes. This data specification sets forth
standardized, structured data that all service providers (fixed
wireline, terrestrial fixed wireless, mobile wireless, and satellite)
should be prepared to submit in response to verification inquiries and
audits (as well as in response to challenges in instances where mobile
wireless service providers are able to respond to mobile challenges
with infrastructure data).
14. Discussion. Notwithstanding the clear mandates in the Broadband
DATA Act, the Second Report and Order, and the Commission's rules that
we verify and audit availability data as part of the BDC, we take this
opportunity to clarify the procedural mechanics of our audit rules.
Accordingly, we begin by formally delegating authority to OEA, in
coordination with WTB, the Wireline Competition Bureau (WCB), and the
Space Bureau (SB), to continue to perform audits using the processes
and data specifications currently available. We also reaffirm the
authority of OEA, in coordination with the relevant bureaus and
offices, to continue performing fixed and mobile data verifications
using existing methods or any other methods and data specifications it
may develop in the future for verifying availability data. We direct
OEA, in coordination with WTB, WCB, and SB, to establish methodologies
and procedures for selecting service providers (either fixed or mobile)
and targeted locations or areas subject to random audit, as well as for
determining ``patterns of filing incorrect information'' sufficient to
warrant an audit. In the latter case--as well as in the case of
verification inquiries--the methodology(ies) will continue to be based
on anomalies or inconsistencies in the data a provider submits as part
of its biannual submission and/or information submitted through, or
behavior demonstrated in, the availability challenge processes or
crowdsource submissions.
15. This delegation of authority specifically includes the
authority to identify and select specific providers and geographic
areas or Broadband Serviceable Locations subject to formal verification
or audit. As part of this delegation, OEA is vested with authority to
develop processes or procedures for randomly selecting geographic areas
or locations to audit, as well as for determining ``cases where there
may be patterns of filing incorrect information,'' consistent with our
rules. OEA, in coordination with WTB, WCB, and SB, is best qualified to
make individualized determinations of the areas or locations that
should be audited (subject to the conditions in Sec. 1.7006(a)
outlined above), given its subject-matter expertise in reviewing the
underlying availability data and its understanding of resources (e.g.,
budget, staff time) available to perform audits.
16. We further delegate authority to OEA, in coordination with WTB,
WCB, and SB (as appropriate), to collect all data required to conduct a
thorough and complete audit, including, but not limited to, the
information set forth in the BDC Infrastructure Data Specification, on-
the-ground mobile performance data (in the case of audits of mobile
coverage areas), and any other data OEA determines are necessary to
assess an entity's claims that it makes service available to audited
locations or areas. This authority permits OEA, in coordination with
the relevant bureaus and offices, to use third-party contractors to
gather and analyze the collected data, subject to the requirement that
Commission staff supervise and direct any third-party contractors used
to gather or analyze the data.
C. Ministerial Changes
17. The part 1, subpart V rules in title 47 refer to the ``Digital
Opportunity Data Collection'' or ``DODC.'' This is the name formerly
given to the data collection that the Commission now refers to as the
Broadband Data Collection or BDC. In the Fourth Report and Order, we
make ministerial changes to our rules to replace references to the
``Digital Opportunity Data Collection'' or ``DODC'' with references to
the Broadband Data Collection or BDC, as appropriate. These rule
amendments are exempt from notice-and-comment requirements of the
Administrative Procedure Act (APA) because they are procedural rules
that ``do not themselves alter the rights or interests of parties.''
Notice and comment for these rule changes are also unnecessary because
the edits are non-substantive and have no impact on regulated parties
or the public.
[[Page 66257]]
I. Declaratory Ruling
A. Restoration of Locations and Areas Removed Through Availability
Challenges, Audits and Verifications
18. We next issue a declaratory ruling clarifying that providers
must submit more detailed data in subsequent BDC filings when claiming
availability for locations or areas that were previously removed
through the challenge, verification or audit processes. In doing so, we
specify the types of existing data specifications for demonstrating
availability at previously removed locations or areas for certain types
of challenges. The Broadband DATA Act required that the Commission
adopt rules for ``the biannual collection and dissemination of granular
data . . . relating to the availability and quality of service with
respect to terrestrial fixed, fixed wireless, satellite, and mobile
broadband internet access service,'' and ``processes through which the
Commission can verify the accuracy of data'' submitted by broadband
service providers. The Broadband DATA Act recognizes that, due to
ongoing changes in the availability of internet services across the
United States and its Territories, the Broadband Data Collection is an
iterative process and that the NBM must be updated regularly with
refreshed data to reflect the on-the-ground reality of mass-market
broadband availability. Providers must therefore report availability
data as of June 30 and December 31 of each year, which may include
expanded coverage since the provider's last filing (due, for example,
to build-out of additional infrastructure since the previous
submission) and, in some cases, reduced coverage (due, for example, to
the retirement of discontinued technologies or infrastructure, or to
network capacity constraints preventing the connection of new
customers).
19. We clarify that in cases where a provider's claimed
availability at a location (in the case of a fixed provider) or in an
area (in the case of a mobile provider) is removed from the NBM as the
result of a lost or conceded challenge, a verification inquiry, or an
audit (together, a ``Removed Location or Area''), our rules require the
provider to submit updated availability data in a subsequent BDC filing
if it can demonstrate that it can make service available to the Removed
Location or Area. We interpret the Commission's rules, as well as our
statutory obligation to verify the accuracy of the data displayed on
the NBM, to require a restoration process for Removed Locations or
Areas in order to ensure that the data on the NBM remain accurate and
to improve the usefulness of the coverage maps. In so doing, we
delegate authority to OEA, in coordination with WCB, WTB, OET, and SB,
to develop detailed data specifications setting out the categories of
information a provider must submit when seeking to restore a previously
Removed Location or Area through a subsequent BDC filing.
20. If a provider's reported availability at a location or in an
area is removed from the NBM as the result of a verification, audit, or
challenge, a Removed Location or Area is created in the BDC system. The
ways in which these Removed Locations or Areas are generated is
described below.
21. Verifications and Audits. As discussed above, the Commission
has robustly implemented its statutory obligations to verify the
accuracy and reliability of broadband availability data that providers
submit to the Commission and to audit provider-reported availability
data. If, in response to a Commission-initiated verification or audit,
a provider is unable to submit sufficient information supporting its
reported coverage at a location or area, the verification or audit may
lead to a Removed Location or Area, which would include all or part of
the area subject to the verification or audit.
22. Service Availability Challenges. The Broadband DATA Act
directed the Commission to ``establish a user-friendly challenge
process through which consumers, State, local, and Tribal governmental
entities, and other entities or individuals may submit coverage data to
the Commission to challenge the accuracy of'' the information on the
NBM. In the Third Report and Order (86 FR 18124, April 7, 2021), the
Commission adopted rules establishing the fixed availability challenge
process, including the procedures the Commission uses to resolve fixed
availability challenges. Similarly, the Commission adopted rules for
challenges to mobile wireless coverage data based upon lack of service
or poor service quality, such as slow delivered speeds.
23. A service availability challenge may result in a Removed
Location or Area for several reasons. First, a provider may
affirmatively concede a challenge. Second, a provider's failure to
respond to a challenge within the applicable timeframes results in a
finding against the provider, thereby leading to an automatic
concession. An automatic concession may be (i) intentional, because the
provider agrees with the challenger and chooses to allow the challenge
to automatically result in a finding against that provider or (ii)
unintentional, due to a missed deadline, a misunderstanding of the BDC
processes, or some other act or omission. Finally, a fixed or mobile
availability challenge could be adjudicated by the FCC in the
challenger's favor. When a provider concedes or loses a challenge, it
must update its availability data to align with the lost or conceded
challenge and certify the updated data; the location or area lost or
conceded as a result of the challenge process thereby constitutes a
Removed Location or Area.
24. Since the launch of the NBM on November 18, 2022, the
verification, audit, and challenge processes have been active and have
led to meaningful updates to the map. In just the first year following
the map's launch, approximately 3.7 million fixed availability
challenges were accepted and submitted to providers for response,
resulting in more than 2.5 million updates to the fixed availability
data on the NBM. In approximately the same timeframe, 35 cognizable
mobile challenges resulted in 18 corrections to mobile wireless
coverage data on the NBM. To date, FCC staff have initiated thousands
of fixed data verification inquiries, as well as audits, which have
resulted in updates to hundreds of provider submissions. These
processes are open and ongoing, and new verification efforts, audits,
and challenges are regularly initiated and resolved. Meanwhile,
significant Federal investments in broadband infrastructure have been
either awarded or deployed since the launch of the NBM, which will
produce meaningful expansions of broadband availability across the
United States and Territories.
25. Given the various ways in which broadband service availability
can both expand and contract, it is entirely possible, and in fact,
very likely, that a provider who previously reported mass-market
broadband internet service available at a Removed Location or Area may
subsequently make such service available to the Removed Location or
Area. It is critical that the BDC be able to capture these types of
developments in broadband availability over time.
B. Legal Authority for Implementing Location Restoration
26. Pursuant to the Act, the BDC captures changes in broadband
availability data over time to ensure that the NBM remains accurate.
Each BDC filing is a snapshot of broadband availability on a particular
date, and each verification, audit, and/or challenge is applicable to
availability information at that particular time. However, Removed
Locations or Areas
[[Page 66258]]
``persist'' from one BDC filing to the next, in order to promote active
participation in the challenge, verification, and audit processes by
service providers and to alleviate the need for challengers and the
Commission to repeatedly correct previously adjudicated locations or
areas. Therefore, it is essential that providers submit updated data
into the BDC for Removed Locations and Areas, and that the BDC provide
an efficient, standardized way for the NBM to reflect where a provider
reports in a subsequent filing that it can make service available at a
previously Removed Location or Area. Without such a requirement or
pathway to restore Removed Locations or Areas, the NBM would become
outdated, and therefore less accurate--contrary to both Congress's and
the Commission's intent.
27. Accordingly, we clarify that the requirement that BDC ``filings
shall be made each year on or before March 1 (reporting data as of
December 31 of the prior year) and September 1 (reporting data as of
June 30 of the current year)'' includes an obligation that providers
submit data on service availability to Removed Locations or Areas.
Because the BDC rules require providers to report their broadband
availability data accurately for each filing round and certify that
those filings are accurate, it would be a violation of the Commission's
rules for a provider to not report coverage at a Removed Location or
Area where it now makes service available.
28. Requiring updates based upon changed circumstances is
consistent with our statutory obligation to ``establish . . . processes
through which the Commission can verify the accuracy of the data
submitted'' by service providers in the BDC. This includes a process
for verifying data submitted through the challenge process ``in order
to ensure the reliability of that data.'' The Broadband DATA Act cannot
hold its intended purpose if a service provider is not required to and
does not have a pathway for reporting service availability to a
location that, though previously unserved, is now capable of receiving
the reported service. Clarifying this requirement, and establishing a
pathway for restoring a previously Removed Location or Area improves
the usefulness of the coverage maps by ensuring that the data on the
NBM are timely and accurate. As noted by CTIA--The Wireless
Association, where a provider has completed new deployments, service
upgrades, or otherwise added more capacity to its network, the BDC must
allow that provider to include those locations in a subsequent filing;
without such a mechanism to restore these locations, the NBM would be
underinclusive and could cause confusion for consumers.
29. Moreover, clarifying this requirement and establishing a
pathway for reporting Removed Locations or Areas is consistent with
prior Commission direction in the context of mobile wireless coverage
data submissions. The Commission previously contemplated that changed
circumstances could lead to improved coverage at an area previously
lost by a mobile wireless provider in the mobile challenge process. In
the Third Report and Order, the Commission stated that if a mobile
provider ``that has failed to rebut a challenge subsequently takes
remedial action to improve coverage at the location of the challenge,
the provider must notify the Commission of the actions it has taken to
improve its coverage and provide either on-the-ground test data or
infrastructure data to verify its improved coverage.'' While the
Commission did not include similar language regarding fixed challenges,
the rationale applies equally to both types of broadband services: if a
provider lost or conceded a challenge but the provider is now able to
produce additional evidence supporting its claim that it can make
broadband service available at the previously Removed Location or Area,
the BDC must implement a pathway to restoration.
30. We make clear that the obligation to submit updated data in
subsequent filings extends to locations and areas that were removed
because the provider previously failed to participate in the challenge
processes or provided insufficient evidence in response to the
challenge. For example, where a provider automatically conceded a
challenge due to a misunderstanding of our rules or the BDC system, it
is possible that the provider actually made service available at the
resulting Removed Location or Area at the time the challenge was
submitted. Similarly, because FCC adjudications are limited to the
evidence submitted by the challenger and the provider, a challenge
could be upheld due to insufficient evidence submitted by the provider
in response to the challenge, even if the provider actually makes
service available at the Removed Locations or Areas. In all of these
instances, in order for the NBM to accurately reflect, on an ongoing
basis, the broadband services that are available at each location or
area, we must require providers to submit updated data and establish a
pathway for restoring a Removed Location or Area.
C. Data Requirements for Restoration
31. In order to preserve the integrity of the challenge processes,
including our obligation under the Broadband DATA Act to ``mitigate the
time and expense incurred by, and the administrative burdens placed on,
entities and individuals'' in our challenge processes, providers must
submit data to support a request in a subsequent availability filing to
include a Removed Location or Area. Further, a data requirement
mitigates the administrative burdens on the Commission to conduct
verifications and audits of data submitted by providers at Removed
Locations or Areas in subsequent filings.
32. Specifically, a provider must submit detailed information
demonstrating that it can now make service available at the Removed
Location or Area. The data elements included in the Data Specifications
for Provider Infrastructure Data in the Challenge, Verification, and
Audit Processes are indicative of the kind of information that we
expect to be persuasive in the restoration of locations or areas
removed from the NBM as a result of the challenge process, verification
inquiries or audits, where infrastructure data would be relevant.
Providers are already familiar with these existing data specifications,
and for the most part already retain this information. Specifically,
fixed provider infrastructure data would be relevant for consumer and
bulk fixed availability challenges lost under Challenge Category Codes
4, 5, 6, 8, or 9, and bulk fixed availability challenges lost under
Challenge Category Codes 1 or 2. Additionally, mobile provider
infrastructure data would be informative when providers seek to restore
coverage areas lost in the mobile challenge process as well as removed
in response to verification inquiries or audits. While these existing
data specifications are persuasive for restoration of locations and
areas previously removed based on the above-referenced challenge codes,
these data are not relevant to all challenge codes. Further, these data
specifications do not include speed test data for mobile service. We,
therefore, seek comment, in the proposed rule published elsewhere in
this issue of the Federal Register, on what information commenters
believe would be persuasive in the restoration of fixed availability
data removed from the NBM under the remaining Challenge Category Codes,
as well as the potential use of on-the-ground speed test data for
restoration of mobile coverage areas.
[[Page 66259]]
33. We additionally clarify that the data requirements for
restoring a provider's availability to a previously Removed Location or
Area are distinct from the rules and standards governing availability
challenges. A provider's restored availability information can be
subsequently challenged in accordance with rule Sec. 1.7006(d) (for
fixed availability data) and (e) and (f) (for mobile availability
data).
34. We direct OEA, in consultation with WCB, WTB, OET, and SB, to
develop and publish data specifications detailing the information a
provider must submit when seeking to restore a previously Removed
Location or Area through a subsequent BDC filing--starting with the
infrastructure data included in the Data Specifications for Provider
Infrastructure Data in the Challenge, Verification, and Audit
Processes. We also direct OEA, in consultation with the other named
bureaus and offices, to make the necessary system changes to implement
the clarifications in the Declaratory Ruling. After the data
specifications are published, a provider may upload the specific
information necessary to restore a Removed Location or Area in the BDC
system. Where Commission staff deems that information sufficient to
demonstrate availability, the location or area will be restored on the
National Broadband Map.
II. Final Regulatory Flexibility Analysis
35. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Establishing the Digital Opportunity Data
Collection; Modernizing the FCC Form 477 Data Program, Digital
Opportunity Data Collection Third Further Notice of Proposed Rulemaking
(Third FNPRM) released in July 2020 (85 FR 50911, August 18, 2020). The
Federal Communications Commission (Commission) sought written public
comment on the proposals in the Third FNPRM, including comments on the
IRFA. No comments were filed addressing the IRFA. This Final Regulatory
Flexibility Analysis (FRFA) conforms to the RFA.
A. Need for, and Objectives of, the Final Rules
36. In the Fourth Report and Order, the Commission takes steps to
adopt certain requirements mandated by the Broadband DATA Act, as well
as adopting improvements to the data collection. Specifically, the
Fourth Report and Order modifies the Broadband Data Collection (BDC)
rules to codify expedited challenge adjudication deadlines as required
by the Infrastructure Investment and Jobs Act (IIJA), such as a 90-day
deadline for fixed services challenges, as well as provide a specific
delegation of authority to the Office of Economics and Analytics (OEA),
in coordination with certain other bureaus and offices, to conduct
audits of broadband data submitted by providers (as required under the
Broadband DATA Act). Through the adoption of these rules, the
Commission is implementing targeted changes that further address its
long-standing objective of working towards closing the digital divide
by improving the processes for filers, some of whom consist of small
entities.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
37. There were no comments filed that specifically addressed the
rules and policies proposed in the IRFA.
C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
38. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments. The Chief Counsel did not
file comments in response to the proposed rules in this proceeding.
D. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
39. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small-business concern'' under the Small Business
Act.'' A ``small-business concern'' is one which: (1) is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the SBA.
40. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time, may affect small entities that
are not easily categorized at present. We therefore describe, at the
outset, three broad groups of small entities that could be directly
affected herein. First, while there are industry specific size
standards for small businesses that are used in the regulatory
flexibility analysis, according to data from SBA's Office of Advocacy,
in general a small business is an independent business having fewer
than 500 employees. These types of small businesses represent 99.9% of
all businesses in the United States, which translates to 33.2 million
businesses.
41. Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000
or less to delineate its annual electronic filing requirements for
small exempt organizations. Nationwide, for tax year 2022, there were
approximately 530,109 small exempt organizations in the U.S. reporting
revenues of $50,000 or less according to the registration and tax data
for exempt organizations available from the IRS.
Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' U.S. Census
Bureau data from the 2022 Census of Governments indicate there were
90,837 local governmental jurisdictions consisting of general purpose
governments and special purpose governments in the United States. Of
this number, there were 36,845 general purpose governments (county,
municipal, and town or township) with populations of less than 50,000
and 11,879 special purpose governments (independent school districts)
with enrollment populations of less than 50,000. Accordingly, based on
the 2022 U.S. Census of Governments data, we estimate that at least
48,724 entities fall into the category of ``small governmental
jurisdictions.''
42. Broadband internet Access Service Providers. The broadband
internet access service provider industry has changed since the
definition was introduced in 2007. The data cited below may therefore
include entities that no longer provide broadband internet access
service and may exclude entities that now provide such service. To
ensure that this FRFA describes the universe of small entities that our
action might affect, we discuss in turn several different types of
entities that might be providing broadband internet access
[[Page 66260]]
service. We note that, although we have no specific information on the
number of small entities that provide broadband internet access service
over unlicensed spectrum, we included these entities in our Initial
Regulatory Flexibility Analysis.
43. Wired Broadband internet Access Service Providers (Wired ISPs).
Providers of wired broadband internet access service include various
types of providers except dial-up internet access providers. Wireline
service that terminates at an end user location or mobile device and
enables the end user to receive information from and/or send
information to the internet at information transfer rates exceeding 200
kilobits per second (kbps) in at least one direction is classified as a
broadband connection under the Commission's rules. Wired broadband
internet services fall in the Wired Telecommunications Carriers
industry. The SBA small business size standard for this industry
classifies firms having 1,500 or fewer employees as small. U.S. Census
Bureau data for 2017 show that there were 3,054 firms that operated in
this industry for the entire year. Of this number, 2,964 firms operated
with fewer than 250 employees.
44. Additionally, according to Commission data on internet access
services as of June 30, 2019, nationwide there were approximately 2,747
providers of connections over 200 kbps in at least one direction using
various wireline technologies. The Commission does not collect data on
the number of employees for providers of these services, therefore, at
this time we are not able to estimate the number of providers that
would qualify as small under the SBA's small business size standard.
However, in light of the general data on fixed technology service
providers in the Commission's 2022 Communications Marketplace Report,
we believe that the majority of wireline internet access service
providers can be considered small entities.
45. Internet Service Providers (Non-Broadband). Internet access
service providers using client-supplied telecommunications connections
(e.g., dial-up ISPs) as well as Voice over internet Protocol (VoIP)
service providers using client-supplied telecommunications connections
fall in the industry classification of All Other Telecommunications.
The SBA small business size standard for this industry classifies firms
with annual receipts of $35 million or less as small. For this
industry, U.S. Census Bureau data for 2017 show that there were 1,079
firms in this industry that operated for the entire year. Of those
firms, 1,039 had revenue of less than $25 million. Consequently, under
the SBA size standard a majority of firms in this industry can be
considered small.
46. Wireline Providers.
47. Wired Telecommunications Carriers. The U.S. Census Bureau
defines this industry as establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired communications networks. Transmission
facilities may be based on a single technology or a combination of
technologies. Establishments in this industry use the wired
telecommunications network facilities that they operate to provide a
variety of services, such as wired telephony services, including VoIP
services, wired (cable) audio and video programming distribution, and
wired broadband internet services. By exception, establishments
providing satellite television distribution services using facilities
and infrastructure that they operate are included in this industry.
Wired Telecommunications Carriers are also referred to as wireline
carriers or fixed local service providers.
48. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.
Additionally, based on Commission data in the 2022 Universal Service
Monitoring Report, as of December 31, 2021, there were 4,590 providers
that reported they were engaged in the provision of fixed local
services. Of these providers, the Commission estimates that 4,146
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
49. Local Exchange Carriers (LECs). Neither the Commission nor the
SBA has developed a size standard for small businesses specifically
applicable to local exchange services. Providers of these services
include both incumbent and competitive local exchange service
providers. Wired Telecommunications Carriers is the closest industry
with an SBA small business size standard. Wired Telecommunications
Carriers are also referred to as wireline carriers or fixed local
service providers. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.
Additionally, based on Commission data in the 2022 Universal Service
Monitoring Report, as of December 31, 2021, there were 4,590 providers
that reported they were fixed local exchange service providers. Of
these providers, the Commission estimates that 4,146 providers have
1,500 or fewer employees. Consequently, using the SBA's small business
size standard, most of these providers can be considered small
entities.
50. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the
Commission nor the SBA have developed a small business size standard
specifically for incumbent local exchange carriers. Wired
Telecommunications Carriers is the closest industry with an SBA small
business size standard. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms in this industry that operated for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.
Additionally, based on Commission data in the 2022 Universal Service
Monitoring Report, as of December 31, 2021, there were 1,212 providers
that reported they were incumbent local exchange service providers. Of
these providers, the Commission estimates that 916 providers have 1,500
or fewer employees. Consequently, using the SBA's small business size
standard, the Commission estimates that the majority of incumbent local
exchange carriers can be considered small entities.
51. Competitive Local Exchange Carriers (CLECs). Neither the
Commission nor the SBA has developed a size standard for small
businesses specifically applicable to local exchange services.
Providers of these services include several types of competitive local
exchange service providers. Wired Telecommunications Carriers is the
closest industry with an SBA small business size standard. The SBA
small business size standard for Wired Telecommunications Carriers
classifies firms having 1,500 or fewer employees as small. U.S. Census
Bureau data for 2017 show that there were 3,054 firms that operated in
this industry for the entire year. Of this number, 2,964 firms operated
with fewer than 250
[[Page 66261]]
employees. Additionally, based on Commission data in the 2022 Universal
Service Monitoring Report, as of December 31, 2021, there were 3,378
providers that reported they were competitive local exchange service
providers. Of these providers, the Commission estimates that 3,230
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
52. Interexchange Carriers (IXCs). Neither the Commission nor the
SBA have developed a small business size standard specifically for
Interexchange Carriers. Wired Telecommunications Carriers is the
closest industry with an SBA small business size standard. The SBA
small business size standard for Wired Telecommunications Carriers
classifies firms having 1,500 or fewer employees as small. U.S. Census
Bureau data for 2017 show that there were 3,054 firms that operated in
this industry for the entire year. Of this number, 2,964 firms operated
with fewer than 250 employees. Additionally, based on Commission data
in the 2022 Universal Service Monitoring Report, as of December 31,
2021, there were 127 providers that reported they were engaged in the
provision of interexchange services. Of these providers, the Commission
estimates that 109 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, the
Commission estimates that the majority of providers in this industry
can be considered small entities.
53. Operator Service Providers (OSPs). Neither the Commission nor
the SBA has developed a small business size standard specifically for
operator service providers. The closest applicable industry with an SBA
small business size standard is Wired Telecommunications Carriers. The
SBA small business size standard classifies a business as small if it
has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 3,054 firms in this industry that operated for the
entire year. Of this number, 2,964 firms operated with fewer than 250
employees. Additionally, based on Commission data in the 2022 Universal
Service Monitoring Report, as of December 31, 2021, there were 20
providers that reported they were engaged in the provision of operator
services. Of these providers, the Commission estimates that all 20
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, all of these providers can be considered
small entities.
54. Other Toll Carriers. Neither the Commission nor the SBA has
developed a definition for small businesses specifically applicable to
Other Toll Carriers. This category includes toll carriers that do not
fall within the categories of interexchange carriers, operator service
providers, prepaid calling card providers, satellite service carriers,
or toll resellers. Wired Telecommunications Carriers is the closest
industry with an SBA small business size standard. The SBA small
business size standard for Wired Telecommunications Carriers classifies
firms having 1,500 or fewer employees as small. U.S. Census Bureau data
for 2017 show that there were 3,054 firms in this industry that
operated for the entire year. Of this number, 2,964 firms operated with
fewer than 250 employees. Additionally, based on Commission data in the
2022 Universal Service Monitoring Report, as of December 31, 2021,
there were 90 providers that reported they were engaged in the
provision of other toll services. Of these providers, the Commission
estimates that 87 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
55. Wireless Providers--Fixed and Mobile.
56. The broadband internet access service provider category covered
by these new rules may cover multiple wireless firms and categories of
regulated wireless services. Thus, to the extent the wireless services
listed below are used by wireless firms for broadband internet access
service, the actions may have an impact on those small businesses as
set forth above and further below. In addition, for those services
subject to auctions, we note that, as a general matter, the number of
winning bidders that claim to qualify as small businesses at the close
of an auction does not necessarily represent the number of small
businesses currently in service. Also, the Commission does not
generally track subsequent business size unless, in the context of
assignments and transfers or reportable eligibility events, unjust
enrichment issues are implicated.
57. Wireless Telecommunications Carriers (except Satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves. Establishments in this industry have spectrum licenses and
provide services using that spectrum, such as cellular services, paging
services, wireless internet access, and wireless video services. The
SBA size standard for this industry classifies a business as small if
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 2,893 firms in this industry that operated for the
entire year. Of that number, 2,837 firms employed fewer than 250
employees. Additionally, based on Commission data in the 2022 Universal
Service Monitoring Report, as of December 31, 2021, there were 594
providers that reported they were engaged in the provision of wireless
services. Of these providers, the Commission estimates that 511
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
58. Wireless Communications Services. Wireless Communications
Services (WCS) can be used for a variety of fixed, mobile,
radiolocation, and digital audio broadcasting satellite services.
Wireless spectrum is made available and licensed for the provision of
wireless communications services in several frequency bands subject to
part 27 of the Commission's rules. Wireless Telecommunications Carriers
(except Satellite) is the closest industry with an SBA small business
size standard applicable to these services. The SBA small business size
standard for this industry classifies a business as small if it has
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that
there were 2,893 firms that operated in this industry for the entire
year. Of this number, 2,837 firms employed fewer than 250 employees.
Thus, under the SBA size standard, the Commission estimates that a
majority of licensees in this industry can be considered small.
59. The Commission's small business size standards with respect to
WCS involve eligibility for bidding credits and installment payments in
the auction of licenses for the various frequency bands included in
WCS. When bidding credits are adopted for the auction of licenses in
WCS frequency bands, such credits may be available to several types of
small businesses based average gross revenues (small, very small and
entrepreneur) pursuant to the competitive bidding rules adopted in
conjunction with the requirements for the auction and/or as identified
in the designated entities section in part 27 of the Commission's rules
for the specific WCS frequency bands.
60. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the
[[Page 66262]]
number of winning bidders that qualify as small businesses at the close
of an auction does not necessarily represent the number of small
businesses currently in service. Further, the Commission does not
generally track subsequent business size unless, in the context of
assignments or transfers, unjust enrichment issues are implicated.
Additionally, since the Commission does not collect data on the number
of employees for licensees providing these services, at this time we
are not able to estimate the number of licensees with active licenses
that would qualify as small under the SBA's small business size
standard.
61. 1670-1675 MHz Services. These wireless communications services
can be used for fixed and mobile uses, except aeronautical mobile.
Wireless Telecommunications Carriers (except Satellite) is the closest
industry with an SBA small business size standard applicable to these
services. The SBA size standard for this industry classifies a business
as small if it has 1,500 or fewer employees. U.S. Census Bureau data
for 2017 show that there were 2,893 firms that operated in this
industry for the entire year. Of this number, 2,837 firms employed
fewer than 250 employees. Thus, under the SBA size standard, the
Commission estimates that a majority of licensees in this industry can
be considered small.
62. According to Commission data as of November 2021, there were
three active licenses in this service. The Commission's small business
size standards with respect to 1670-1675 MHz Services involve
eligibility for bidding credits and installment payments in the auction
of licenses for these services. For licenses in the 1670-1675 MHz
service band, a ``small business'' is defined as an entity that,
together with its affiliates and controlling interests, has average
gross revenues not exceeding $40 million for the preceding three years,
and a ``very small business'' is defined as an entity that, together
with its affiliates and controlling interests, has had average annual
gross revenues not exceeding $15 million for the preceding three years.
The 1670-1675 MHz service band auction's winning bidder did not claim
small business status.
63. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
64. Wireless Telephony. Wireless telephony includes cellular,
personal communications services, and specialized mobile radio
telephony carriers. The closest applicable industry with an SBA small
business size standard is Wireless Telecommunications Carriers (except
Satellite). The size standard for this industry under SBA rules is that
a business is small if it has 1,500 or fewer employees. For this
industry, U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated for the entire year. Of this number, 2,837 firms
employed fewer than 250 employees. Additionally, based on Commission
data in the 2022 Universal Service Monitoring Report, as of December
31, 2021, there were 331 providers that reported they were engaged in
the provision of cellular, personal communications services, and
specialized mobile radio services. Of these providers, the Commission
estimates that 255 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
65. Broadband Personal Communications Service. The broadband
personal communications services (PCS) spectrum encompasses services in
the 1850-1910 and 1930-1990 MHz bands. The closest industry with an SBA
small business size standard applicable to these services is Wireless
Telecommunications Carriers (except Satellite). The SBA small business
size standard for this industry classifies a business as small if it
has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 2,893 firms that operated in this industry for the
entire year. Of this number, 2,837 firms employed fewer than 250
employees. Thus, under the SBA size standard, the Commission estimates
that a majority of licensees in this industry can be considered small.
66. Based on Commission data as of November 2021, there were
approximately 5,060 active licenses in the Broadband PCS service. The
Commission's small business size standards with respect to Broadband
PCS involve eligibility for bidding credits and installment payments in
the auction of licenses for these services. In auctions for these
licenses, the Commission defined ``small business'' as an entity that,
together with its affiliates and controlling interests, has average
gross revenues not exceeding $40 million for the preceding three years,
and a ``very small business'' as an entity that, together with its
affiliates and controlling interests, has had average annual gross
revenues not exceeding $15 million for the preceding three years.
Winning bidders claiming small business credits won Broadband PCS
licenses in C, D, E, and F Blocks.
67. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these, at this time we are not able to estimate the
number of licensees with active licenses that would qualify as small
under the SBA's small business size standard.
68. Specialized Mobile Radio Licenses. Special Mobile Radio (SMR)
licenses allow licensees to provide land mobile communications services
(other than radiolocation services) in the 800 MHz and 900 MHz spectrum
bands on a commercial basis including but not limited to services used
for voice and data communications, paging, and facsimile services, to
individuals, Federal Government entities, and other entities licensed
under part 90 of the Commission's rules. Wireless Telecommunications
Carriers (except Satellite) is the closest industry with an SBA small
business size standard applicable to these services. The SBA size
standard for this industry classifies a business as small if it has
1,500 or fewer employees. For this industry, U.S. Census Bureau data
for 2017 show that there were 2,893 firms in this industry that
operated for the entire year. Of this number, 2,837 firms employed
fewer than 250 employees. Additionally, based on Commission data in the
2022 Universal Service Monitoring Report, as of December 31, 2021,
there were 95 providers that reported they were of SMR (dispatch)
providers. Of this number, the Commission estimates that all 95
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard,
[[Page 66263]]
these 119 SMR licensees can be considered small entities.
69. Based on Commission data as of December 2021, there were 3,924
active SMR licenses. However, since the Commission does not collect
data on the number of employees for licensees providing SMR services,
at this time we are not able to estimate the number of licensees with
active licenses that would qualify as small under the SBA's small
business size standard. Nevertheless, for purposes of this analysis the
Commission estimates that the majority of SMR licensees can be
considered small entities using the SBA's small business size standard.
70. Lower 700 MHz Band Licenses. The lower 700 MHz band encompasses
spectrum in the 698-746 MHz frequency bands. Permissible operations in
these bands include flexible fixed, mobile, and broadcast uses,
including mobile and other digital new broadcast operation; fixed and
mobile wireless commercial services (including frequency division
duplex (FDD)- and time division duplex (TDD)-based services); as well
as fixed and mobile wireless uses for private, internal radio needs,
two-way interactive, cellular, and mobile television broadcasting
services. Wireless Telecommunications Carriers (except Satellite) is
the closest industry with an SBA small business size standard
applicable to licenses providing services in these bands. The SBA small
business size standard for this industry classifies a business as small
if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017
show that there were 2,893 firms that operated in this industry for the
entire year. Of this number, 2,837 firms employed fewer than 250
employees. Thus, under the SBA size standard, the Commission estimates
that a majority of licensees in this industry can be considered small.
71. According to Commission data as of December 2021, there were
approximately 2,824 active Lower 700 MHz Band licenses. The
Commission's small business size standards with respect to Lower 700
MHz Band licensees involve eligibility for bidding credits and
installment payments in the auction of licenses. For auctions of Lower
700 MHz Band licenses the Commission adopted criteria for three groups
of small businesses. A very small business was defined as an entity
that, together with its affiliates and controlling interests, has
average annual gross revenues not exceeding $15 million for the
preceding three years, a small business was defined as an entity that,
together with its affiliates and controlling interests, has average
gross revenues not exceeding $40 million for the preceding three years,
and an entrepreneur was defined as an entity that, together with its
affiliates and controlling interests, has average gross revenues not
exceeding $3 million for the preceding three years. In auctions for
Lower 700 MHz Band licenses seventy-two winning bidders claiming a
small business classification won 329 licenses, twenty-six winning
bidders claiming a small business classification won 214 licenses, and
three winning bidders claiming a small business classification won all
five auctioned licenses.
72. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
73. Upper 700 MHz Band Licenses. The upper 700 MHz band encompasses
spectrum in the 746-806 MHz bands. Upper 700 MHz D Block licenses are
nationwide licenses associated with the 758-763 MHz and 788-793 MHz
bands. Permissible operations in these bands include flexible fixed,
mobile, and broadcast uses, including mobile and other digital new
broadcast operation; fixed and mobile wireless commercial services
(including FDD- and TDD-based services); as well as fixed and mobile
wireless uses for private, internal radio needs, two-way interactive,
cellular, and mobile television broadcasting services. Wireless
Telecommunications Carriers (except Satellite) is the closest industry
with an SBA small business size standard applicable to licenses
providing services in these bands. The SBA small business size standard
for this industry classifies a business as small if it has 1,500 or
fewer employees. U.S. Census Bureau data for 2017 show that there were
2,893 firms that operated in this industry for the entire year. Of that
number, 2,837 firms employed fewer than 250 employees. Thus, under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
74. According to Commission data as of December 2021, there were
approximately 152 active Upper 700 MHz Band licenses. The Commission's
small business size standards with respect to Upper 700 MHz Band
licensees involve eligibility for bidding credits and installment
payments in the auction of licenses. For the auction of these licenses,
the Commission defined a ``small business'' as an entity that, together
with its affiliates and controlling principals, has average gross
revenues not exceeding $40 million for the preceding three years, and a
``very small business'' an entity that, together with its affiliates
and controlling principals, has average gross revenues that are not
more than $15 million for the preceding three years. Pursuant to these
definitions, three winning bidders claiming very small business status
won five of the twelve available licenses.
75. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
76. 700 MHz Guard Band Licensees. The 700 MHz Guard Band
encompasses spectrum in 746-747/776-777 MHz and 762-764/792-794 MHz
frequency bands. Wireless Telecommunications Carriers (except
Satellite) is the closest industry with an SBA small business size
standard applicable to licenses providing services in these bands. The
SBA small business size standard for this industry classifies a
business as small if it has 1,500 or fewer employees. U.S. Census
Bureau data for 2017 show that there were 2,893 firms that operated in
this industry for the entire year. Of this number, 2,837 firms employed
fewer than 250 employees. Thus, under the SBA size standard, the
Commission estimates that a majority of licensees in this industry can
be considered small.
77. According to Commission data as of December 2021, there were
approximately 224 active 700 MHz Guard Band licenses. The Commission's
small business size standards with respect to 700 MHz Guard Band
[[Page 66264]]
licensees involve eligibility for bidding credits and installment
payments in the auction of licenses. For the auction of these licenses,
the Commission defined a ``small business'' as an entity that, together
with its affiliates and controlling principals, has average gross
revenues not exceeding $40 million for the preceding three years, and a
``very small business'' an entity that, together with its affiliates
and controlling principals, has average gross revenues that are not
more than $15 million for the preceding three years. Pursuant to these
definitions, five winning bidders claiming one of the small business
status classifications won 26 licenses, and one winning bidder claiming
small business won two licenses. None of the winning bidders claiming a
small business status classification in these 700 MHz Guard Band
license auctions had an active license as of December 2021.
78. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
79. Air-Ground Radiotelephone Service. Air-Ground Radiotelephone
Service is a wireless service in which licensees are authorized to
offer and provide radio telecommunications service for hire to
subscribers in aircraft. A licensee may provide any type of air-ground
service (i.e., voice telephony, broadband internet, data, etc.) to
aircraft of any type, and serve any or all aviation markets
(commercial, government, and general). A licensee must provide service
to aircraft and may not provide ancillary land mobile or fixed services
in the 800 MHz air-ground spectrum.
80. The closest industry with an SBA small business size standard
applicable to these services is Wireless Telecommunications Carriers
(except Satellite). The SBA small business size standard for this
industry classifies a business as small if it has 1,500 or fewer
employees. U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated in this industry for the entire year. Of this
number, 2,837 firms employed fewer than 250 employees. Thus, under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
81. Based on Commission data as of December 2021, there were
approximately four licensees with 110 active licenses in the Air-Ground
Radiotelephone Service. The Commission's small business size standards
with respect to Air-Ground Radiotelephone Service involve eligibility
for bidding credits and installment payments in the auction of
licenses. For purposes of auctions, the Commission defined ``small
business'' as an entity that, together with its affiliates and
controlling interests, has average gross revenues not exceeding $40
million for the preceding three years, and a ``very small business'' as
an entity that, together with its affiliates and controlling interests,
has had average annual gross revenues not exceeding $15 million for the
preceding three years. In the auction of Air-Ground Radiotelephone
Service licenses in the 800 MHz band, neither of the two winning
bidders claimed small business status.
82. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, the Commission
does not collect data on the number of employees for licensees
providing these services therefore, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
83. Advanced Wireless Services (AWS)--(1710-1755 MHz and 2110-2155
MHz bands (AWS-1); 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and
2175-2180 MHz bands (AWS-2); 2155-2175 MHz band (AWS-3); 2000-2020 MHz
and 2180-2200 MHz (AWS-4)). Spectrum is made available and licensed in
these bands for the provision of various wireless communications
services. Wireless Telecommunications Carriers (except Satellite) is
the closest industry with an SBA small business size standard
applicable to these services. The SBA small business size standard for
this industry classifies a business as small if it has 1,500 or fewer
employees. U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated in this industry for the entire year. Of this
number, 2,837 firms employed fewer than 250 employees. Thus, under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
84. According to Commission data as of December 2021, there were
approximately 4,472 active AWS licenses. The Commission's small
business size standards with respect to AWS involve eligibility for
bidding credits and installment payments in the auction of licenses for
these services. For the auction of AWS licenses, the Commission defined
a ``small business'' as an entity with average annual gross revenues
for the preceding three years not exceeding $40 million, and a ``very
small business'' as an entity with average annual gross revenues for
the preceding three years not exceeding $15 million. Pursuant to these
definitions, 57 winning bidders claiming status as small or very small
businesses won 215 of 1,087 licenses. In the most recent auction of AWS
licenses 15 of 37 bidders qualifying for status as small or very small
businesses won licenses.
85. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
86. 3650-3700 MHz band. Wireless broadband service licensing in the
3650-3700 MHz band provides for nationwide, non-exclusive licensing of
terrestrial operations, utilizing contention-based technologies, in the
3650 MHz band (i.e., 3650-3700 MHz). Licensees are permitted to provide
services on a non-common carrier and/or on a common carrier basis.
Wireless broadband services in the 3650-3700 MHz band fall in the
Wireless Telecommunications Carriers (except Satellite) industry with
an SBA small business size standard that classifies a business as small
if it has 1,500 or fewer employees. U.S. Census Bureau data for
[[Page 66265]]
2017 show that there were 2,893 firms that operated in this industry
for the entire year. Of this number, 2,837 firms employed fewer than
250 employees. Thus, under the SBA size standard, the Commission
estimates that a majority of licensees in this industry can be
considered small.
87. The Commission has not developed a small business size standard
applicable to 3650-3700 MHz band licensees. Based on the licenses that
have been granted, however, we estimate that the majority of licensees
in this service are small internet Access Service Providers (ISPs). As
of November 2021, Commission data shows that there were 902 active
licenses in the 3650-3700 MHz band. However, since the Commission does
not collect data on the number of employees for licensees providing
these services, at this time we are not able to estimate the number of
licensees with active licenses that would qualify as small under the
SBA's small business size standard.
88. Fixed Microwave Services. Fixed microwave services include
common carrier, private-operational fixed, and broadcast auxiliary
radio services. They also include the Upper Microwave Flexible Use
Service (UMFUS), Millimeter Wave Service (70/80/90 GHz), Local
Multipoint Distribution Service (LMDS), the Digital Electronic Message
Service (DEMS), 24 GHz Service, Multiple Address Systems (MAS), and
Multichannel Video Distribution and Data Service (MVDDS), where in some
bands licensees can choose between common carrier and non-common
carrier status. Wireless Telecommunications Carriers (except Satellite)
is the closest industry with an SBA small business size standard
applicable to these services. The SBA small size standard for this
industry classifies a business as small if it has 1,500 or fewer
employees. U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated in this industry for the entire year. Of this
number, 2,837 firms employed fewer than 250 employees. Thus, under the
SBA size standard, the Commission estimates that a majority of fixed
microwave service licensees can be considered small.
89. The Commission's small business size standards with respect to
fixed microwave services involve eligibility for bidding credits and
installment payments in the auction of licenses for the various
frequency bands included in fixed microwave services. When bidding
credits are adopted for the auction of licenses in fixed microwave
services frequency bands, such credits may be available to several
types of small businesses based average gross revenues (small, very
small and entrepreneur) pursuant to the competitive bidding rules
adopted in conjunction with the requirements for the auction and/or as
identified in part 101 of the Commission's rules for the specific fixed
microwave services frequency bands.
90. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
91. Broadband Radio Service and Educational Broadband Service.
Broadband Radio Service systems, previously referred to as Multipoint
Distribution Service (MDS) and Multichannel Multipoint Distribution
Service (MMDS) systems, and ``wireless cable,'' transmit video
programming to subscribers and provide two-way high speed data
operations using the microwave frequencies of the Broadband Radio
Service (BRS) and Educational Broadband Service (EBS) (previously
referred to as the Instructional Television Fixed Service (ITFS)).
Wireless cable operators that use spectrum in the BRS often
supplemented with leased channels from the EBS, provide a competitive
alternative to wired cable and other multichannel video programming
distributors. Wireless cable programming to subscribers resembles cable
television, but instead of coaxial cable, wireless cable uses microwave
channels.
92. In light of the use of wireless frequencies by BRS and EBS
services, the closest industry with an SBA small business size standard
applicable to these services is Wireless Telecommunications Carriers
(except Satellite). The SBA small business size standard for this
industry classifies a business as small if it has 1,500 or fewer
employees. U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated in this industry for the entire year. Of this
number, 2,837 firms employed fewer than 250 employees. Thus, under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
93. According to Commission data as December 2021, there were
approximately 5,869 active BRS and EBS licenses. The Commission's small
business size standards with respect to BRS involves eligibility for
bidding credits and installment payments in the auction of licenses for
these services. For the auction of BRS licenses, the Commission adopted
criteria for three groups of small businesses. A very small business is
an entity that, together with its affiliates and controlling interests,
has average annual gross revenues exceed $3 million and did not exceed
$15 million for the preceding three years, a small business is an
entity that, together with its affiliates and controlling interests,
has average gross revenues exceed $15 million and did not exceed $40
million for the preceding three years, and an entrepreneur is an entity
that, together with its affiliates and controlling interests, has
average gross revenues not exceeding $3 million for the preceding three
years. Of the ten winning bidders for BRS licenses, two bidders
claiming the small business status won 4 licenses, one bidder claiming
the very small business status won three licenses and two bidders
claiming entrepreneur status won six licenses. One of the winning
bidders claiming a small business status classification in the BRS
license auction has an active licenses as of December 2021.
94. The Commission's small business size standards for EBS define a
small business as an entity that, together with its affiliates, its
controlling interests and the affiliates of its controlling interests,
has average gross revenues that are not more than $55 million for the
preceding five (5) years, and a very small business is an entity that,
together with its affiliates, its controlling interests and the
affiliates of its controlling interests, has average gross revenues
that are not more than $20 million for the preceding five (5) years. In
frequency bands where licenses were subject to auction, the Commission
notes that as a general matter, the number of winning bidders that
qualify as small businesses at the close of an auction does not
necessarily represent the number of small businesses currently in
service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of
[[Page 66266]]
employees for licensees providing these services, at this time we are
not able to estimate the number of licensees with active licenses that
would qualify as small under the SBA's small business size standard.
95. Satellite Service Providers.
96. Satellite Telecommunications. This industry comprises firms
``primarily engaged in providing telecommunications services to other
establishments in the telecommunications and broadcasting industries by
forwarding and receiving communications signals via a system of
satellites or reselling satellite telecommunications.'' Satellite
telecommunications service providers include satellite and earth
station operators. The SBA small business size standard for this
industry classifies a business with $38.5 million or less in annual
receipts as small. U.S. Census Bureau data for 2017 show that 275 firms
in this industry operated for the entire year. Of this number, 242
firms had revenue of less than $25 million. Additionally, based on
Commission data in the 2022 Universal Service Monitoring Report, as of
December 31, 2021, there were 65 providers that reported they were
engaged in the provision of satellite telecommunications services. Of
these providers, the Commission estimates that approximately 42
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, a little more than half of these
providers can be considered small entities.
97. All Other Telecommunications. This industry is comprised of
establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes
establishments primarily engaged in providing satellite terminal
stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems. Providers of
internet services (e.g., dial-up ISPs) or VoIP services, via client-
supplied telecommunications connections are also included in this
industry. The SBA small business size standard for this industry
classifies firms with annual receipts of $35 million or less as small.
U.S. Census Bureau data for 2017 show that there were 1,079 firms in
this industry that operated for the entire year. Of those firms, 1,039
had revenue of less than $25 million. Based on this data, the
Commission estimates that the majority of ``All Other
Telecommunications'' firms can be considered small.
98. Cable Service Providers.
99. Because section 706 of the Act requires us to monitor the
deployment of broadband using any technology, we anticipate that some
broadband service providers may not provide telephone service.
Accordingly, we describe below other types of firms that may provide
broadband services, including cable companies, MDS providers, and
utilities, among others.
100. Cable and Other Subscription Programming. The U.S. Census
Bureau defines this industry as establishments primarily engaged in
operating studios and facilities for the broadcasting of programs on a
subscription or fee basis. The broadcast programming is typically
narrowcast in nature (e.g., limited format, such as news, sports,
education, or youth-oriented). These establishments produce programming
in their own facilities or acquire programming from external sources.
The programming material is usually delivered to a third party, such as
cable systems or direct-to-home satellite systems, for transmission to
viewers. The SBA small business size standard for this industry
classifies firms with annual receipts less than $41.5 million as small.
Based on U.S. Census Bureau data for 2017, 378 firms operated in this
industry during that year. Of that number, 149 firms operated with
revenue of less than $25 million a year and 44 firms operated with
revenue of $25 million or more. Based on this data, the Commission
estimates that a majority of firms in this industry are small.
101. Cable Companies and Systems (Rate Regulation). The Commission
has developed its own small business size standard for the purpose of
cable rate regulation. Under the Commission's rules, a ``small cable
company'' is one serving 400,000 or fewer subscribers nationwide. Based
on industry data, there are about 420 cable companies in the U.S. Of
these, only seven have more than 400,000 subscribers. In addition,
under the Commission's rules, a ``small system'' is a cable system
serving 15,000 or fewer subscribers. Based on industry data, there are
about 4,139 cable systems (headends) in the U.S. Of these, about 639
have more than 15,000 subscribers. Accordingly, the Commission
estimates that the majority of cable companies and cable systems are
small.
102. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, contains a size standard for a
``small cable operator,'' which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than one percent of
all subscribers in the United States and is not affiliated with any
entity or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' For purposes of the Telecom Act Standard, the
Commission determined that a cable system operator that serves fewer
than 498,000 subscribers, either directly or through affiliates, will
meet the definition of a small cable operator. Based on industry data,
only six cable system operators have more than 498,000 subscribers.
Accordingly, the Commission estimates that the majority of cable system
operators are small under this size standard. We note however, that the
Commission neither requests nor collects information on whether cable
system operators are affiliated with entities whose gross annual
revenues exceed $250 million. Therefore, we are unable at this time to
estimate with greater precision the number of cable system operators
that would qualify as small cable operators under the definition in the
Communications Act.
103. All Other Telecommunications.
104. Electric Power Generators, Transmitters, and Distributors. The
U.S. Census Bureau defines the utilities sector industry as comprised
of ``establishments, primarily engaged in generating, transmitting,
and/or distributing electric power. Establishments in this industry
group may perform one or more of the following activities: (1) operate
generation facilities that produce electric energy; (2) operate
transmission systems that convey the electricity from the generation
facility to the distribution system; and (3) operate distribution
systems that convey electric power received from the generation
facility or the transmission system to the final consumer.'' This
industry group is categorized based on fuel source and includes
Hydroelectric Power Generation, Fossil Fuel Electric Power Generation,
Nuclear Electric Power Generation, Solar Electric Power Generation,
Wind Electric Power Generation, Geothermal Electric Power Generation,
Biomass Electric Power Generation, Other Electric Power Generation,
Electric Bulk Power Transmission and Control and Electric Power
Distribution.
105. The SBA has established a small business size standard for
each of these groups based on the number of employees which ranges from
having fewer than 250 employees to having fewer than 1,000 employees.
U.S. Census Bureau data for 2017 indicate that for the Electric Power
Generation,
[[Page 66267]]
Transmission, and Distribution industry there were 1,693 firms that
operated in this industry for the entire year. Of this number, 1,552
firms had less than 250 employees. Based on this data and the
associated SBA size standards, the majority of firms in this industry
can be considered small entities.
E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
106. We expect that some of the rules adopted in the Fourth Report
and Order will impose new or additional reporting, recordkeeping, and/
or other compliance obligations on small entities. The Fourth Report
and Order modifies the BDC rules to codify the expedited availability
challenge adjudication deadlines to implement the IIJA mandate.
Commission staff already functionally implemented this deadline for the
availability challenge process as required by the IIJA. In an effort to
comply with the Broadband DATA Act, we now memorialize in our rules the
procedures that Commission staff have followed since the start of the
challenge process. The Fourth Report and Order also delegates authority
to OEA to collect any and all data required to conduct a thorough and
complete audit process. Finally, we formally amend the name given to
the data collection from the ``Digital Opportunity Data Collection'' to
the ``Broadband Data Collection.'' As to the cost of compliance, at
present, the record contains insufficient information to either
quantify compliance costs for small entities as a result of the adopted
rules, or determine whether there will be a need for small entities to
hire attorneys, engineers, consultants, or other professionals.
107. The Commission believes that any additional burdens imposed by
our audit of provider data are outweighed by the significant benefit to
be gained from more precise broadband deployment data. As discussed
above, although the Commission cannot quantify the cost of compliance
with the requirements in the Fourth Report and Order, we believe the
modifications to the BDC rules are necessary to comply with the
Broadband DATA Act and complete accurate broadband coverage maps.
F. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
108. The RFA requires an agency to provide, ``a description of the
steps the agency has taken to minimize the significant economic impact
on small entities . . . including a statement of the factual, policy,
and legal reasons for selecting the alternative adopted in the final
rule and why each one of the other significant alternatives to the rule
considered by the agency which affect the impact on small entities was
rejected.''
109. The Commission's actions in the Fourth Report and Order are
primarily in response to the legislative enactment of the Broadband
DATA Act to develop better quality, more useful, and more granular
broadband deployment data, as well as our mandate to codify expedited
challenge adjudication deadlines as required by the IIJA. In
considering the comments in the record, we were mindful of the time,
money, and resources that some small entities incur to complete these
requirements.
110. For example, in implementing the IIJA's requirements, we
considered alternatives for how the Commission could address situations
where a challenger and a challenged provider cannot reach a consensus
as Sec. 1.7006(d)(6) requires. In the Fourth Report and Order, we set
forth that the shot-clock for Commission action should begin once the
provider has reported on the status of the parties' efforts to resolve
the challenge. Taking this step allows small and other entities to have
sufficient time to resolve challenges on their own, where possible,
before Commission staff become involved while helping the Commission
adjudicate challenges more efficiently.
G. Report to Congress
111. The Commission will send a copy of the Fourth Report and
Order, including the FRFA, in a report to Congress pursuant to the
Congressional Review Act. In addition, the Commission will send a copy
of the Fourth Report and Order, including the FRFA, to the Chief
Counsel for Advocacy of the SBA. A copy of the Fourth Report and Order
and FRFA (or summaries thereof) will also be published in the Federal
Register.
III. Ordering Clauses
112. Accordingly, it is ordered, pursuant to sections 1 through 4,
7, 201, 254, 301, 303, 309, 319, 332, 403, and 641 through 646 of the
Communications Act of 1934, as amended, 47 U.S.C. 151 through 154, 157,
201, 254, 301, 303, 309, 319, 332, 403, 641 through 646, the Fourth
Report and Order and Declaratory Ruling is adopted.
113. It is further ordered that part 1 of the Commission's rules is
amended as set forth in Appendix A of the Fourth Report and Order.
114. It is further ordered that the Fourth Report and Order shall
be effective 30 days after publication in the Federal Register.
115. It is further ordered that the Declaratory Ruling shall be
effective upon adoption by the Commission.
116. It is further ordered that the Office of the Managing
Director, Performance Program Management, shall send a copy of the
Fourth Report and Order and Declaratory Ruling in a report to be sent
to Congress and the Government Accountability Office pursuant to the
Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
117. It is further ordered that the Office of the Secretary shall
send a copy of the Fourth Report and Order, including the Final
Regulatory Flexibility Analysis and the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure, Broadband, Reporting and
recordkeeping requirements, Telecommunications.
Federal Communications Commission
Marlene Dortch,
Secretary.
FEDERAL COMMUNICATIONS COMMISSION
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 1 as follows:
PART 1--PRACTICE AND PROCEDURE
0
1. The authority citation for part 1 continues to read as follows:
Authority: 47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461 note; 47
U.S.C. 1754, unless otherwise noted.
0
2. Amend Sec. 1.7006 by:
0
a. Revising paragraph (a) and paragraph (d)(6) introductory text;
0
b. Redesignating paragraphs (e)(5) through (7) as paragraphs (e)(6)
through (8);
0
c. Adding a new paragraph (e)(5);
0
d. Redesignating paragraphs (f)(6) and (7) as paragraphs (f)(7) and
(8); and
0
e. Adding a new paragraph (f)(6).
The revisions and additions read as follows:
Sec. 1.7006 Data verification.
(a) Audits. The Office of Economics and Analytics, in coordination
with the Wireless Telecommunications Bureau, Wireline Competition
Bureau, and
[[Page 66268]]
Space Bureau, shall conduct regular audits of the information submitted
by providers in their Broadband Data Collection filings. The audits:
(1) May be random, as determined by the Office of Economics and
Analytics; or
(2) Can be required in cases where there may be patterns of filing
incorrect information, as determined by the Office of Economics and
Analytics.
* * * * *
(d) * * *
(6) If the parties are unable to reach consensus within 60 days
after submission of the provider's reply in the portal, then the
affected provider shall report the status of efforts to resolve the
challenge in the online portal. After the affected provider reports on
the status of these efforts (including any amended report submitted
prior to the 60-day deadline), the Commission shall have 90 days to
review the evidence and make a determination, either:
* * * * *
(e) * * *
(5) Commission staff will resolve the challenge within 90 days
following the 60th day after which the provider is notified of the
challenge (i.e., the deadline for submitting challenge rebuttal data),
except that, should the Office of Economics and Analytics (OEA) request
supplemental information from a provider after receiving the provider's
initial challenge response, the Commission will resolve the challenge
within 90 days following the 60th day after which staff request such
supplemental data (i.e., 90 days after the deadline for when the
supplemental data is due to OEA).
* * * * *
(f) * * *
(6) Commission staff will resolve the challenge within 90 days
following the 60th day after which the provider is notified of the
challenge (i.e., the deadline for submitting challenge rebuttal data),
except that, should the OEA request supplemental information from a
provider after receiving the provider's initial challenge response, the
Commission will resolve the challenge within 90 days following the 60th
day after which staff request such supplemental data (i.e., 90 days
after the deadline for when the supplemental data is due to OEA).
* * * * *
Sec. Sec. 1.7004 through 1.7010 [Amended]
0
3. In addition to the amendments set forth above, in 47 CFR part 1,
remove the text ``Digital Opportunity Data Collection'' wherever it
appears and add in its place the text ``Broadband Data Collection'' in
Sec. Sec. 1.7004 through 1.70010.
[FR Doc. 2024-16935 Filed 8-14-24; 8:45 am]
BILLING CODE 6712-01-P | usgpo | 2024-10-08T13:26:21.042904 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-16935.htm"
} |
FR | FR-2024-08-15/2024-17479 | Federal Register Volume 89 Issue 158 (August 15, 2024) | 2024-08-15T00:00:00 | United States National Archives and Records Administration Office of the Federal Register | [Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66268-66283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17479]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 79
[MB Docket No. 12-108; FCC 24-79; FR ID 235228]
Accessibility of User Interfaces, and Video Programming Guides
and Menus
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) requires manufacturers of covered apparatus and
multichannel video programming distributors to make closed captioning
display settings readily accessible to individuals who are deaf and
hard of hearing. This action will further the Commission's efforts to
enable individuals with disabilities to access video programming
through closed captioning.
DATES:
Effective date: Effective September 16, 2024.
Compliance date: Compliance with 47 CFR 79.103(e) is not required
until the Commission has published a document in the Federal Register
announcing the compliance date.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Diana Sokolow, [email protected], of the Policy
Division, Media Bureau, (202) 418-2120.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
Report and Order (Order), in MB Docket No. 12-108; FCC 24-79, adopted
on July 18, 2024 and released on July 19, 2024. The full text of this
document will be available at https://docs.fcc.gov/public/attachments/FCC-24-79A1.pdf and via ECFS at https://www.fcc.gov/ecfs/. Documents
will be available electronically in ASCII, Microsoft Word, and/or Adobe
Acrobat. Alternative formats are available for people with disabilities
(Braille, large print, electronic files, audio format), by sending an
email to [email protected] or calling the Commission's Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), 1-844-4-FCC-ASL
(1-844-432-2275) (videophone).
Synopsis
This Order furthers our efforts to enable individuals with
disabilities to access video programming through closed captioning.
Closed captioning displays the audio portion of a television program as
text on the screen, providing access to news, entertainment, and
information for individuals who are deaf and hard of hearing. The
Federal Communications Commission requires the provision of closed
captioning on nearly all television programming, as well as on a large
portion of internet protocol (IP)-delivered programming. Through the
Commission's implementation of the Television Decoder Circuitry Act of
1990 (TDCA) and the Twenty-First Century Communications and Video
Accessibility Act of 2010 (CVAA), it has made significant progress in
enabling video programming to be accessible to persons who are deaf and
hard of hearing. Pursuant to the TDCA, the Commission adopted standards
for the display of closed captions on digital television receivers, and
those standards enable users to customize caption display by changing
the font, size, color, and other features of captions. Subsequently,
pursuant to the CVAA, the Commission adopted display standards for
other video devices, specifically for apparatus designed to receive or
play back video programming transmitted simultaneously with sound.
However, many consumers continue to have difficulty accessing the
closed captioning display settings on televisions and other video
devices--a technical barrier that prevents the use and enjoyment of
captioning. Today we take steps to alleviate this problem and thereby
ensure meaningful access to captioning.
Specifically, the rule we adopt requires manufacturers of covered
apparatus \1\ and multichannel video programming distributors (MVPDs)
to make closed captioning display settings readily accessible to
individuals who are deaf and hard of hearing. We afford covered
entities flexibility in how they meet this obligation, and the
Commission will determine whether settings are readily accessible to
consumers by evaluating the following factors: proximity,
discoverability,
[[Page 66269]]
previewability, and consistency and persistence. We adopt a compliance
deadline of two years after publication of this Order in the Federal
Register.
---------------------------------------------------------------------------
\1\ As discussed below, the requirements adopted herein apply to
devices covered by section 303(u) of the Act, in other words,
apparatus designed to receive or play back video programming
transmitted simultaneously with sound, if such apparatus is
manufactured in the United States or imported for use in the United
States and uses a picture screen of any size, except that the
requirements do not apply to third-party, pre-installed applications
that are otherwise covered by section 303(u).
---------------------------------------------------------------------------
Prior to adoption of the TDCA, consumers needed to purchase a
separate TeleCaption decoder device and connect it to a television set
in order to display closed captions. The TDCA amended section 303 of
the Communications Act of 1934, as amended (the Act), to require that
television receivers contain built-in decoder circuitry designed to
display closed captioning. It also amended section 330 of the Act to
require that the Commission's rules provide performance and display
standards for such built-in decoder circuitry. In the TDCA, Congress
observed that the availability of televisions with built-in decoders
``will significantly increase the audience that can be served by
closed-captioned television'' and outlined the significant benefits of
closed captioning for people who are deaf and hard of hearing as well
as other segments of the population, including children and older
Americans who have some loss of hearing. Congress also mandated in
section 330(b) of the Act that the Commission take appropriate action
to ensure that closed captioning service continues to be available to
consumers as new video technology is developed.
In 1991, the Commission adopted rules that codified standards for
the display of closed captioned text on analog television receivers.
Following the transition to digital broadcasting, the Commission in
2000 adopted technical standards for the display of closed captions on
digital television receivers ``to ensure that closed captioning service
continues to be available to consumers.'' In particular, the Commission
adopted with some modifications section 9 of EIA-708, an industry
standard addressing closed captioning for digital television, which
allows the caption display to be customized for a particular viewer by
enabling the viewer to change the appearance of the captions to suit
his or her needs. When the Commission adopted the technical standards,
it explained that the ``capability to alter fonts, sizes, colors,
backgrounds and more, can enable a greater number of persons who are
deaf and hard of hearing to take advantage of closed captioning.''
In 2010, Congress enacted the CVAA to ``update the communications
laws to help ensure that individuals with disabilities are able to
fully utilize communications services and equipment and better access
video programming.'' Section 203 of the CVAA broadened section 303(u)
of the Act, which previously applied to ``apparatus designed to receive
television pictures broadcast simultaneously with sound,'' to cover
``apparatus designed to receive or play back video programming
transmitted simultaneously with sound, if such apparatus is
manufactured in the United States or imported for use in the United
States and uses a picture screen of any size.'' Such apparatus must
``be equipped with built-in closed caption decoder circuitry or
capability designed to display closed-captioned video programming.'' In
2012, the Commission adopted performance and display standards for such
built-in decoder circuitry in accordance with section 330(b) of the
Act, and in particular it adopted functional requirements to ensure
that consumers can modify caption display features for IP-delivered
programming on covered apparatus. These rules require that apparatus
provide functionality that allows users to change the presentation,
color, opacity, size, and font of captions, caption background color
and opacity, character edge attributes, and caption window color. But
the rules do not mandate how users access such features on the device.
In the Commission's subsequent proceedings on implementing the
accessibility requirements of sections 204 and 205 of the CVAA,
Consumer Groups described the difficulties consumers who are deaf and
hard of hearing face in accessing closed captioning display features on
apparatus used to view video programming.
In November 2015, in a Second Further Notice of Proposed Rulemaking
(Second FNPRM) in the above-captioned docket, the Commission proposed
to adopt rules that would require manufacturers and MVPDs to ensure
that consumers are able to readily access user display settings for
closed captioning, and on the Commission's authority to do so under the
TDCA.\2\ Among other things, the Second FNPRM asked whether the
Commission should require the inclusion of closed captioning display
settings no lower than the first level of a menu, whether such an
approach would provide industry with sufficient flexibility, and
whether there are ``alternative ways to implement this requirement.''
In January 2022, the Media Bureau released a Public Notice seeking to
refresh the record on the proposals contained in the Second FNPRM.\3\
While some comments in the refreshed record assert that caption display
settings are accessible, others explain that problems with the
accessibility of such settings continue to persist.
---------------------------------------------------------------------------
\2\ In the Further Notice of Proposed Rulemaking in MB Docket
No. 12-108, the Commission had previously inquired whether sections
204 and 205 of the CVAA provide the Commission with authority to
adopt such a requirement. Given our conclusion herein that our
authority derives from the statutory provisions of the TDCA, as
codified in sections 303(u) and 330(b) of the Act, we find it
unnecessary to reach this issue.
\3\ The January 2022 Public Notice was published in the Federal
Register. See Federal Communications Commission, Accessibility Rules
for Closed Captioning Display Settings, 87 FR 2607 (Jan. 18, 2022).
---------------------------------------------------------------------------
In January 2023, the Media Bureau released another Public Notice,
seeking comment on a proposal in the record that the Commission require
compliance with the following factors when determining whether
captioning display settings are readily accessible: proximity,
discoverability, previewability, and consistency and persistence.\4\ On
March 14, 2024, NCTA and a coalition of consumer groups filed in the
record a joint proposal to make caption display settings readily
accessible.\5\ The Media Bureau released a Public Notice seeking
comment on the joint proposal.\6\
---------------------------------------------------------------------------
\4\ The 2023 Caption Display Settings Public Notice was
published in the Federal Register. See Federal Communications
Commission, Accessibility Rules for Closed Captioning Display
Settings, 88 FR 6725 (Feb. 1, 2023).
\5\ The proposal's signatories represent the following
organizations: NCTA, National Association of the Deaf, TDIforAccess
(TDI), Communication Service for the Deaf, and Hearing Loss
Association of America.
\6\ The 2024 Caption Display Settings Public Notice was
published in the Federal Register. See Federal Communications
Commission, Accessibility Rules for Closed Captioning Display
Settings, 89 FR 20965 (March 26, 2024).
---------------------------------------------------------------------------
Below, we first find that we have authority under the TDCA to
require that closed captioning display settings are readily accessible
to consumers. Second, we adopt the requirement that such settings must
be ``readily accessible,'' and we detail factors the Commission will
require when making this determination. Third, we explain our finding
that the public interest benefits outweigh the costs for a requirement
that the closed captioning display settings be readily accessible.
Fourth, we find that the rule we adopt herein applies to the full range
of devices covered by section 303(u) of the Act, and that both
manufacturers of covered apparatus and MVPDs are responsible for
compliance with the rule, except that the requirements do not apply to
third-party, pre-installed applications that are otherwise covered by
section 303(u). Fifth, we discuss the availability of waivers or
exemptions based on achievability and technical
[[Page 66270]]
feasibility. Finally, we establish a compliance deadline of two years
after publication of the Third Report and Order in the Federal
Register.
Authority. We conclude that the Commission has authority under the
TDCA to require that closed captioning display settings be readily
accessible to consumers. Section 303(u)(1)(A) of the Act authorizes the
Commission to require that ``apparatus designed to receive or play back
video programming transmitted simultaneously with sound'' must ``be
equipped with built-in closed caption decoder circuitry or capability
designed to display closed-captioned video programming.'' Section
330(b) of the Act directs the Commission to adopt rules to ``provide
performance and display standards for such built-in decoder circuitry
or capability designed to display closed captioned video programming''
and, ``[a]s new video technology is developed,'' to take such action as
it ``determines appropriate to ensure that closed-captioning service .
. . continue[s] to be available to consumers.''
We find that sections 303(u) and 330(b) authorize the Commission,
in implementing the TDCA, to consider the practical usability of closed
captioning features by consumers and to adopt ``performance and display
standards'' that will make closed captioning ``available to consumers''
by ensuring the usability of the display options. We find that
meaningful access to user display settings ``is essential to making
closed captioning `available' to consumers'' within the meaning of the
TDCA.\7\ As Consumer Groups explain, ``[i]f a consumer cannot readily
locate and use display settings, then closed captioning itself is not
truly `available' because the consumer cannot ensure that captions are
rendered in a readable and accessible format,'' and, thus the directive
and purpose of the statute will not be fulfilled. Given ``the increased
volume and variety of both the programming and devices available to
consumers'' today, it is ``more important now than ever'' that the
Commission modify its rules to ensure that closed captioning is
meaningfully--not just nominally--available to viewers in order to
serve Congressional intent.\8\ The record shows that expecting
consumers to ``search[] for settings which are buried in menus'' is an
``intimidating and frustrating experience.'' \9\ Thus, simply including
captioning circuitry somewhere in a device is not enough to satisfy the
requirements of the statute; for the captions to be ``available'' as
Congress intended, consumers must be able to adjust the caption display
settings in a manner that makes the captions accessible--i.e.,
``available'' to the consumer.
---------------------------------------------------------------------------
\7\ See Consumer Groups 2016 Comments at 3.
\8\ Id.
\9\ Id. at 4.
---------------------------------------------------------------------------
We find that the structure, text, purpose, and history of the TDCA
support Commission authority to regulate consumer access to closed
captioning display settings. First, the statutory structure and text
support this interpretation. Section 303(u)(1)(A) directs the
Commission to adopt regulations that, among other things, require (if
technically feasible) that covered devices ``be equipped with built-in
closed caption decoder circuitry or capability designed to display
closed-captioned video programming.'' Section 330(b) directs the
Commission to adopt ``performance and display standards'' and to take
such action as it deems necessary to ensure that closed captioning
continues to be ``available,'' as new technology is developed. Congress
did not define the term ``available'' for purposes of section 330(b).
We believe that the best reading is to interpret ``available'' to mean
that consumers can readily access the various functions and features of
closed captioning capability. We find that this reading is supported by
the statute as a whole and the surrounding text. Specifically, section
330(b) identifies certain requirements that Commission rules ``shall
provide'' in implementing section 303(u), including ``performance and
display standards,'' a requirement that is sufficiently broad to
encompass regulation of how closed captioning is accessed by consumers.
Indeed, Consumer Groups discuss the meaning of the word ``performance''
in the phrase ``performance and display standards,'' explaining that
``[a]n interpretation of the statute that would prohibit the Commission
from setting standards for easy access to configuration controls would
undermine'' Congress's accessibility goals, and the ``grant of
authority to implement performance standards'' provides the Commission
with ``substantial discretion'' in adopting requirements ``to specify
how users might interact with functions required by those performance
standards.'' We agree. By exercising our authority in this manner, we
fulfill the statutory requirement to include in our rules
``performance'' standards for closed captioning. In addition, section
330(b) directs the Commission ``[a]s new video technology is
developed'' to ``take such action as [it] determines appropriate to
ensure that closed-captioning service . . . continue[s] to be available
to consumers.'' The ``take such action as [it] determines appropriate''
mandate further supports a broad, rather than narrow, view of the
Commission's authority to ``ensure that closed-captioning service . . .
continue[s] to be available to consumers''--an objective advanced by
ensuring access to closed caption display options. We thus believe this
interpretation of the statute best reflects the ordinary meaning of the
statute and best serves the statutory purpose, as discussed below.
Second, our interpretation is consistent with the express purpose
of the TDCA, which is to increase the number of consumers who can avail
themselves of closed captioning, with increased demand spurring the
provision of more captioned programming. In enacting the TDCA, Congress
stated that ``to the fullest extent made possible by technology,''
persons who are deaf and hard of hearing ``should have equal access to
the television medium.'' Third, we observe that the legislative history
reveals that Congress believed the TDCA would increase the audience for
closed captioned programming and thereby create market incentives for
investment in closed captioned programming. If a covered apparatus has
the ability to process and display closed captions but does so in a way
that makes it practically infeasible or undesirable for consumers to
use that capability, the intent of broadening the potential audience
for captioned programming is undermined. By requiring that closed
captioning performance and display functionality be ``readily
accessible,'' we fulfill the purpose of the TDCA and Congressional
intent as reflected in the legislative history by ensuring that
captions are meaningfully available, and we can increase the likelihood
that the audience for closed captioned programming will continue to
grow as unmet needs are fulfilled, consistent with the statutory
purpose.
We do not agree that relying on sections 303(u)(1)(A) and 330(b) of
the Act here is ``a belated Commission reinterpretation of the TDCA.''
\10\ To the contrary, the Commission historically has recognized and
exercised authority under sections 303(u) and 330(b) of the Act, prior
to the enactment of the CVAA, in a manner that supports its exercise of
that authority to regulate access to closed captioning display options
here. Previously, the Commission concluded that ``[i]t is
[[Page 66271]]
essential'' that closed captions be readable, and it relied on sections
303(u) and 330(b) of the Act to adopt closed captioning rules that
required consumers to be able to modify settings such as font size and
color. Interpreting the TDCA to authorize regulations ensuring that
consumers can easily access the required display settings to make
closed captions readable, therefore, is entirely consistent with our
prior interpretations. For the same reason, there is no logical basis
to conclude that Congress, with respect to the TDCA modifications it
adopted via the CVAA, interpreted the TDCA as not having granted the
Commission authority to regulate access to display settings, as some
commenters advocate.
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\10\ CTA 2016 Comments at 6-7; CTA 2022 Comments at 9.
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Further, we reject the argument that the penultimate sentence of
section 330(b) does not support the adoption of new requirements here
because currently there is ``no threat to the availability of closed-
captioning service.'' \11\ To the contrary, we find that the
requirements we are adopting herein are a proper exercise of our
authority under section 330(b) because the record shows that the
development of new technology for viewing video programming has made it
more difficult for consumers to access the necessary caption display
settings. Specifically, consumers today watch video programming on a
multitude of different devices, and ``it is difficult for consumers to
readily anticipate where display settings are located because the
location varies depending on the device used.'' \12\ With the
proliferation of online video programming, a consumer that views
captioned video programming using the same application or website on
multiple devices may adjust the display settings for one device, only
to find that the settings need to be adjusted again when the
programming is viewed on a different device.
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\11\ See NCTA 2016 Comments at 4. That sentence reads: ``As new
video technology is developed, the Commission shall take such action
as [it] determines appropriate to ensure that closed-captioning
service . . . continue[s] to be available to consumers.'' NCTA
claims that ``the legislative history shows that this particular
sentence was not intended to provide additional authority to the
Commission, but instead reflects Congress' desire to ensure that the
particular technical requirements Congress directed the Commission
to adopt would be revised as necessary to keep pace with future
technology changes.'' We disagree with NCTA's interpretation of the
legislative history. The legislative history that NCTA cites merely
indicates an intention to permit the Commission not to impose the
same requirements for both older and newer technologies so long as
closed captioning remains widely available to consumers.
\12\ Consumer Groups 2016 Comments at 7.
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We also disagree with commenters who argue that the directives of
sections 303(u) and 330(b) are satisfied as long as closed captioning
circuitry or capability is included somewhere in their devices, that
the statute's use of the term ``available'' should be read narrowly to
exclude consideration of the accessibility of the closed captioning by
consumers,\13\ and that section 330(b) does nothing more than
``authorize the Commission to update specifications as necessary to
keep up with new video technologies.'' \14\ As explained above,
Congress used broad language in section 330(b), authorizing the
Commission to ``take such action as [it] determines appropriate'' to
ensure the continued availability of closed captioning. We thus reject
ACA's assertion that the Commission's authority under section 330(b)
``is limited to updating the specific technical requirements identified
in the TDCA'' to avoid requiring manufacturers to adhere to ``outdated
technical requirements.'' Further, our interpretation best serves the
statutory purpose of ensuring that persons who are deaf and hard of
hearing ``should have equal access to the television medium.'' Thus, we
believe our adoption of a rule ensuring the accessibility of closed
captioning display functions falls within the broad scope of this
language. The language also informs our interpretation and
implementation of our authority under section 303(u) to ensure that
video apparatus is ``equipped'' with closed captioning capabilities,
which requires both that the apparatus possesses the necessary
capabilities and that consumers are able to access them.\15\ Thus, our
advancement of the objectives identified in section 330(b) also
supports our use of section 303(u)(1)(A) authority to adopt the
requirements of this order.\16\
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\13\ NCTA cites as support for its statutory analysis the
approach the Commission took in the TDCA Report and Order and the
DTV Closed Captioning Order, but both of those orders are
distinguishable. First, the TDCA Report and Order was a pre-digital
order that also predated the amendment of the TDCA to extend beyond
television sets. Second, the DTV Closed Captioning Order applied
only to DTV receivers.
\14\ ACA 2016 Reply at 6.
\15\ Interpreting the second to last sentence of section 330(b)
to, at a minimum, inform our interpretation and implementation of
section 303(u) is consistent with the remaining text of section
330(b). Among other things, that language directs the Commission to
adopt rules implementing section 303(u) that ``provide performance
and display standards for [ ] built-in decoder circuitry or
capability designed to display closed captioned video programming.''
As explained above, the rules we adopt here readily fit within the
scope of ``performance and display standards.''
\16\ NCTA overstates the significance of certain language from
the legislative history of the TDCA as allegedly demonstrating that
the Commission is precluded from interpreting the second to last
sentence of section 330(b) as a grant of authority. See NCTA 2016
Comments at 4, n.13. By its terms, that excerpt is an ``example'' of
the relevance of the second to last sentence of section 330(b),
rather than an exhaustive description of the role of that provision.
That language from the TDCA Senate Report also reinforces the view
that, at a minimum, the considerations identified in section 330(b)
inform our interpretation and implementation of our authority under
section 303(u). Moreover, this legislative history demonstrates our
authority to take steps reasonably necessary, as demonstrated above,
to ``ensure'' that closed captioning continues to be ``widely
available'' to consumers.
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We further reject arguments that the statutory language does not
permit the Commission to regulate the manner in which consumers are
able to access and use such circuitry or capability. AT&T, for example,
points to language in section 330(b) directing the Commission to ensure
that covered apparatus ``be able to receive and display closed
captioning which have been transmitted by way of line 21 of the
vertical blanking interval,'' consistent with specific ``signal and
display specifications.'' Yet, that text is preceded by the phrase,
``Such rules shall further require,'' which belies the notion that
Congress intended to use that language to limit the Commission's
authority to the implementation of the identified specifications. To
the contrary, we conclude that the reference in section 330(b) of the
Act to ``performance and display standards,'' which Congress did not
define, includes the regulation of how consumers are able to access and
use closed captioning. To interpret the language more narrowly, as some
commenters advocate, would have the perverse result of allowing a
manufacturer or MVPD to bury those settings so deep in a complicated
series of menus that they are not readily accessible, undermining the
purpose of the statute to ensure they are ``available to consumers.''
Further, the reference that AT&T highlights in the statute to the
``line 21 of the vertical blanking interval'' relates only to analog
transmission. There is no vertical blanking interval in digital
transmissions. The digital transition occurred in 2009 for the majority
of stations, and the requirement contained in this sentence cannot
transfer directly into a digital environment. Thus the requirement
contained in this sentence cannot reasonably be read to limit the
Commission's authority here. The directive in section 330(b) that the
Commission ``take such action as [it] determines appropriate'' supports
a broad view of the Commission's authority to ensure that closed
captioning ``continue[s] to be available to consumers.''
[[Page 66272]]
Further, Congress's enactment in the CVAA of sections 303(aa) and
(bb) of the Act does not undercut the Commission's exercise of its
authority under sections 303(u) and 330(b) of the Act. Section 303(aa)
contains accessibility requirements for certain digital apparatus
functions and features, while section 303(bb) contains accessibility
requirements for certain navigation device functions and features.
First, we reject suggestions that sections 303(aa) and (bb) are more
specific than sections 303(u) and 330(b) and thus are controlling with
regard to Commission authority to regulate consumer access to closed
captioning display settings. These arguments invoke the general canon
of interpretation that ``specific statutory language should control
more general language when there is a conflict between the two.'' \17\
Such an interpretation would represent a narrowing of the authority
that the Commission previously understood itself to have and that it
has exercised, and there is no indication that Congress intended the
CVAA to have such an effect. It is more consistent with the
accessibility objectives of the CVAA to conclude that Congress intended
sections 303(u), (aa), (bb), and 330(b) of the Act to be available
collectively as a source of Commission authority to pursue disability
access objectives.\18\ While sections 303(aa)(3) and (bb)(2)
specifically address access to closed captioning activation, they are
silent regarding access to closed captioning display options.\19\ Had
Congress intended to curtail the Commission's authority to take further
action under section 330(b) to promote the continued availability of
closed captioning service, it could have done so explicitly. It did
not, and we find it unlikely that Congress intended to do so sub
silentio.
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\17\ NCTA v. Gulf Power, 534 U.S. 327, 335-336 (2002).
\18\ The stated purpose of the CVAA is ``[t]o increase the
access of persons with disabilities to modern communications, and
for other purposes.''
\19\ Similarly, the provisions in sections 204 and 205 of the
CVAA that were not incorporated in sections 303(aa) and (bb) of the
Act are silent regarding access to closed captioning display
options. Contrary to CTA's suggestion, sections 204 and 205 did not
``express[ ] an intent to limit the Commission's authority'' in this
regard. In addition, sections 303(aa)(1) and (2) apply to an
unenumerated universe of ``functions'' to be made accessible to
individuals who are blind or visually impaired, and thus also are
not more specific than sections 303(u)(1)(A) and 330(b) regarding
the requirements for closed captioning display options that we adopt
here.
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Second, contrary to the suggestion of some commenters, we find that
Congress's decision to require closed caption activation via a
mechanism reasonably comparable to a key, button, or icon does not mean
that it considered and rejected such a requirement for closed
captioning display settings.\20\ Rather, as stated above, we find that
Congress intended the relevant provisions of the Act--section 303(u),
as amended by the CVAA; sections 303(aa) and (bb), added to the Act by
the CVAA; and section 330(b), added to the Act by the TDCA--to be
available collectively as a source of Commission authority regarding
disability access issues. Given Congress's interest in expanding access
to video programming through the CVAA, we do not believe that it
intended the provisions of that statute to negate the express language
of section 330(b) to ensure that closed captions continue to be
available to consumers as new video technology is developed, nor the
overall intent of the TDCA to bring more programs that are closed
captioned into the homes of Americans. Congress required closed caption
activation via a certain mechanism in the CVAA, but Congress left it to
the Commission's discretion to determine whether and to what extent to
regulate other matters pertaining to the ability of consumers to access
closed captioning on video apparatus pursuant to its earlier grant of
authority, including specifically through establishment of
``performance and display standards.''
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\20\ This argument invokes the ``expressio unius est exclusio
alterius'' canon of interpretation, which ``presum[es] that an
omission is intentional where Congress has referred to something in
one subsection but not in another.'' NAB v. FCC, 569 F.3d 416, 421
(D.C. Cir. 2009) (citing Russello v. United States, 464 U.S. 16, 23
(1983)).
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Third, we disagree with commenters who contend that Congress would
not have needed to adopt provisions in the CVAA directing the
Commission to require closed caption activation through a mechanism
reasonably equivalent to a button, key, or icon if the Commission
already had authority pursuant to the TDCA to regulate access to closed
captioning display settings. There are legally meaningful differences
in the Commission's authority under section 303(u) as compared to
sections 303(aa) and (bb) of the Act, which indicate that Congress
intended to give the Commission new authority to accomplish a
particular purpose, rather than supplant the Commission's authority to
adopt closed-captioning regulations pursuant to a specific legal
standard under section 303(u). For example, section 303(u)(1)(A)
directs the Commission to adopt closed captioning requirements that
apply if compliance is ``technically feasible,'' whereas sections
303(aa)(3) and (bb)(2) contain no such limitation.\21\ Additionally,
the Commission has statutory authority to exempt certain apparatus from
the requirements of section 303(u) that it cannot exercise with respect
to the requirements of sections 303(aa)(3) and (bb)(2). Further, the
CVAA established deadlines for the Commission to adopt rules initially
implementing the requirements of sections 303(aa)(3) and (bb)(2) that
differ from those for implementing the CVAA's revisions to section
303(u). There is no logical basis to conclude that the ``button, key,
or icon'' requirement in sections 303(aa)(3) and (bb)(2) presupposes
the absence of authority in sections 303(u)(1) or 330(b) to adopt
different regulations to ensure that closed captioning performance and
display functions continue to be ``available'' to consumers. Thus, we
conclude that enactment of sections 303(aa)(3) and (bb)(2) does not
diminish our authority to adopt the new rule set forth herein.
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\21\ The Commission previously concluded that section 303(bb)(2)
contains no limiting language and therefore imposes an unconditional
obligation, noting that it does not contain ``upon request''
language or any reference to specific types of individuals found
elsewhere in section 205 of the CVAA; lacks language found elsewhere
that allows entities to provide required functionalities using
separate equipment or software; and is not qualified by the phrase
``if achievable,'' in contrast with other provisions. Section
303(aa)(3) likewise lacks any limiting language.
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Finally, as a separate and independent basis of authority, in
addition to the TDCA, we find authority to adopt accessibility
requirements under sections 4(i) and 303(r) of the Act. The Commission
is specifically delegated authority under the Act to require that
covered apparatus must ``be equipped'' with closed caption capability
and to adopt rules as it ``determines appropriate to ensure that
closed-captioning service . . . continue[s] to be available to
consumers'' ``[a]s new video technology is developed.'' Ensuring that
the required caption capabilities are actually accessible by consumers
is essential to fulfill these statutory requirements. Otherwise, if a
consumer cannot readily locate and use display settings to ensure that
captions are rendered in a readable and accessible format, then closed
captioning itself is not truly ``available'' as required under the
statute. The rules we adopt today are thus necessary to carry out the
specific requirements set forth in sections 303(u) and 330(b) of the
Act.
Access to Closed Captioning Display Settings Must Be ``Readily
Accessible.'' As proposed in the Second FNPRM, we adopt a rule that
requires covered
[[Page 66273]]
manufacturers and MVPDs to ensure that consumers are able to readily
access user display settings for closed captioning on covered apparatus
pursuant to our authority under the TDCA. Congress directed the
Commission to provide performance and display standards for built-in
decoder circuitry or capability designed to display closed captioned
video programming and to take action to ensure that closed captioning
continues to be available to consumers as video programming technology
evolves. The rule we adopt herein serves these statutory directives. As
discussed below, we afford covered entities (MVPDs and manufacturers)
flexibility in how they meet this obligation, and the Commission will
determine whether settings are readily accessible to consumers by
evaluating the following factors, as described in the March 2024 joint
proposal: proximity, discoverability, previewability, and consistency
and persistence.\22\ Below we explain the public interest benefits of
these new requirements. We also describe which devices and entities are
covered by the rule, set forth exemptions for achievability and
technical feasibility, and set a compliance deadline of two years from
publication of the rule in the Federal Register.
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\22\ Although the March 2024 joint proposal does not explicitly
reference the previously proposed four factor framework, we believe
it fits within that framework. Accordingly, we adopt the contents of
the joint proposal as clarifying or modifying the meaning of the
previously proposed factors.
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``Readily Accessible.'' ``Readily Accessible'' Requirement in
General. We first require manufacturers and MVPDs to ensure that
consumers are able to readily access user display settings for closed
captioning on covered apparatus. To determine whether particular
settings are readily accessible, the Commission will require compliance
with the following factors, which we further define below: proximity,
discoverability, previewability, and consistency and persistence.\23\
Failure to comply with any of the factors may be deemed a violation of
the Commission's rules.\24\
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\23\ We note that ITI expresses vague concerns that the proposal
uses terms, definitions, and requirements that ``do not necessarily
reflect internationally-accepted practices for this technology . . .
.'' Information Technology Industry Council (ITI) 2023 Comments at
2. See also CTA/ITI 2023 Reply at 3-4 (stating that any new rules
should ``[h]armonize with existing international standards to avoid
confusion and imposing additional burdens on companies''); Letter
from Rachel Nemeth, Sr. Director, Regulatory Affairs, and Brian
Markwalter, Senior Vice President, Research & Standards, Consumer
Technology Association, to Marlene H. Dortch, Secretary, FCC, MB
Docket No. 12-108, at 2 (Apr. 28, 2023). Given the lack of specific
information in the record as to precisely what rules the Commission
should adopt in this area to ensure consistency with international
standards, we are unable to take any further action in response to
the cited pleadings.
\24\ While ACA Connects expresses concern that some of the
factors could be contradictory, we believe that is no longer the
case given the meaning of the factors we adopt below. In the event
that an allegation of non-compliance arises, the covered entity will
need to demonstrate how it has complied with the applicable
requirements. For example, if there is an allegation that a covered
entity has not provided the required employee training discussed
below, the entity could, for instance, offer information by
providing training materials and a training schedule.
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The readily accessible requirement, which the Commission will
evaluate based on the four factors, will ensure that consumers who are
deaf and hard of hearing can easily access closed captioning display
settings, while still giving covered entities flexibility in the manner
of compliance.\25\ While display settings already may be readily
accessible for some devices, using such settings generally has not been
easy for consumers.\26\ As Consumer Groups explain, ``these functional
requirements provide a workable middle ground between strict design
mandates and the laissez faire approach called for by industry
commenters, allowing the industry substantial flexibility while
requiring it to finally address the long-standing gaps in the
accessibility of closed captioning display setting interfaces.'' \27\
We believe that this approach will alleviate the challenges faced by
consumers who are deaf and hard of hearing in accessing closed
captioning and will ensure that these viewers can adjust the font,
size, color, and other features of closed captions wherever they are
watching video programming on devices without the undue complexity
experienced today. This approach is also consistent with how the
Commission has implemented accessibility requirements for closed
captioning activation mechanisms on video devices pursuant to sections
204 and 205 of the CVAA.\28\
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\25\ The adoption of flexible factors that we will require in
determining if caption display settings are readily accessible
should alleviate ACA Connects' concern that rigid standards could
``squelch innovation.'' Similarly, we expect the flexibility
inherent within the factors to alleviate ITI's concern that
stringent requirements could lead to ``a cluttered, overly-complex
user interface'' that could confuse users and have a particular
negative impact on individuals with cognitive difficulties.
\26\ For example, Consumer Groups note that changing closed
captioning settings for the most popular streaming service requires
many users to engage in a 10-step process that involves leaving the
application and navigating the service's website.
\27\ But see Letter from J. David Grossman, Vice President,
Regulatory Affairs, CTA, and Brian Markwalter, Senior Vice
President, Research & Standards, CTA, to Marlene H. Dortch,
Secretary, FCC, MB Docket No. 12-108, at 4 (June 30, 2022) (claiming
that these factors ``represent a very heavy regulatory lift that
neither the Commission nor industry has properly investigated''). We
disagree with CTA's claim, both because any regulatory burden will
be alleviated by the flexible nature of the factors, and because the
reply comments and subsequent 2023 and 2024 comments and replies did
not demonstrate that applying these flexible factors will be unduly
costly or otherwise unduly burdensome to industry. To the contrary,
we intend the factors to clarify for industry how the Commission
will evaluate whether particular settings are readily accessible.
\28\ With the exception of a Petition for Reconsideration filed
by Consumer Groups regarding use of voice control and gestures for
closed captioning activation, no party filed an appeal of the Report
and Order and Further Notice. We need not address the argument that
we lack sufficient notice to adopt the proposed factors, because the
Media Bureau subsequently issued the 2023 Caption Display Settings
Public Notice and the 2024 Caption Display Settings Public Notice
and published both documents in the Federal Register, giving notice
to all interested parties that this proposal was up for
consideration. We further note that the Commission's authority to
adopt the factors stems from the same authority it has to adopt the
readily accessible requirement generally, as discussed above.
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Proximity. In determining whether specific closed captioning
display settings are readily accessible, the Commission will require
that the settings are ``proximate.'' For this purpose, ``proximity''
requires that covered entities ``will place . . . the closed caption
display settings . . . in one area of the settings (either at the
operating system or application level) that is accessed via a means
reasonably comparable to a button, key, or icon.'' \29\ Consumer Groups
initially argued that this factor should require access to closed
captioning settings in the first level of a menu.\30\ Industry objected
to this approach as too rigid. Consumer Groups then modified their
proposed definition of ``proximity,'' clarifying that it is intended to
ensure that consumers need not navigate a lengthy set of steps and/or
switch devices or applications to access closed caption display
settings.
[[Page 66274]]
The subsequent March 2024 joint proposal did not specifically reference
that modification and instead further refined the approach to provide
that caption display settings should be available in one area of the
settings that can be accessed via a means reasonably comparable to a
button, key, or icon. We find that requiring proximity pursuant to the
revised definition is in the public interest because it will ensure
that consumers do not need to complete many steps or switch devices or
applications to access closed caption display settings, and it is
hereby required by our rules. We believe that the presence of ready
access to caption display settings is paramount to the utility of such
settings, and the ``proximity'' requirement will further that aim.
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\29\ Letter from Mary Beth Murphy, Vice President & Deputy
General Counsel, NCTA--The internet & Television Association, et
al., to Marlene H. Dortch, Secretary, FCC, MB Docket No. 12-108, at
1 (Mar. 14, 2024) (NCTA/Consumer Groups Mar. 14, 2024 Ex Parte). We
recognize that the joint proposal was to ``place all accessibility
functions--including, but not limited to, the closed caption display
settings and caption on/off--in one area of the settings. . . .''
The rules established in this Order, however, do not apply to any
accessibility functions other than closed captioning display
settings. In addition, the Commission's rules already require that
closed captioning and audio description ``can be activated through a
mechanism that is reasonably comparable to a button, key, or icon.''
47 CFR 79.109(a)(1)-(2), (b). We encourage covered entities to make
all accessibility functions, including closed captioning display
settings and caption on/off, available in the same location.
\30\ We recognize that commenters previously evaluated some of
what we now deem ``proximity'' as part of the ``discoverability''
factor. The meaning of ``proximity'' that we adopt here is tailored
to fit the joint proposal within the four-factor framework.
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Under the approach we adopt today, industry is afforded flexibility
in how precisely to ensure that closed captioning display settings are
made readily accessible pursuant to the proximity factor, so long as
the settings are available in one area that is accessible via a means
reasonably comparable to a button, key, or icon. Making closed
captioning display settings available solely or primarily through the
use of voice control likely would not be considered proximate. In an
Order on Reconsideration, the Commission previously found that closed
captioning activation mechanisms that rely solely on voice control do
not fulfill the requirement of sections 204 and 205 of the CVAA and our
implementing rules that such mechanism be reasonably comparable to a
button, key, or icon. The Commission was persuaded by a Petition for
Reconsideration filed by Consumer Groups indicating that voice
activation is not simple and easy to use for many individuals who are
deaf and hard of hearing. We believe that a similar rationale applies
here. We cannot find that caption display settings are reasonably
accessible if many of the individuals who are intended to benefit from
the settings, in other words those consumers who are deaf and hard of
hearing, would not actually be able to access them. As in the Order on
Reconsideration, we clarify that covered entities are not prohibited
from using voice controls to provide access to the area of the settings
that contains the closed captioning display settings as long as there
is an alternative way that is reasonably comparable to a button, key,
or icon for individuals who are deaf and hard of hearing to readily
access closed captioning display features. In addition, CTA indicated
that at least one device manufacturer was considering a long press of a
button on the remote to bring up closed captioning display settings.
Compliance with the factors we adopt today is a fact-specific
determination, and as a result, we decline to rule definitively on
whether any particular means of providing closed captioning display
settings is ``readily accessible.'' We agree with CTA that the long
press of a remote control button may be consistent with the proximity
requirement, which requires a mechanism reasonably comparable to a
dedicated button, key, or icon, but we emphasize that the long press,
like any mechanism, also would need to be evaluated to determine
compliance with each of the other factors to be considered readily
accessible.
Discoverability. In determining whether specific closed captioning
display settings are readily accessible, the Commission will require
that the settings are ``discoverable.'' For this purpose, to ensure
that the settings are ``discoverable,'' covered entities must: (1)
conduct usability testing to determine if caption display settings can
be easily found by working with consumers and disability groups as part
of the testing process; (2) make good faith efforts to correct problems
identified during the consumer testing process; and (3) train customer-
facing employees on how to advise customers with regard to caption
display settings. This approach is consistent with the March 2024 joint
proposal between NCTA and Consumer Groups. We note that as proposed in
some comments, discoverability would have considered whether it is
simple and intuitive for a viewer to find closed captioning display
settings. Some commenters objected to that formulation as too
subjective. The formulation in the March 2024 joint proposal that we
adopt here has the benefit of being more objective because it requires
entities to conduct usability testing, demonstrate efforts to address
problems that arise during such testing, and train customer-facing
employees. In addition, this approach is not superfluous of any other
existing or new requirement.\31\ We believe that discoverability, the
ability to find the settings, is central to users' ability to benefit
from and receive the value of closed captioning and is therefore in the
public interest and is hereby required by our rules. We decline to
specify the type of employee training that must be provided, instead
concluding that regulated entities should retain flexibility to
determine the type of employee training needed in their particular
circumstances to ensure that settings are discoverable.
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\31\ We note that manufacturers and MVPDs are already required
to provide information to consumers about how to access and use
accessibility features on devices. See 47 CFR 79.107(a)(5) and (d)-
(e), 79.108(d) and (f). The new employee training requirement will
provide further consumer benefits.
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Previewability. In determining whether specific closed captioning
display settings are readily accessible, the Commission will require
that the settings are ``previewable.'' For this purpose,
``previewability'' means whether viewers are able to preview the
appearance of closed captions on programming on their screen while
changing the closed captioning display settings. As explained in the
March 2024 joint proposal between NCTA and Consumer Groups, previewed
captions must appear ``via a caption box overlaying the programming,''
such that [c]ustomers will still be able to see the underlying
programming. . . .'' The caption preview may include ``stock text or
caption previews, rather than the captions carried on the specific
program,'' which ``will enable customers to preview captions even in
situations where the channel the customer is watching may not include
captions at a particular time, e.g., during a commercial break or
portions of programming that are uncaptioned due to the nature of the
content.'' Although the Commission's rules already require apparatus to
enable ``the user to preview default and user selection of the caption
features required by this section,'' \32\ that provision does not
require the preview function to be accessible without exiting the
programming. We find that requiring previewability to the extent
described herein is in the public interest because it will enable a
viewer to see how particular caption display settings work with the
program the viewer is watching, and it is hereby required by our
rules.\33\ A previewability requirement as defined herein will make it
efficient for consumers to adjust captions, while giving designers
flexibility as to precisely how they modify their interfaces to
facilitate previewability.
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\32\ 47 CFR 79.103(c)(10).
\33\ We believe this requirement is consistent with CTA's
position that when consumers view video programming on smaller
screens they may need to scroll to permit full visibility of all
display settings.
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Consistency and Persistence. In determining whether specific closed
captioning display settings are readily accessible, the Commission will
require that the settings are ``consistent and persistent.'' In keeping
with the March 2024 joint proposal, for this purpose,
[[Page 66275]]
``consistency and persistence'' means: (1) MVPDs that provide
navigation devices must ``expose closed caption display settings via an
application programming interface (API) that an over-the-top app
provider can use upon launch of their app on the device,'' \34\ the API
must ``enable the app provider to use the device-level caption settings
for its own content, if it chooses,'' and ``covered entities must
notify application developers about this API or similar method through
any reasonable means;'' (2) MVPDs that provide their own video
programming app hosted on third-party devices ``will [utilize] the
operating system-level closed caption settings of the [apparatus] upon
launch of the app on the device;'' and (3) manufacturers must ensure
that such apparatus ``make[ ] those settings available to applications
via an API or similar method.'' \35\ Consumer Groups have explained the
difficulties of using different settings for each application on the
same platform, and of maintaining the same settings across different
platforms. As Consumer Groups explain, a consistency and persistence
requirement will subject consumers to ``fewer procedures to customize
captions for the same service used on different devices and for
different services accessed on the same device,'' which will reduce the
frequency with which consumers must adjust captions.
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\34\ An API is an application programming interface. We
understand that some devices or applications covered by our rules
may use other tools comparable to APIs, such as application
programming kits (APKs) or software development kits (SDKs). All
references herein to APIs shall be read to include any such
comparable development tools that allow one device or application to
coordinate with another.
\35\ NCTA/Consumer Groups Mar. 14, 2024 Ex Parte at 2; Letter
from Mary Beth Murphy, Vice President & Deputy General Counsel,
NCTA, to Marlene H. Dortch, Secretary, FCC, MB Docket No. 12-108, at
3 (July 12, 2024) (NCTA July 12, 2024 Ex Parte). Consistent with
CTA's ex parte filing, we clarify that compliance with (1) and (2)
above focuses on MVPDs as entities that provide customers with
access to video programing through navigation devices or the MVPD's
own apps that customers access on third party devices. Compliance
with (3) above reflects similar requirements for manufacturers as
entities that manufacture apparatus. Consistent with NCTA's ex parte
filing, language in (1) above fortifies a requirement from the joint
proposal. One example of a ``reasonable means'' for the required
notice would be ``a developer portal the developer must use to get
its app onto the device.'' NCTA July 12, 2024 Ex Parte at 3.
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The approach to consistency and persistence that we adopt today is
narrower than the approach previously advocated by the Consumer Groups,
which would have required covered entities to ensure that their closed
captioning display settings are consistent when the same service is
used on different devices and persistent when different services are
used on the same device. Industry raised several significant concerns
with this broader definition of the ``consistency and persistence''
factor. We believe that the narrower approach to consistency and
persistence that we adopt today, which includes specific requirements
that are tailored to the role of each party, will help make display
settings more readily accessible to users and therefore is in the
public interest.
We recognize that any consistency and persistence requirement could
raise certain issues, including how caption display settings should be
stored and transmitted, how to address privacy and competitive
implications that may arise, and whether to prioritize a preset setting
versus a conflicting setting that a user subsequently inputs or a
setting input on a device versus a conflicting setting input on an
application accessed via the device. However, we do not believe these
implementation issues are impediments to the development of solutions
that satisfy the consistency and persistence requirement as defined
here and we agree with NCTA that these issues ``should not stop the
Commission from taking positive steps now to benefit consumers.'' With
respect to CTA's objection that the requirement could compel disclosure
of sensitive personal information in violation of state or federal
privacy laws, we find that such objections are vague and
unsubstantiated and we disagree that the requirements adopted here to
provide consumers with consistent settings when different services are
used on the same device would have such a result.\36\ Similarly, while
CTA explains that a television has no way to know if the person using
it is the most recent user or a guest, the API-based approach set forth
in the joint proposal still will improve the consumer experience and we
do not believe that advancements in accessibility should be stalled
because video equipment may be accessed by multiple viewers. To the
extent compliance concerns remain even with the narrower approach we
adopt today, we note that ``achievability'' and ``technical
feasibility'' exemptions remain available to covered entities, as
discussed further below.
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\36\ CTA's comments do not cite any specific state or federal
privacy statute or case law that would be implicated by the rule we
adopt or describe how the requirement could potentially violate such
requirements.
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Public Interest Benefits of New Display Settings Requirement. We
find that the public interest benefits outweigh the costs for a
requirement that the closed captioning display settings be readily
accessible. In enacting the TDCA, Congress stated that ``to the fullest
extent made possible by technology,'' persons who are deaf and hard of
hearing ``should have equal access to the television medium.'' In the
Second FNPRM, the Commission stated that there are important public
interest considerations that weigh in favor of ensuring that consumers
are able to readily access user display settings for closed captioning.
The record supports the continued need for this access, providing
numerous examples of user interfaces across various popular platforms,
services, and devices that are apparently not readily accessible.\37\
When it adopted technical standards for the display of closed captions
on digital television receivers, the Commission concluded that ``[o]nly
by requiring decoders to respond to these various [display] features
can we ensure that closed captioning will be accessible for the
greatest number of persons who are deaf and hard of hearing, and
thereby achieve Congress' vision.'' According to Consumer Groups, the
ability to alter font, size, color, and other display features of
captions is ``a critical component of accessing closed captioning'' for
individuals who are deaf and hard of hearing, allowing them to change
the appearance of captions to best meet their particular needs.
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\37\ While the record also contains examples of some accessible
user interfaces, that does not change the fact that many user
interfaces are not readily accessible.
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Although the rules the Commission adopted in 2000 were intended to
provide consumers with the benefits of customizing the appearance of
closed captions, these features are not readily accessible to many
consumers who are deaf and hard of hearing. When consumers cannot
readily access the closed captioning display settings, the benefits of
our rule allowing the customization of closed caption display are
greatly diminished. Consumer Groups explained in 2016 that ``many
consumers face the intimidating and frustrating technical barrier of
display settings that are difficult to locate and utilize, which
prevents viewers from being able to easily customize the captions to be
readable.'' There is little evidence in the record of significant
progress since the Commission proposed caption display settings
requirements in 2015. Having to take cumbersome steps to access display
settings that make closed captions readable may discourage individuals
who are deaf and hard of hearing from using closed captioning to make
video programming accessible. If consumers
[[Page 66276]]
are unable to read default captions (e.g., if the size of the font is
too small) and are unable to locate and use display settings to change
the appearance of the captions, they are precluded from using closed
captioning at all.
As explained above, our action ensures that the Commission can meet
its continuing obligation under the TDCA to take appropriate action to
ensure that closed captioning remains available to consumers as new
video technology is developed. As Consumer Groups explain, making
closed captioning display settings easy to find and use is especially
important given the multitude of devices and programming options
available to consumers today, which may each require customization to
suit a user's needs.\38\ We agree with Consumer Groups that ``the[ ]
goals of removing technical barriers and ensuring practical
accessibility and readability of captions would all be advanced by the
proposed rule.'' The benefits of the rule will extend not only to the
deaf and hard of hearing population, but also to other members of the
public that utilize closed captioning, including in public places such
as restaurants, bars, hotels, hospitals, and nursing homes.
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\38\ We thus disagree with ACA Connects' contention that the
Commission has failed to identify ``how the continued availability
of closed captioning service would be frustrated in the absence of
consumers' ability to readily access closed captioning display
settings.'' Rather, we agree with Consumer Groups that consumers
must be able to readily access closed captioning display settings to
ensure that those captions are readable.
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While the record reflects that there will be some costs to industry
to comply with the rule we adopt herein, we find that the substantial
benefits to consumers outweigh those costs. In the Second FNPRM, we
inquired about the costs of the proposal as well as the impact of the
proposed rule on small entities. The record does not contain any
specific figures or estimates quantifying the costs of compliance.
However, industry commenters indicate that modifying access to closed
captioning display settings may be ``a significant undertaking
involving design, development, testing, and manufacture [and] involving
coordination among `multiple internal and external design and
engineering teams.' '' \39\ These commenters assert that the efforts
will involve more than a small software modification, but they do not
allege that these efforts would be prohibitively burdensome or costly.
Other industry commenters state that ``[a]dopting a new requirement
regarding closed caption display settings . . . would chill
innovation.'' \40\ However, we find that the flexibility allowed in
determining how to comply will mitigate this possibility. Taking into
account the industry comments, we find that the extensive benefits
outlined above will outweigh the compliance costs to industry. The
benefits extend to the approximately 48 million Americans who are deaf
and hard of hearing, as well as to the DeafBlind community and the
millions of individuals with low vision, including many senior
citizens.\41\ As Consumer Groups state, ``The ability to adjust
captioning settings is particularly essential for people who have both
hearing and vision disabilities. For example, people who are DeafBlind,
low vision or color blind often rely on high-contrast visuals and
interfaces to be able to read information on screens. By ensuring that
these individuals can easily find and adjust the caption display
settings, the rules we now adopt will provide the autonomy needed for
these individuals to independently customize captions on their own--
i.e., to select the color, size, and contrast that best fits their
personalized needs for optimal readability and comprehension of
content. Enhancing access to video programming in this manner will
ensure that such individuals can fully benefit from the news,
information and entertainment that video programming makes available to
the rest of the general public.'' We also believe that the costs of
compliance will be mitigated because we give covered entities
flexibility in the manner of compliance, which allows them to choose a
cost-effective solution, and because the requirements do not apply to
third-party, pre-installed applications. Further, to the extent there
are companies that already provide closed captioning display settings
in a readily accessible manner, they will not need to incur any
additional costs to comply.
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\39\ CTA 2016 Reply at 7 (quoting Telecommunications Industry
Association (TIA) 2016 Comments at 2.
\40\ CTA 2022 Comments at 1; CTA 2023 Comments at 8 (``Locking
in user interfaces to conform to the Advocacy Groups' proposal can
slow future innovation and degrade the experience of individuals
seeking to adjust more than just closed captioning display
settings.'').
\41\ Individuals who are low vision and also rely on closed
captions may need to modify caption settings to make the captions
readable.
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In the initial comment period, industry commenters asserted that
the Commission should take a ``wait-and-see approach'' to determine if
additional accessibility rules are necessary. In particular, industry
commenters asserted that manufacturers had been working hard to comply
with the accessible user interfaces requirements adopted pursuant to
sections 204 and 205 of the CVAA, which were subject to a December 20,
2016 compliance deadline, and that it was premature for the Commission
to adopt new rules before evaluating the technical innovations
developed by covered entities to meet these accessibility obligations.
However, while the accessible user interfaces rules require that closed
captioning be activated by a mechanism reasonably comparable to a
button, key, or icon on digital apparatus and navigation devices, these
requirements do not govern how closed captioning display settings
should be accessed on such devices. Further, the record at that time
contained few specific examples of how closed captioning display
settings actually would be made available to consumers after the
December deadline. While the accessible user interface rules and the
2016 compliance deadline were not intended to address access to closed
captioning display settings, the Commission now has the benefit of a
refreshed record that reflects a lack of progress since the 2016
deadline, and a basis to find that the closed captioning display
setting requirements the Commission initially proposed remain
necessary. Thus, we do not believe that the section 204 and 205
accessibility requirements obviate the need for Commission action with
respect to closed captioning display settings, and we see no reason to
further delay rules that are sorely needed by consumers who are deaf
and hard of hearing to address the ``long and frustrating history'' of
inaccessible display settings.\42\
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\42\ See Consumer Groups 2013 Comments at 8. See also Consumer
Groups 2016 Reply at 4 (``These unsupported assurances stand in
stark contrast to the experiences of Consumer Groups, which indicate
that closed captioning settings remain difficult to access and, in
many instances, are becoming less accessible.'') (footnote omitted).
We thus reject the argument of CTA that rather than adopt new
requirements, the Commission ``should encourage industry to continue
to respond to user experiences, research and feedback to offer
improved user interfaces that benefit all consumers, including those
with disabilities.'' CTA 2023 Comments at 11-12.
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Covered Devices. As proposed in the Second FNPRM, the rule we adopt
herein applies to the devices covered by section 303(u) of the Act--
apparatus designed to receive or play back video programming
transmitted simultaneously with sound, if such apparatus is
manufactured in the United States or imported for use in the United
States and uses a picture screen of any size, as interpreted
consistently with our precedent in the IP Closed Captioning Order,
except that,
[[Page 66277]]
consistent with the joint proposal, the readily accessible requirements
do not apply to third-party, pre-installed applications.\43\ Further,
consistent with our precedent, the following are not subject to the
requirements adopted herein: (1) apparatus exempt from the requirement
to be equipped with built-in closed caption decoder circuitry or
capability designed to display closed-captioned video programming
(e.g., display-only video monitors, and professional or commercial
equipment); (2) equipment for which the requirement has been determined
to be not achievable or technically feasible; or (3) equipment for
which the requirement has been waived (e.g., apparatus primarily
designed for purposes other than receiving or playing back video
programming). In CVAA orders subsequent to the IP Closed Captioning
Order, the Commission consistently interpreted the term apparatus to
include only applications that are pre-installed by the device
manufacturer or that the manufacturer requires the consumer to install
after sale. However, the Commission stated that it ``will continue to
monitor the development of accessible technology in this area and will
reevaluate whether we should require the accessibility of consumer-
installed MVPD applications at a later date if it appears necessary to
ensure access to MVPD programming'' by persons with disabilities.
Although at that time the Commission observed that there are technical
challenges in ensuring that consumer-installed MVPD applications comply
with accessible user interface requirements, we recognize that the
industry is constantly evolving. Similarly, for purposes of the readily
accessible requirement, we credit the decision of the joint proposal to
exclude both consumer-installed applications and third-party, pre-
installed applications.\44\ The exclusion of third-party, pre-installed
applications is reasonable in this instance because inclusion would
``pose substantially more practical and technical difficulties'' \45\
due to the types of requirements that are at issue herein--for instance
customer service training and usability testing--and the independence
of app developers on the one hand and MVPDs and manufacturers on the
other. However, we intend to continue to monitor the constantly
evolving video programming industry to ensure that people with
disabilities are not left behind. Accordingly, if we find that MVPDs
and/or manufacturers are not making their applications accessible, or
if third-party, pre-installed applications, or new technologies,
present accessibility challenges because display settings are not
readily accessible, the Commission will consider initiating a
rulemaking to determine whether we should impose additional readily
accessible requirements.\46\
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\43\ We note that section 303(u) imposes requirements on
apparatus ``if technically feasible.''
\44\ We note that the Consumer Groups request that in light of
NCTA's clarification of the joint proposal with respect to the
exclusion of third-party, pre-installed applications for MVPDs that
the Commission consider whether the same concerns exist for device
manufacturers. NCTA clarifies that this joint proposal exclusion is
contemplated for both MVPDs and manufacturers and CTA notes the
importance to consumers ``of a consistent experience across covered
entities with respect to pre-installed applications.'' We agree and
include the exclusion for all covered entities.
\45\ Letter from Mary Beth Murphy, Vice President & Deputy
General Counsel, NCTA, to Marlene H. Dortch, Secretary, FCC, MB
Docket No. 12-108, at 1 (July 10, 2024).
\46\ In the absence of such a rulemaking, we do not at this time
require MVPDs or manufacturers to provide software updates that they
would not otherwise provide.
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Consumer Groups agree that the rule should be applied broadly to
the full range of devices covered by section 303(u) of the Act, which
would ``promote Congress's goal of ensuring that closed captioning is
available to consumers.'' AT&T and CTA, on the other hand, argue that
the Commission's authority with respect to the TDCA is limited to the
accessibility of broadcast television receivers. Contrary to the
contention of these industry commenters, the Commission has authority
under sections 303(u) and 330(b) of the Act to apply its new rules for
consumer access to closed captioning display settings to apparatus
beyond broadcast televisions. Although Congress's focus at the time of
enactment of the TDCA was on broadcast television-related technical
standards, that does not preclude a broader interpretation today.
Section 303(u)(1), by its terms, applies broadly to all ``apparatus
designed to receive or play back video programming transmitted
simultaneously with sound.'' Although this phrase is not defined in the
statute, Congress had amended the original language in 303(u), which
had referred to ``apparatus designed to receive television pictures
broadcast simultaneously with sound.'' The Commission has interpreted
section 303(u)(1)'s scope broadly. The Commission's interpretation of
section 303(u) as extending beyond broadcast televisions thus reflects
the ordinary meaning of the statute. Because section 330(b), in
pertinent part, simply refers to the ``apparatus described in section
303(u),'' our analysis of the scope of section 330(b) mirrors our
interpretation of the scope of section 303(u).
Covered Entities. Both manufacturers of covered apparatus and MVPDs
are responsible for compliance with the rule we adopt herein. The
Commission sought comment in the Second FNPRM on whether both
manufacturers and MVPDs should be obligated to make it easier for
consumers to locate and control closed captioning display settings.
Consumer Groups argue that manufacturers and MVPDs should share
responsibility in ensuring that consumers can locate and use display
settings, particularly because MVPDs have ongoing relationships with
subscribers who are likely to turn to them to resolve any issues with
accessibility features. We are persuaded by Consumer Groups that there
are significant benefits of imposing these requirements on MVPDs as
well as manufacturers, including that a consumer who is viewing video
programming via an MVPD service would be more likely to contact the
MVPD for assistance with user display settings. Industry commenters
argue that the TDCA cannot be applied to MVPDs because the Commission's
prior rulemakings implementing the TDCA imposed requirements only on
manufacturers. We disagree. Whereas the initial order in this
proceeding applied certain rules to navigation devices, which were the
responsibility of MVPDs, and certain rules to apparatus, which were the
responsibility of manufacturers, the overall result was that both
manufacturers and MVPDs were subject to the requirements. Similarly in
this Order, we hold MVPDs responsible for the apparatus they distribute
to consumers, and manufacturers responsible for the apparatus they
manufacture.
While the joint proposal submitted in March 2024 was focused on the
cable context, it indicated that ``the proposals could also serve as a
model for other MVPDs and equipment manufacturers.'' We believe that it
is appropriate and reasonable to adopt the joint proposal to apply to
all covered entities. The Media Bureau specifically sought comment on
whether the joint proposal should ``apply broadly to the devices
covered by section 303(u) of the Communications Act of 1934, as
amended, and to both manufacturers of covered apparatus and MVPDs.'' In
response, CTA argued that the Commission ``should not hold
manufacturers responsible for aspects of the complex video ecosystem
that they do not control and over which they do
[[Page 66278]]
not have sufficient leverage to require compliance with regulatory
obligations.'' We agree, and we note that the rules we adopt today hold
manufacturers responsible for apparatus they manufacture and MVPDs
responsible for apparatus they provide to their customers. We agree
with Consumer Groups that ``just because responsibilities need to be
coordinated among various video programming participants is no reason
for these responsibilities not to be mandated and fulfilled.'' \47\
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\47\ Consumer Groups state further that the Commission
previously apportioned responsibilities among some of the same
entities when it adopted the IP closed captioning requirements in
2012, and the television closed captioning quality requirements in
2016.
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We agree with Consumer Groups that we have the authority to apply
the rules we adopt today to MVPDs, as well as manufacturers. Sections
303(u) and 330(b) of the Act operate in tandem. Under section 303(u),
the Commission establishes requirements for covered apparatus to be
equipped with closed captioning, audio description, and emergency
information capability. The first sentence of section 330(b) of the
Act, in turn, states that ``[n]o person shall ship in interstate
commerce, manufacture, assemble, or import from any foreign country
into the United States'' any apparatus that fails to satisfy the
requirements adopted pursuant to section 303(u) of the Act. In other
words, the duty to meet the apparatus requirements adopted under
section 303(u) applies to any person engaging in the activities
identified in section 330(b). MVPDs regularly ``ship in interstate
commerce'' or ``import . . . into the United States'' the set-top boxes
that they distribute to customers. In this respect, the requirements
adopted under section 303(u)(1)(A) relating to closed captioning
capability flow through to MVPDs by restricting the devices they can
ship or import for distribution to their customers. We therefore
conclude that, pursuant to the express terms of section 330(b), which
states that ``no person shall'' engage in the specified activities, we
will apply our new rule implementing sections 303(u) and 330(b) of the
Act to MVPDs for the purpose of proscribing the actions enumerated in
the first sentence of section 330(b).\48\
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\48\ This approach is consistent with our existing apparatus
rules governing the accessibility of video programming, which apply
to MVPDs to the extent that they engage in the enumerated
activities.
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Although the statute defines the term ``interstate commerce,'' it
does not separately define the phrase ``ship in interstate commerce,''
or provide express guidance on how that phrase should be applied to
specific types of shipments. We therefore interpret this phrase in a
way that best reflects the ordinary meaning of the text and meets the
statutory objectives of section 330(b) and section 303(u). We believe
it is best to interpret the phrase to apply to the entire
transportation path from the point at which the goods leave the
seller's warehouse to the point at which the buyer, such as an MVPD,
delivers the goods to its own customers--in this context an MVPD's
subscribers. Thus, we conclude that the term ``interstate commerce''
encompasses ``commerce'' in apparatus deployed by MVPDs to their
subscribers, and we interpret the phrase ``no person shall ship in
interstate commerce'' to proscribe an MVPD's deployment of noncompliant
set-top boxes or other covered apparatus to subscribers' premises after
the applicable compliance deadline, where covered apparatus originated
from out of state or traversed state lines.
Our conclusion is supported by cases in which the phrase ``in
interstate commerce'' has been interpreted to refer to the entire
stream or flow of commerce with respect to a product. Those cases hold
that the flow of interstate commerce does not end once an intrastate
shipment begins where a seller transporting goods intrastate ``made
interstate sales or was `otherwise directly involved in national
markets' or . . . the `local market . . . is an integral part of the
interstate market in other component commodities or products.' '' \49\
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\49\ Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195-96
(1974) (cited in Able Sales v. CAPR, 406 F.3d56, 64 (1st Cir.
2005)). We recognize that specific outcomes under a flow of commerce
analysis can vary somewhat in different decisions and in different
contexts. In interpreting section 330 of the Act, we need not, and
do not, seek to replicate the specific approach taken in any of
those other regulatory contexts, but draw upon principles from that
precedent that are useful, including in carrying out the goals and
purposes of the Act.
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In the circumstances at issue here, MVPDs are an active link in the
continuous flow of equipment to their subscribers. They typically order
equipment from manufacturers that is shipped interstate for deployment
to their subscribers. Thus, an MVPD is the pivotal intermediary between
the apparatus manufacturer and the MVPD's subscribers, essentially
making choices on behalf of its subscribers. This is materially
different from situations in which a manufacturer sells to a
wholesaler, the wholesaler sells to multiple retailers, and consumers
shop at retailers and decide what to buy. Under these circumstances, we
find that MVPDs engage in interstate commerce when they procure
equipment across state lines and deploy it to subscribers to enable
them to view their programming.
This conclusion is reinforced by the statutory context. The statute
is intended to protect consumers with disabilities by ensuring that
equipment that the MVPD selects on their behalf serves their needs. In
this context, it makes sense to view all of the links in the chain as a
continuous stream of commerce ultimately destined for the MVPD
subscriber.\50\ And given the MVPD's intermediary role, interpreting
the phrase ``ship in interstate commerce'' to apply to the MVPD's
deployment of apparatus to subscribers' premises best reflects the
ordinary meaning of the statutory text and best serves the statutory
purpose of ensuring that all consumers who are deaf and hard of hearing
should have equal access to television programming. In light of this
statutory purpose, and against the backdrop of judicial precedent
interpreting the phrase ``in interstate commerce,'' we conclude that an
MVPD that procures covered apparatus from a manufacturer located in
another state or foreign country and deploys it to subscribers is
shipping apparatus in interstate commerce.\51\ Accordingly, we
interpret the phrase ``no person shall ship in interstate commerce'' as
prohibiting MVPDs from deploying non-compliant apparatus to subscribers
after the applicable compliance deadline. Further, from a
[[Page 66279]]
policy perspective, we agree with Consumer Groups that MVPDs play an
integral role in ensuring that closed captioning service is available
because, unlike manufacturers, they have an ongoing relationship with
consumers. In addition, to the extent any MVPD manufactures covered
apparatus, we note that section 330(b) applies to such MVPDs for that
reason alone. For all of these reasons, the statutory language and
policy objectives both support application of the rule to MVPDs.
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\50\ The legislative history does not discuss the definition of
``interstate commerce.'' It appears that congressional deliberations
were informed by the 1960 legal opinion of the FCC's then-General
Counsel, John L. Fitzgerald, which observed: ``The congressional
power under the commerce clause is not confined simply to the
regulation of commerce among the states but extends to those
activities intrastate which so affect interstate commerce as to make
regulation of them proper means to the attainment of a legitimate
end.'' See All Channel Television Receivers and Demixture, Hearings
Before the Committee on Interstate and Foreign Commerce, House of
Representatives, on HR. 8031 et al. at 124-25, 128 (Mar. 5, 6, 7,
and 9, 1962) (including the 1960 Legal Opinion of FCC General
Counsel John L. Fitzgerald for the record). See also H. Rep. No. 87-
1559 at 6 (Apr. 9, 1962) (discussing the constitutionality of the
All Channel Television Receivers Act and noting opinions provided by
the FCC's General Counsel and the Department of Justice); S. Rep.
No. 87-1526 at 5 (May 24, 1962) (same).
\51\ The MVPD is shipping apparatus ``within the flow of
interstate commerce--the practical, economic continuity in the
generation of goods and services for interstate markets and their
transport and distribution to the consumer.'' Gulf Oil Corp., 419
U.S. at 195. See also FCC General Counsel Opinion at 128 (``The
congressional power under the commerce clause is not confined simply
to the regulation of commerce among the states but extends to those
activities intrastate which so affect interstate commerce as to make
regulation of them proper means to the attainment of a legitimate
end.'').
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Waivers and Exemptions. Achievability. Because we derive our
authority for the rule we adopt herein from section 303(u)(1) of the
Act, we find that the requirement for readily accessible caption
display settings for covered apparatus that use a picture screen less
than 13 inches in size is subject to the achievability provision set
forth in section 303(u)(2)(A). Section 303(u)(2)(A) of the Act, as
amended by section 203 of the CVAA, specifies that apparatus described
in section 303(u)(1) that use a picture screen that is less than 13
inches in size must meet the requirements of that section only if such
requirements ``are achievable (as defined in section 617 of this
title).'' In the Second FNPRM, the Commission sought comment on whether
the provisions related to achievability in section 303(u) of the Act
apply to the requirement that consumers be able to readily access user
display settings for closed captioning. Industry commenters argued that
we should allow covered entities to seek an exemption on the grounds of
achievability, while Consumer Groups argued that it is unnecessary to
adopt an achievability exemption because compliance with the rule will
involve only a minor software modification. We find that covered
apparatus that use a picture screen less than 13 inches in size must
meet the requirements of section 303(u)(1), which requires covered
apparatus to be equipped with built-in closed caption decoder circuitry
or capability designed to display closed captioned video programming,
only if such requirements ``are achievable.''
The Act defines ``achievable'' to mean ``with reasonable effort or
expense,'' as determined by the Commission. The Commission will
determine whether compliance is ``achievable'' on a case-by-case basis,
consistent with the approach taken by the Commission when implementing
section 203 of the CVAA.\52\ In particular, the Commission will
consider the following factors in determining whether compliance with
the requirements adopted herein is achievable in particular
circumstances: (1) the nature and cost of the steps needed to meet the
requirements of this section with respect to the specific equipment or
service in question; (2) the technical and economic impact on the
operation of the manufacturer or provider and on the operation of the
specific equipment or service in question, including on the development
and deployment of new communications technologies; (3) the type of
operations of the manufacturer or provider; and (4) the extent to which
the service provider or manufacturer in question offers accessible
services or equipment containing varying degrees of functionality and
features, and offered at differing price points. If a covered entity
believes that it is not achievable for it to comply with the rule we
adopt herein, it may either (i) seek a determination from the
Commission that compliance with the rule is not achievable before
manufacturing or importing the apparatus; or (ii) raise as a defense to
a complaint or Commission enforcement action that a particular
apparatus does not comply with the rules because compliance was not
achievable.\53\ If a party seeks a determination of achievability
before manufacturing or importing the apparatus, it should follow the
procedures for an informal request for Commission action pursuant to
Sec. 1.41 of our rules.
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\52\ The Commission will rely on the existing provision in Sec.
79.103(b)(3) of its rules.
\53\ To provide one example, CTA expresses concern ``that on
small or less sophisticated devices, overlaying the captioning menu
over currently playing video may be challenging to implement on some
combinations of hardware and operating systems.'' To the extent a
manufacturer has this concern about a particular device, it may seek
to avail itself of the achievability provision.
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Technical feasibility. In the Second FNPRM, we also sought comment
on whether the technical feasibility exemption in section 303(u) of the
Act applies to the requirement that consumers be able to readily access
user display settings for closed captioning. As discussed above, we
find that it does. In particular, the requirements set forth in section
303(u) of the Act, including the requirement that covered apparatus be
equipped with built-in closed caption decoder circuitry or capability
designed to display closed captioned video programming, apply only ``if
technically feasible.'' According to industry commenters, the
Commission should permit covered entities to seek an exemption based on
technical infeasibility. Consumer Groups, on the other hand, contend
that the Commission should not adopt a technical feasibility exemption
because compliance can be achieved through a simple technical
modification, making such an exemption unnecessary. However, section
303(u) clearly specifies that compliance is required only ``if
technically feasible.''
We interpret the term ``technically feasible'' consistent with
Commission precedent. Notably, to demonstrate that compliance is
technically infeasible, covered entities must show that changes to the
design of the apparatus to make closed captioning display settings
readily accessible are not physically or technically possible, and not
just that they are ``merely difficult.'' We permit parties to raise
technical infeasibility as a defense when faced with a complaint
alleging a violation of the apparatus requirements adopted herein, or
to file a request for a ruling under Sec. 1.41 of the Commission's
rules as to technical infeasibility before manufacturing or importing
the product.
Legacy navigation devices. We decline to adopt a blanket exemption
for ``legacy navigation devices that are provided by small and medium-
sized MVPDs,'' as ACA Connects advocates.\54\ To the extent ACA
Connects is concerned about devices that were manufactured prior to the
compliance deadline, any such concern should be alleviated by our
decision not to apply the requirements to such apparatus. It appears
that ACA Connects' concern applies to such previously manufactured
devices, but to the extent the concern extends to some other category
of devices, we reiterate that the waiver and exemption processes
adopted herein are available to MVPDs on a case-by-case basis. Because
the record does not indicate that an MVPD would need to avail itself of
an exemption or extension for every ``legacy navigation device,'' we
find that the availability of case-by-case waivers or exemptions is a
preferable solution to an overbroad blanket exemption.
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\54\ ACA Connects defines ``legacy navigation device(s)'' as
``any set-top box or navigation device that MVPDs sell or lease to
their subscribers that provides access to the MVPDs' `closed
systems' by decrypting MVPD video programming streams for display on
television receivers.''
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Streamlined process for small and medium-sized providers. ACA
Connects asks the Commission to adopt a streamlined waiver process for
small and medium-sized providers, enabling them to obtain a waiver
without the use of any external resources. We find that the existing
waiver and exemption processes are sufficiently flexible to be workable
for small and mid-sized providers. Providers have the flexibility to
raise achievability and technical feasibility either prior to
manufacture or
[[Page 66280]]
in response to a complaint. Adopting a different process here for small
and medium-sized providers would be inconsistent with prior orders
adopting the same achievability and technical feasibility provisions.
ACA Connects has failed to justify why the same process that has been
used in prior proceedings implementing the same provisions should be
modified here.
Compliance Deadline. We adopt a compliance deadline after the
Office of Management and Budget completes its review of any new or
modified information collection requirements under the Paperwork
Reduction Act or two years after publication of the Third Report and
Order in the Federal Register, whichever is later. In the Second FNPRM,
we inquired about the appropriate time frame for requiring covered
entities to ensure that consumers are able to readily access user
display settings for closed captioning.\55\ According to Consumer
Groups, ``[i]ncluding user display settings in the first level of a
menu would require only a small software modification and would not
require any hardware design changes,'' and thus, an extended period to
come into compliance is unnecessary. CTA disputes this contention,
arguing that Consumer Groups ``fail[ ] to acknowledge the complexity of
implementing rules regarding closed captioning display settings.'' \56\
NCTA, TIA, AT&T, and EchoStar request at least two years to comply,
while CTA and ACA Connects assert that three years is a reasonable
implementation period. Consumer Groups initially sought a one year
compliance deadline, but in the comment cycle following the March 2024
joint proposal they requested two years.
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\55\ In particular, we sought comment on Consumer Groups'
request that the compliance deadline coincide with the December 20,
2016 deadline for the requirement to provide an accessible closed
captioning activation mechanism pursuant to sections 204 and 205 of
the CVAA. Given the passage of time, Consumer Groups' proposal to
use that deadline has become moot.
\56\ Providing greater specificity, EchoStar explains that
making display settings available in the top level of a menu would
require EchoStar to rewrite software for each set-top box remote
control based on its current design and would require EchoStar to
rewrite both the factory code and production code for all types of
set-top boxes that it manufactures. As EchoStar explains, ``[t]his
factory code controls the default accessibility features for the
set-top box which the consumer can customize as part of the
installation process. Once the set-top box is connected to a
properly aimed satellite dish, [a] production code specific to each
set-top box model is downloaded and used in normal operation.''
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Based on our review of the record, we adopt the compliance deadline
included in the joint proposal as clarified in ex parte presentations.
Specifically, compliance is required for devices that use next
generation operating systems deployed more than two years after
publication of the Third Report and Order in the Federal Register. We
find the compliance deadline is reasonable, though we encourage covered
manufacturers and MVPDs to offer readily accessible closed captioning
display settings as soon as it is technically feasible for them to do
so. Consistent with the initial order in this proceeding, the
requirements adopted herein will not apply to devices manufactured
prior to the deadline.\57\ MVPDs should, however, ``provide new
equipment upon request to any customer who is deaf or hard of
hearing,'' as stated in the March 2024 joint proposal. MVPDs should
provide notice to customers who are deaf or hard of hearing when new
operating systems are deployed. Based on the record, it appears that
the requirement to make closed captioning display settings readily
accessible may involve more than a ``small software modification.''
Even software changes may involve a more substantial design and
development process than a simple update.
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\57\ ACA maintains that any obligation placed on MVPDs should
apply only ``to navigation devices purchased after a certain future
date,'' and that our rule should not prohibit the use of existing
inventory after the compliance deadline. By declining to apply the
requirements to apparatus manufactured prior to the deadline, we
will ensure that MVPDs are able to utilize their existing inventory.
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When the Commission adopted a rule requiring manufacturers of
apparatus subject to Sec. 79.105 of the Commission's rules to provide
a mechanism that is simple and easy to use for activating the secondary
audio stream for audible emergency information, it gave covered
entities approximately 17 months to comply. In that proceeding, we
similarly acknowledged that covered entities ``will need some time for
the design, testing, and implementation of a simple and easy to use
activation mechanism for the secondary audio stream on covered
apparatus,'' and concluded that the time granted was sufficient to
achieve these steps. In practice, the deadline proved sufficient, with
no waiver requests filed pertaining to the requirement contained in
Sec. 79.105. Likewise, we believe that a 24-month period will provide
covered entities with sufficient time to achieve the steps necessary to
comply with the rule adopted herein.\58\
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\58\ Some industry commenters ask for an extended compliance
timeline, arguing that this would be consistent with the timeframe
needed for product development and our prior implementation of CVAA
accessibility rules. However, such longer timeframes were justified
when the Commission adopted more extensive accessibility
requirements than we are adopting in this Order. For example, we
established a three-year compliance period in the initial Report and
Order implementing sections 204 and 205 of the CVAA because there we
adopted multiple requirements related to accessible program guides
and menus and closed captioning and audio description activation
mechanisms. Additionally, while CTA suggests that a minimum of five
years would be needed to comply with a ``consistency and
persistence'' requirement, we find that the narrow approach we adopt
to the ``consistency and persistence'' requirement does not justify
a longer timeframe. Industry commenters have failed to provide the
details necessary to support a compliance timeline longer than two
years here.
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We decline to adopt a later compliance deadline for certain mid-
sized and smaller MVPDs, as ACA Connects requests, because we find that
such an approach is unnecessary and unworkable here. First, a longer
deadline for smaller MVPDs is unnecessary because a compliance deadline
based on the date of manufacture will ensure that MVPDs can utilize
their existing inventory, and because MVPDs will not need to rely on
their market power to compel manufacturers to comply since the rules
explicitly apply to both entities. Second, a longer deadline for
smaller MVPDs is unworkable because it would result in a situation in
which provision of a given device that was manufactured after the
deadline applicable to manufacturers, but before the deadline
applicable to smaller MVPDs, would be a violation for the manufacturer
but not the MVPD. We note additionally that an extended deadline for
mid-sized and smaller MVPDs was justified when the Commission adopted
multiple accessibility requirements in the initial Report and Order,
whereas here we adopt a single requirement for accessible closed
captioning display settings. To the extent particular MVPDs find that
they are unable to comply with the requirements adopted herein, the
waiver or exemption procedures discussed above are available to them.
Final Regulatory Flexibility Analysis. As required by the
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission
has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to
the Third Report and Order. In summary, the Third Report and Order
requires closed captioning display settings to be ``readily
accessible.'' The action is authorized pursuant to the Television
Decoder Circuitry Act of 1990, Public Law 101-431, 104 Stat. 960, and
the authority found in sections 4(i), 4(j), 303(r), 303(u), and 330(b)
of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
154(j),
[[Page 66281]]
303(r), 303(u), 330(b). The types of small entities that may be
affected by the action fall within the following categories: Cable
Television Distribution Services, Cable Companies and Systems (Rate
Regulation), Cable System Operators (Telecom Act Standard), Direct
Broadcast Satellite (DBS) Service, Satellite Master Antenna Television
(SMATV) Systems also known as Private Cable Operators (PCOs), Home
Satellite Dish (HSD) Service, Open Video Systems, Broadband Radio
Service and Educational Broadband Service, Incumbent Local Exchange
Carriers (Incumbent LECs), Competitive Local Exchange Carriers (LECs),
Radio and Television Broadcasting and Wireless Communications Equipment
Manufacturing, and Audio and Video Equipment Manufacturing.
The projected reporting and recordkeeping requirements include that
covered entities must notify application developers about the
application programming interface (API) or similar method by which
covered MVPDs providing navigation devices must expose closed
captioning display settings. This notification can be accomplished by
any reasonable means. More generally, in the event that an allegation
of non-compliance arises against an entity, regardless of the size of
the covered entity, it will need to demonstrate how it has complied
with the applicable requirements. For example, if there is an
allegation that a covered entity has not provided the required employee
training, it could refute that allegation by reference to training
materials or a training schedule. The Third Report and Order permits
small and other covered entities to seek exemptions from the adopted
requirements on the basis that compliance is not technically
feasibility and/or not achievable, pursuant to section 303(u) of the
Act and consistent with our precedent in the IP Closed Captioning
Order.\59\ To demonstrate that compliance is not achievable--cannot be
accomplished with reasonable effort or expense--or is not ``technically
feasible'' will require small and other entities to have records, and
to make a filing with the Commission to substantiate such claims. Small
and other entities will also have to keep and be able to produce
records associated with their compliance in the event they are subject
to a dispute or complaint about accessibility.
---------------------------------------------------------------------------
\59\ Note that in accordance with the statute, achievability
only applies to covered apparatus that use a picture screen less
than 13 inches in size, whereas technical feasibility may apply to
any covered apparatus.
---------------------------------------------------------------------------
The other compliance requirements that are applicable to covered
small entities include the adoption of a rule that requires
manufacturers and MVPDs to ensure that consumers are able to readily
access user display settings for closed captioning on covered
apparatus. To determine whether particular settings are readily
accessible, the Commission requires compliance with the following
factors: proximity, discoverability, previewability, and consistency
and persistence. The Commission does not otherwise dictate the precise
manner of compliance as long as such settings are readily accessible.
This approach will ensure that consumers who are deaf and hard of
hearing can easily access closed captioning display settings, while
still giving small and other covered entities flexibility in the manner
of compliance and allowing companies to develop innovative solutions
for accessibility.
The Chief Counsel for Advocacy of the Small Business Administration
(SBA) did not file any comments in response to the proposed rules in
this proceeding.
To minimize the significant economic impact the rules adopted in
the Third Report and Order may have on small entities, in the Second
FNPRM the Commission inquired whether the provisions of section 303(u)
of the Act that allow the Commission to tailor its rules, as necessary,
to small entities for whom compliance with such rules is economically
burdensome should apply. Consistent with our determination that Section
303(u) of the Act should apply, we considered and find that small
entities are able to avoid potentially economically burdensome
compliance with the requirements in the Third Report and Order to
ensure that users can readily access closed captioning display settings
if they are able to demonstrate to the Commission that such compliance
is not ``achievable'' (i.e., cannot be accomplished with reasonable
effort or expense, with the provision limited by statute to apparatus
that use a picture screen less than 13 inches in size) or is not
``technically feasible.'' Two of the four statutory factors that we
must consider in assessing achievability are particularly relevant to
small entities: (i) the nature and cost of the steps needed to meet the
requirements, and (ii) the technical and economic impact on the
entity's operations.
In general, we afford covered entities flexibility in how they make
closed captioning display settings readily accessible to consumers, and
will determine whether settings are readily accessible to consumers by
evaluating the following factors: proximity, discoverability,
previewability, and consistency and persistence. This approach will
ensure that small and other covered entities can choose how to make
closed captioning display settings available, as long as such settings
are readily accessible to consumers, enabling these entities to decide
what works best for them. Our approach will also allow the Commission
to address the impact of the rules on individual entities on a case-by-
case basis, and to modify application of our rules to accommodate
individual circumstances thereby potentially reducing the costs of
compliance for such entities. The Commission's adopted definition of
the four required factors that we will evaluate to determine whether
small and other entities have met their obligation to make display
settings readily accessible to consumers is based on a March 2024 joint
proposal filed in the record by NCTA and certain Consumer Groups. The
meaning of the ``discoverability'' factor evolved from a previously
proposed meaning, which industry objected to as being too subjective,
to a meaning that focuses on consumer testing and employee training.
This objective definition should make it easier and simpler for covered
entities to ensure they are in compliance. Similarly, the meaning of
the ``consistency and persistence'' factor evolved from a previously
proposed broader definition, which industry objected to as raising
several problems, to a meaning that focuses largely on the use of
application programming interfaces (APIs) or comparable tools and the
coordination between covered entities. This narrow approach should also
make it easier and simpler for small and other covered entities to
comply. Additionally, rather than requiring compliance for third-party,
pre-installed applications, the Commission explicitly states that the
readily accessible requirements do not apply to such applications,
which is consistent with the March 2024 joint proposal and will further
ease compliance burdens for all entities, including small entities.
In response to commenter ACA Connects, as discussed above, the
Commission considered and rejected the request for a blanket compliance
exemption for small and medium-sized providers of legacy navigation
devices, a streamlined waiver process for such providers, and a later
compliance deadline. Our decision is consistent with prior orders, and
the record did not provide sufficient justification for the Commission
to adopt any other
[[Page 66282]]
proposed alternatives. To the extent particular small entities find
that they are unable to comply with the requirements adopted in the
Third Report and Order, the waiver and exemption procedures are
available to them.
Based on these considerations, the Commission believes that we have
appropriately considered both the interests of individuals with
disabilities and the interests of small and other entities who will be
subject to the rules, consistent with Congress's intent that ``to the
fullest extent made possible by technology,'' persons who are deaf and
hard of hearing ``should have equal access to the television medium.''
Paperwork Reduction Act. This document contains new or modified
information collection requirements subject to the Paperwork Reduction
Act of 1995 (PRA), Public Law 104-13. It will be submitted to the
Office of Management and Budget (OMB) for review under section 3507(d)
of the PRA. OMB, the general public, and other Federal agencies will be
invited to comment on the new or modified information collection
requirements contained in this proceeding. In addition, we note that
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law
107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific
comment on how the Commission might further reduce the information
collection burden for small business concerns with fewer than 25
employees.
Ordering Clauses. Accordingly, it is ordered that, pursuant to the
Television Decoder Circuitry Act of 1990, Public Law 101-431, 104 Stat.
960, and the authority found in sections 4(i), 4(j), 303(r), 303(u),
and 330(b) of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 154(j), 303(r), 303(u), 330(b), this Third Report and Order is
adopted, effective thirty (30) days after the date of publication in
the Federal Register.
It is further ordered that, pursuant to the Television Decoder
Circuitry Act of 1990, Public Law 101-431, 104 Stat. 960, and the
authority found in sections 4(i), 4(j), 303(r), 303(u), and 330(b) of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j),
303(r), 303(u), 330(b), the Commission's rules are hereby amended as
set forth in Appendix A, effective thirty (30) days after the date of
publication in the Federal Register. Compliance with new Sec.
79.103(e) of the Commission's rules, 47 CFR 79.103(e), which may
contain new or modified information collection requirements, will not
be required until the Office of Management and Budget has completed its
review of any information collection requirements that the Media Bureau
determines is required under the Paperwork Reduction Act or two years
after the date of publication in the Federal Register, whichever is
later. The Commission directs the Media Bureau to announce the
compliance date for Sec. 79.103(e) by subsequent Public Notice and to
revise Sec. 79.103(e) accordingly.
It is further ordered that the Commission's Office of the Secretary
shall send a copy of this Third Report and Order, including the Final
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
It is further ordered that the Office of the Managing Director,
Performance Program Management, shall send a copy of this Third Report
and Order in MB Docket No. 12-108 in a report to be sent to Congress
and the Government Accountability Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 79
Cable television, Communications equipment, Satellite
communications, Television.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 79 to read as follows:
PART 79--ACCESSIBILITY OF VIDEO PROGRAMMING
0
1. The authority citation for part 79 continues to read as follows:
Authority: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310,
330, 544a, 613, 617.
0
2. Amend Sec. 79.103 by revising the section heading and adding
paragraph (e) to read as follows:
Sec. 79.103 Closed caption decoder and display requirements for
apparatus.
* * * * *
(e) Access to closed captioning display settings. Manufacturers of
apparatus subject to paragraph (a) of this section and multichannel
video programming distributors must ensure that consumers are able to
readily access user display settings for closed captioning on apparatus
designed to receive or play back video programming transmitted
simultaneously with sound, if such apparatus is manufactured in the
United States or imported for use in the United States and uses a
picture screen of any size, if technically feasible, except that the
requirement does not apply to third-party, pre-installed applications,
and for apparatus that use a picture screen of less than 13 inches in
size the requirement is mandated only if doing so is achievable as
defined in this section.
(1) In determining whether closed captioning display settings are
readily accessible, the Commission will require compliance with the
following factors:
(i) Proximity. This factor considers whether the closed captioning
display settings are available in one area of the settings that is
accessed via a means reasonably comparable to a button, key, or icon.
(ii) Discoverability. This factor considers whether the user has
the ability to easily find the closed captioning display settings. To
ensure settings are discoverable, manufacturers of apparatus subject to
paragraph (a) of this section and multichannel video programming
distributors are required to:
(A) Conduct usability testing to determine if caption display
settings can be easily found by working with consumers and disability
groups as part of the testing process;
(B) Make good faith efforts to correct problems identified during
the consumer testing process; and
(C) Train customer-facing employees on how to advise customers with
regard to caption display settings.
(iii) Previewability. This factor considers whether viewers are
able to preview the appearance of closed captions on programming on
their screen while changing the closed captioning display settings.
(iv) Consistency and persistence. This factor requires covered
entities to:
(A) With regard to an MVPD's provision of navigation devices,
expose closed caption display settings via an application programming
interface (API) or similar method that an over-the-top application
provider can use upon launch of their application on the device. The
API or similar method must enable the application provider to use the
device-level caption settings for its own content, if it chooses, and
covered entities must notify application developers about this API or
similar method through any reasonable means;
(B) With regard to providing an MVPD's own video programming
application hosted on third-party devices, utilize the operating
system-level closed caption settings of the apparatus upon launch of
the application on the device; and
[[Page 66283]]
(C) Ensure that apparatus they manufacture make closed caption
settings available to applications via an API or similar method.
(2) Compliance with this requirement is required for devices that
use next generation operating systems deployed after FCC publishes a
rule in the Federal Register establishing the compliance date.
Note: The compliance date is after the Office of Management and
Budget has completed its review of any information collection
requirements that the Media Bureau determines is required under the
Paperwork Reduction Act or August 17, 2026, whichever is later.
(3) This paragraph (e) places no restrictions on the importing,
shipping, or sale of apparatus that were manufactured before August 17,
2026.
[FR Doc. 2024-17479 Filed 8-14-24; 8:45 am]
BILLING CODE 6712-01-P | usgpo | 2024-10-08T13:26:21.210313 | {
"license": "Public Domain",
"url": "https://www.govinfo.gov/content/pkg/FR-2024-08-15/html/2024-17479.htm"
} |